UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ■ / /> i c-v I -c 1-t.^y^ c THE LAW OF EXECUTORS AND ADMINISTRATORS, By SAMUEL TOLLER, Esq^ G? Lincoln's inn, barrister at law, SOR.TE SUTREMA PERMUTAT 0OMIKOS, ET CEDIT IN ALTERA JURA. HOS.. LONDON: PRINTED BY A. STRAHAN, E,AW-PRINTER TO THE KINO's MOST tXCELLENT MAJESTYj FOR J. RUTTERWORTH, FLEET-STREET. I 800. r T57?7e ^ PREFACE, 'T^HE fubjecl of the following Ireatifc comprehends a great variety of points, in which the public are very generally inter- efted. In the ordinary courfe of human affairs, almod all perfons at fome period of their lives are called to exercife the office of a perfonal reprefentative, or to tranfa6l bufi- nefs with fuch as are invefted with it. An attempt, therefore, to unfold it's nature, to defcribe it's rights, and to point out it's duties, as there is no modern v^ork of any repu- tation which profefTes exclufively to treat of thefe topics, will, I perfuade myfelf, be regarded with favour. The book of the moft diftinguifhed meiit on this fubject, is that which is tnatled, the A 3 ". Ofiice n^li^^o ( vl ) «* Office and Duty of Executors j" and which, although it bear the name of Thomas V/entv/orth, is now generally afcrlbed to Mr. Juftice Dodcleridge. It was firft pub- lilhed anonymoufly in the year 164/ ; to the third edition, printed in the fame year, was prefixed for the fiill time the fictitious name 1 have juft mentioned. The eighth edi- tion appeared in 1689, to which Chief Baron Comyns in his Digeft conftantly refers. In 1703, the ninth edition was publidied, with a Supplement by H. Curfon ^ the twelfth edition was- publifned in 1762, v/ith refer- ences, by a Gentleman of the Inner Temple, and in 1774, the thirteenth and laft edition, by Mr. Serjeant Wilfon, Of the original w5rk it is no undue praife to aflert, that it is worthy the pen of fo learned an author. It is calculated tci engage the attention of the reader, and con- tains very found principles, and authentic information. At the fame time it muft be eonfefled, that it is often uncouth, and fomeliiiies obfcure, in it's language j altoge-. tlxex ( vii ) ther inartificial in it's method ; and of necef- iity defedive in regard to later adjudica- tions, which, efpecially in equity, are very numerous and important. It is alfo filent rerpe6ling the office of an adminiflrator. Nor is it much indebted to it's fe-'eral edi- tors. The Supplement, as it is called, is a mere co!le6lion of cafes, without order, and without precifion. Under thefe circumfbances I was induced to compile the prefent treatife. The fubj xt appeared to me capable of an arrangement, more natural and diftinct, than any which has hitherto been adopted. Such arrangement 1 have endeavoured to form, and to prcferve. It has, alfo, been my obje6l to comprife the multifarious matrer, of which I have been treat] n 2:, within as narrow limits as it would, admit; and to exprefs myfelf at once with brevity and clearnefs. The auihorities I have ftated very fully in the margin, v.ita a view of faciUtating farther refearches into points of a nature fo intereding, and of io A 4 per- ( viil ) perpetual a recurrence. And it uill afford me much fatisfadlon if I (liall have con- tributed to extend fo ufcful a fpccies of Jaiow ledge. A TABLE OF THE CONTENTS. BOOK I. Of the appointment of executors and ad- miniflrators. CHAP. I. PAGE Of wills and codicils — who may make them — zvho not — how they are annulled - - i CHAP. If. Of the appointment of executors - - ii Se6l. i. Who may be an executor — who not- — how he may be appointed — — ib. Se£t. 11. Of an executor de Jon tort — how a party .becomes fo — — ~ '7 6e6l. ill. Of the renunciation or acceptance of an executor/hip — — — 20 Se6l. ' A TABLE OF THE CONTENTS. PAGE Se6t. iv. Of an executor before probate of the will - - - 24 Se£i. V. Of the probate — -jiiiifHiflion of granting the faTie — of bona notahil'ta — 27 Seft. vi. Of the probate of nuncupative wills 35 Seft. vii. Of the prf>bate of the wills of fc^mcn, and marines — — -36 SeQ.vlii. Of the probate unrler fpecial ciicutn- ftances - — — 41 Se£f. ix. Oi caveats, revocation of probates, and appcr.is - - - 47 Seel. X. 1 Lc t ■ itobate — 1 ^fs of the fcime — what IS cvidLncc of probate — effect of its revocation — — — 50 CHAP. III. Of the appointment of admhiiftrators, SeQ. i. Of general adminiftrations — origin there- of — who entitled — of conlanguinity 54 Se£i. ii. Of the analogy of adminiitiaiions to pro- bates ' — — - 66 Se£l. iii. In regard to the a6ts of a party entitled, previous to the grant — ~ ^7 Secf. iv. Praclice in regard to adminiflrations - 68 ^cdi. v. Of fpecial and limited adminiflrations 'yo Se6l. vi. Of adminiflrations to inieftate feamen and maiintrs - — ~ 79 Sefl, vii. Of adminiflrations in cafe of the death of the adjoiniflrator, or of the executor, intellate - - - 84 Seft.viii. How adininiflration fiiall be granted — when void — when voidable — -of re- pealing the fame — how a repeal aflfecls tnejne ads — - -88 8 BOOK A TABLE OF THE CONTENTS. xl BOOK IL Of the rights and interefls of executors and adminiftrators, C H A P. I. PAGE Of the general natwe of an executor'* s or admi- nifirator^s inter cfl. — Dijiribution of the fub- jed with reference to the different f pedes of the deceafecVs property - - loi CHx\P. II. Of the interefl of an executor or adminifirator in the chattels real and per fonal. Se6l. i. Of his intereft in the chattels real - 105 Sefl. ii. Of his interell in the chattels pejTonal, animate, vegetable, and inanimate - 112 CHAP. TIL \ Of the interefi of the executor or ad?niniJlrator- infuch of the chattels as were not in the de- ceafed's poffcjjion at the time of his death. Se£l. i. Of his interefl in chfes in aftion - I20 Seel. ii. Of interefls veded in him by condition, by remainder, or increafe, by afhgn- ment, by limitation, and by cle^liun 125 CHAR. xli A TABLE OF THE CONTENTS. C H A P. IV. Of chattel inicrejis which do not -vejl in the exe- cutor or admini/irator, PAGR Se£t. i. Of chattels real, which go to the heir 135 Seft. ii. Of chattels. perfonal, which go to the heir : and herein of heir-looms - 14.8 SeCt. ill. Of chattels, which go In fuccefTion 155 Se£t. iv. Of chattels, which go to a devifee, or remainder-man : and herein of em- blements, and, heir-looms r- - 157 CHAP. V. Of the chattels which go to the widow, Se£l. i. Of the chattels real, which go to the widow : and herein alfo of inch chat- tels real as belong to the furviving hufband - - - 163 iSeft. ii. Of the chattels perfonal, which go to the , widow: and herein of fuch perfonal chattels of the wife as go to the fur- viving hufband - - l6p Se6l. ill. Of the wife's paraphernalia - - 17H CHAP. VI. Of the intere/^ of a donee moYiis C2iu^3. - ?Si CHAP. VII. How effeds, which an executor takes in that character 3 may become his ow7i - - 185 CHAP. I A TABLE OF THE CONTENTS. xlli CHAP. viir. -» . PAGE Of the intereji of an adminiftrator^ general and f pedal — cf a married woman executrix^ or adminiftrairh— -of fever al executors^ or admi- nljlrators — of the executor of an executor — > cf an adminifirator de bonis non — of an 0t executor de fon tort - - - 187 BOOK iir. of the powers and duties of executors and adtniniftrators. CHAP. I. Of the funeral — of making an inventor'^ — of colleding the effe^s, Se8;. i. Of the funeral - — _ iq^ Se6l. ii. Of the making of an inventory by the executor or admlniftrator - - 19a Se6t. iii. Of his collefting the efre6ls - 198 CHAP. II. Of his faymcnt of debts in their legal order. Se6l. i. Of debts due to the crown by record, or fpecialty — of certain debts by parti- cular ftatutes - _ _ 20%. Se£l. ii. Of debts of record in general — of judgments : and herein of decrees— of ftatutes, and recognizances — of docquctting judgments - - 204 Sea xJv A TABLE OF THE CONTENTS. PAGE Sect. ill. Of debts by fpecialfv — and herein of rent — of debts by (imple contrail 218 Se6K iv. Of a creditor's gaining; priority by legal, or equitable procefs — of notice to an executor of debts by fpecialty, or fimple contra6V - - - 225 CHAP. III. Of an executor'* s right to retain a debt due to him from the tejlator — under what limita- tions - - - - 2'2 CHAP. IV. Of the payment of legacies. Se6l. i. Legacy, what — who may be legatees — who not — legacies general and fpc- cific — lapfed and veiled — — 234. Stft. ii. Of the executor's alTent to a legacy. — on what principle necenary— what ftiall amount to fuch aflent — alTent exprefs, or implied — abfolute, or con- ' •' ditional—^has relation to the teflator's death — when once made irrevocable — when incapable of being made 239 Se<£l. iii. When a legacy is to be paid — to whom — -of payment in the cafe of infant legatees — of a conditional payment of a legacy — af payment of intercH on legacies — of fuch payment where the legatees are infants— of the rate of intereft payable on legacies - 245 Se£l. iv. Of the ademption of a legacy — -257 Se6l. V. Of cumulative legacies - - 261 Sea. A TABLE OF THE CONTENTS. xv PAGE Se6l. vi. Of a legicy's being in fatisfa£^ion of a debt — — — 26'2 Seft. vii. Of the abatement of legacies — of the refu'iding of legacies — of the refi- duLim - " - _ 265 Se6l. viii. Of an executor's being legatee: and herein of his aiTenr to his o-.vn legacy 269 Sedl. ix. Of the teftator's appointing liis debtor executor — when the debt (hail be regarded as a fpccific bequefl to him — when not — — — 27 2 Se6i. X. Of the refidue undifpofed of by the will, when it Ihall go to the executor — when not — - _ 275 [In numbering the chapters the mimerui V. has bmi accident ally 0Tnltted.~\ CHAP. VI. Of the incompetency of an. infant ey:ecutor — of the ad: s of an executor durante minoritate— of a married woman executrix — of co-exe- cutors — of executor of executor — of executor de fon tort - - - - 279 CHAP. VII. Of dijiribution. Se6l. I. Of'diftribution under tfie ftatute : and herein of advancement — — 290 Seft. ii. Of diftribution by the cuflom of Lon- don _ _ _ 207 Se£l. iii, Of diftribution by the cuftom of York — and of Wales - - 3 1 S CHAP. 3cvl A TABLE OF THE CONTENTS. CHAP. VIII. TAGt Of the powers and duties of limited admini- Jirators — of joint adminijtrators - -321 CHAP. IX. ' Of ajjetsy as dijiinguifjjed into real and per- fonal, legal and equitable — of marfhaUing ajfcts - - ' 'h'^S CHAP. X. Of a de'vajlavii - - ^ Zll CHAP. XL Of remedies for and againft executors and adminijlratorsi at law, and in equity, Scft. i. Of remedies for executors and adminl- llrators at law - _ - 343 Sc6l. ii. Of remedies for executors and admini- ftrators in equity - - 356 Seft.iii. Of remedies at law againft executors and adminiftrators - - 359 Seft. iv. Of remedies againft executors and ad- miniftrators in equity - - 372 Scft. V. Of remedies againft executors and ad- miniftrators in the ecclefiaftical court 376 APPENDIX. Duty on Proha/es and Adminlf rations — - 3°4 Duty sn Legacies -* m, ^ 386 THE THE LAW OF EXECUTORS AND ADMINISTRATORS. B O O K I. OF THE APPOINTMENT OF EXECUTORS AND ADMINISTRATORS. CHAP. L OF JVILLS y!MD COBICHS—JVHO MJY MJKE THEM— WHO NOT—HOW THEY ARE ANNULLED. EFORE I enter on the fubjed of this treatlfe, I fhall ftate fome general propofitions in re- gard to wills* A will or teftament is defined to be the legal declaration of a party's intentions, which he directs to be performed after his death \ » 2 Bl. Com, 49y, i;«®' A will may relate -either to real, or to perfonal property. In the former cafe, it is denominated a B devife 14«. 2 I'll. Lorn. 37-501 OF WILLS AND CODICILS. Book L devife, and is conficlered in the light of a convey- *f4Bac. Abr. ance ''. By the (latute of frauds and perjuries, 29 Car. 2. c. 3. it lliall not only be in writing, but ligned by the teflator, or feme other, perfon in his prefence, and by his exprcfs direQions, and be fub- fcribcd ia his prefeiice by three or four credible -u'itneflcs. ,. A will, as it refpecls perfonal property, is of two fpecies, written, and nuncupaiive; if of the former^ it may be' coinniitted to writing either by the . teiiator himfelf or by his directions: nor is the fubreripLioji of his name to the inftrument, nor' the allixing of his feal to the fame, nor the pre- fence of witnciTes at its publication, eflential to it3 validity ; yet it is fafer and mere prudent, and leaves lefs in the breafl of the ecclcfiaftical judge, if ic be figned or fealed by the tePLator, and pub- • aBi. Com. liflied in the prefence of witneifes ^. 501, 5»'- Vide Com. Hep. 451. With regard to nuncupative wills, the unqua- lified allowance of them was found produ6live of the greatelt frauds, and it became necefiary to fub- jeO; them to very flritt regulations. Accordingly, by the flat. 29 Cat\ 1. above mentioned, it is enabl- ed, that nofuch will fliall be good where the eftate thereby bequeathed fhall exceed the value of 30 1., that is not proved by the oaths of three vvirneifes at the leaft, who were prefent at the making there- of, (who, by the (fat. 4 k 5 An?!, c. 16. mufL-bc fuch as are admiflible on trials at common law), nor unlefs it be proved, that the tellator, at the time Cm. I. O? WILLS AND CODICILS. time of pronouncing the fame, did bid the perfons prefent, or fome of them, bear witnefs that fuch was his will, or to that effedt ; nor, unlefs fuch nuncu- pative will were made in the time of the lad ficknefs of the deccafed, and in his dwelling-houfe, or where he had been refident for the fpace of ten days or more, next before the making of fuch will, except where fuch perfon was taken fick, from home, and died before his return ; nor, after fix months palt after the fpeaking of the pretended teftamentary words, fliall any teftimony be received to prove any will nuncupative, except the teftimony or the fubftancc thereof were committed to writing within fix days atccr the making of the laid will. Soldiers in a£lual military fervice, and mariners or feamen at fea, are exempted from the provifions of this did:. The former may at this day make nuncupative wills, and difpofe of their goods, wages, and other perfonalcha«ccls, without thofe forms and folemnities which the law requires in other cafes '^. ^ i Bi. Com. 417. Stat. 39 Car. 2. c 3. But, with refped to the latter, this licenfe no ^- *3- 5 w. 3, longer exids. The perpetual impofitions pradlifed on this meritorious and unfufpeQing body of men, induced the legiflature fo adopt a new policy, and to diveit them of a privilege, which, inftead of be- ing beneficial to them, was perverted to purpofes the mod injurious, B 2 Many c. 21. f. 6. . ^ OF WILLS AND CODICILS. Book I. Many falutary regulations are accordingly pre- fcribed by the Itatutes 26 Geo. 3. c. 63. and 3* Geo. 3. c. 34. in regard to the making and probate of the wills of petty olllcers and feamen in the king's fer/ice, and of non-commillioned officers of marines, and marines, ferving on board a fiiip in the king's fervice, which I Ihall defer fpecifying till I treat of probates. A codicil is a fupplement to a will, annexed to it by the teftator, and to be taken as part of the ianie, either for the purpofe of explaining or alter- ing, or of adding to, or fubtradling from, his for- « a Bi. Com. h^qx difpofitions \ ?oo. Svvmb. Part I . f. 5. A codicil may be annexed to the will either ac- tually or conflrudively. It may not only be writ- ten on the fame paper, or affixed to or folded up with the will, but may be written on a different paper, and depofiicd in a different place. A codicil may be annexed either to a devife of lands, or to a w;ll of perfonal eflate. To alter the former, a codicil muff by the ftatute of frauds be in writing, and figned by the devifor in the prefence f i.P. Wm?. of three, or four witneffes declaring the fame''. fbld' ^vid°'^' ^' To a will of perfonal eftate it may be either written Doiigi. 244, or nuncupative, provided, in cafe of its being the latter, it merely fupply an omiffion in the inftru- inent. Therefore A. having difpofed of part of his effects by his will in writing, may difpofe of the refidue Not. 2. Ch. r. OF WILLS AND CODICILS. refidue by a nuncupative codicil ^. But by the fame ^ Com. Dig. flatute fuch codicil fhall not operate to repeal or KHyim 334. alter a will. A written codicil refpecling perfonal cftate is authenticated in the fame manner as a will of fuch property. ,A will may be avoided or annulled, ift, by the incapacity of the party making it ; 2dly, by the making of another of a later datej 3dly5 by can- celling or revoking it ^ . " * Bl- Com. 502. There are three grounds of incapacity: the want of fufficient legal difcretiou ; the want of liberty or free willj and the criminal conduct of the party ' . i 1 BI. Cora.' 496, 497. To the firH: are fubjedl all infants under the age of fourteen, if males, and twelve if females '^ ; afcer ^ Off Ex. 213, that period their incapacity ceafes ; although, on !^^'^. g'^^J' °' the one hand, it has been (Irangely afferted, that Note 6. an infant of any age, even ot four years old, may make a teftament'; and on the other, he has been ' Perkins f. -. . , , P . , , ^ , . <;o3 ; but that denied berore eighteen, to be competent ^\ yet this, feems an er- as a matter of ecclefiaflical cognizance, mull be prefs^for^V determined by the ecclefiaflical law, which has pre- VideHarg.Co. r . , , , 1 » 7 B1- Cora.' eltate *". 372. I Lutw. 34 iWooddes 374. Secondly, a will may be avoided, by duly mak- ing another of a fubfequent date. No will has any . operation till after the death of the teftator ; and, therefore, if there be many fuch inftruments, the ! ui-^f^ -^^" ^^^ ^"^^ vacate all the former '. But the repub- k i ,-.1- ' , q lication of a former will, fhall fuperfede one ,• Bi;.-.. 1C-. of a later date, and re-eltablifh the firft ". The Vid.Dougi 40. ' • ' maKmg Gh. I. OF WILLS AND CODICILS. ^ making of a fubfequent codicil does not invalidate the former, unlefs it appear to be fo intended. Codicils, however numerous, may be all eftedual '. ^^J.'''"^'- P^^^- I Show, 549. The iliird mode of avoiding a will .is by burn- ing, cancelling, tearing, or obliterating the fame, by the tellator, or in his prefence, and by his di- redion and confent, or by an exprefs or implied revocation of it. Although a tefiator has macle a -".vill irrevocable in the flrongert: terms, yet he is at liberty to revoke it ; for he fhall iiot, by his own a£t or cxprellions, alter the difpofition of law, fo as to make that irre- vocable, which is of an oppofite nature "". . * 8 Co. 8z. A will may be exprefsly revoked by another will, or by a codicil in writing, either of which in cafe it relate^o real propert y, muft, by the (latute of frauds, be figne(I by the devifor in the prefence of thr.ee or four witneffes declaring the fame ". But » Vid. Dougi. by the fame ftatute no will in writing of perfonal 343/^"^^°^'' cftate fhall be repealed or altered by parol or will nuncupative, unlefs the fame be committed to writ- ing" in the tellator's life, and afterwards read to and allowed by him, and proved fo to be by three witneifes at the leail. — A will, whether of the former or the latter kind of property, may be revoked alfo by implication ; as, if a tellator, after the making of his will, mar- ries, and hath a child, this is a conflru£live revo- cation of the Vviil which be made in a ftate of celibacy ; OF WILLS AND CODICILS. Boor L • Lord Raym. celibacy "; fo marriage, and the birth of a pofthu- 44i.il*A^ui. jnous child, afford the fame inference; or rather in fuch cafes a tacit condition is prefumcd to have been annexed to the will at the time of making it, that the party did not then intend that it fhould take effe*^; if a total change fhould happen in the p 5 Term fituation of his family ^ But the prefumption, like Rep. 49- ^ji others, may be rebutted by every fort of evi- «i Br.Tciy V. dence ^. Cubitt.Doug!. If a fingle woman make a will, her fubfequent r 4 Co. Co. a marriage {hall alone revoke it ' ; nor fliall it be re- • "a Tci ni " vived by the death of her hufband \ Rep. 655. But it,has never been decided, that the marriage of a 7}2an, without the birth of iffue, fhall amount t 4 Wooddes ^q ^ revocation ^ The fubfequent birth of a ahiid fo'iaid down iliall not, of itfelf, have that cfied ". by De Grey -- .,. - C.J. sWilf. <;i6. Sed v;d. 5 Term Rep. 52. in not. « 5 Term . . Rep. 5 1, in not. CHAP. C II ) c n A p. II. OF THE APPOINTMENT OF EXECUTORS. SECT. I. Who may he an executor — who not — how he may he appointed. A N executor is he, to whom the execution of t\ a lad will and teftament of perfonal eilate, is by the tefrator's appointment confided ^ » Off. Ex. t, ■' » Bl. Com. J03. In general, all perfons are capable of fuftaining this charafter; but there are fomc exceptions, which 1 fhall prefently mention. The king, it feems, may be appointed an execu- tor, but in that cafe, as he is prefumed to be fo engaged in public affairs, as to have no leifure to attend to the private concerns of individuals, he has a right to nominate perfons to execute the truft for him, as well as auditors to whom fuch no- minees fhall account ^ 5.^xfvm^iL 54.. 4 Inft. 334. <^ Olf. Ex. It was formerly a doubt, whether corporations aggregate could be condituted executors, inafmuch as they cannot take an oath for the due execution i^V'iBL of the office =; but it now feems fettled in the af- "-om. 477. firmative', and that on their being fo named, they ^/^.^^swinb^J' may appoint perfons flyled Syndics, to receive ad- r^. 3 Bac. ijiiniitration vin.'AbrVi4o. 12 OF APPOINTING EXECUTORS. Book I. miniflration with the will annexed, who are fworn 's'ln^'^Biic like all other adminiftrators ^ Such corporations Abr. 5. as can take the oath of an executor are clearly ^Godoiph.Ss. competent ^ toff.Ex. 2u. An infant may be appointed an executor ^, and 3B3C. Abr. 8. , M , • r , L -r 1 4 Bi. Com. even a child in ventre fa mere, and then ir the ^°^' mother be delivered of two or more children at the k Godoiph. birth, they fhall all be entitled ". But an infant, Abr. i. ' although appointed, is by flat. 38 Geo, 3. c» 87. f. 6. difquahfitd from acling in the executorfliip, till he attains the lull age of twenty-one years, and an adminiflrator is fubfiituted to act for him in the interval. Before the pafling of this aft, the law * 9!f- ^'^,. *^4. deemed him capable of executinor the truft at the )i Vin. Abr. '^ . o 99- age of fcventeen '. j 3 B^c. Abr. 9. Off. Ex. aoj. 2 Bi. A feme covert is alfo capable of the office of an Sed^vide'' exccutrix, but not vidthout the confent and con- I Fonbi. 86. currence of her hufband ^ j and although flie be an 1 . x. zis- -j^^f^j^^ j£ |.^gj. hufband be of age and alfent, he fliall J Off. Ex. iq. ' , f 3Bac. Abr. 6. have the execution ot the will \ » I Bac. Abr. LitV^i-o^^b' ^^ 2^azvi friend maybe an executor', and fo ^■A\k. 46.pl. I. jiifo may an alien enemy, who came here withxA Ld.Raym.a82. \ . ^' . , u 1- r Lutw. 34. fare-Gonduct, or is commorant here by the king s ■ off. Ek. licenfe, and under his proteftioii, although he came Abr? 5.' Co. without a fafe-condu£t "* . Neither outlawry, nor Litt. lig. attainder, incapacitates a party, for he acts m f. i^^s^Bac.' auter droit, and for the benefit of the deceafed " . Abr. 5. Roll. ]sJqj. ^^^ villenaee, durin'• A difability, however, may arlfe in various j/am^^")' modes, cither from the party's being guilty of ccr- " vin. Abr. tain offences againd the eftabliflied religion; or Wm(;.''3}g. from his being the fubjeft of an enemy's country," ^^^'^ ^' and refident within it, or refident here without thc\ king's Hcenfe j or from a defect of underftanding. ' A perfon excommunicated is fufpended from ' adinp; till abfolution^. By flat. 2 Jar', i. r. c. ' ^^' ^'^■ ■' "^ -^ -> 17. 107. y. 22. a popilh recufant, convided at the time of 3 liic. Abr. 6. the teftator's death, is altogether incompetent'. Lwl^Vif.'^'^^* r I Show. ^95. By flat. 3 Car. i. c.i. f. \. if any perfon fend ^^'^''^i- Abr. another abroad, to be educated in the popifh reli- Sce4Bi.Coin. gion, or to refide in any religious houfe abroad, ^jac. i.e. 5, for that purpofe, or contribute to his maintenance f. '°' "^V^ ^ when there, both the fender, the fent, and the c- 1- contributor, are fubjeft to the fame difability. But by virtue of the flat. 31 Geo^ 3. c. 32. Roman Ca- tholics, who (hall make, take, and fubfcribe the declaration of their religious profefiion, and the oath of allegiance and abjuration, as appointed by that a6t, fhaJl be exempt from this, as well as other difabilities. By flat. 9 & 10 ^. 3. r. 32. perfons denying the Trinity, or afferting that there are more Gods than one, or denying the Chriflian religion to be X ' true, 14 OF APPOINTING EXECUT0IIJ5. Book L ' Stat. 2 5 Car. 2. c. 2. 1 Ceo. I. Stat. 2. c 13. Vide alto 1^, W. 3.C. 6. 1.6. « 3 Bac Abr. 6. I Bac. Abr. 5. J 37- Cro. Eliz. 683. Moore 431. Cai-ter 4.9. icji- Skin. 370- JMol!oy,lib. j. c. 2. f. 10. OfFEx.15.Cro. Eliz. 14a. « Lord Raym. 283. Stra. 3082. Brandon v. Kdbitt. 6 Term Rep. a 3. Briitow V. Towers. 6 Term, Rfp, 25- » 3 Bac. Abr. true, or the Holy ScrPptures to be of divine autho- rity, fliall, for the fecond offence, among other in- capacities, be difabled from being executors. Alfo, by the flatutes prefcribing the qualifica- tions for offices, perfons not having taken the oaths and complied with the other requifites for qualify- ing, who fiiall execute their refpective offices after the time limited for the performance of thofe afts, fhall incur the fame incapacity. Alienage with relation to a hodile countfy, ac- companied with refidence abroad, or refidence here without the king's permiffion, either exprefs or im- plied, is to be claffed as a fpecies of difability; for, although the cafes in refpecl: to the incapacity of alien enemies are not entirely uniform % yet this principle of exclufion, thus modified, feems clearly to exift *. Ideots, and thofe who are vifited with infanity, or whofe Intellects are deflroyed by age, diieafe, or intemperance ; fuch perfons as having been born blind and deaf, have always wanted the common inlets of knowledge, are all necelTarily incapable of the office **. The authority cf an executor, as appears by the definition, is grounded on the will, and may be either exprefs, or implied ; abfolute, or qualified j exclufive, or in common with others. He Ca. II. OF APPOINTING EXECUTORS. , ^ He may be exprefsly nominated either by a written or by a nuncupative will \ « dT. Ex. Abr. aS. He may be conftruftively appointed merely by m Vin Abr. the teflator's recommending or committing to him the charge of thofe duties which it is the province of an executor to perform, or by conferring on him thofe rights which properly belong to the office, or by any other m.eans from which the teflator's in- tention to inveil him with that charadler may be diftindly inferred. As if a Vv'ill direds that A. ihall have the teflator's perfonal property after his death, and after paying his d.ebts ihail difpofe of ic at his own pleafure ; or declares that A. fhall have the adminiftration of the teflator's good^ ; this alone conflitutes A. an executor accordino; to the tenour. So, where the teftator, after giving various legacies, appointed that Jbis, debts and legacies b*- ing paid, his wife fliould have the refidue of his goods, on condition that fhe gave fecurity for the performance of his will : this was held to be fuflicient to make her executrix. And fo where an infant was nominated executor, and A. and B. overfeers, with this direclion, that they fhould have the eontroul and dilpofition of the teftator's effects, and fnould pay and receive debts till the infant yjBl.Com came of age': they were held to be executors in ^°l- ^ V "^ Oft. Ex. 52, 9. the mean time ^. Dyer co. '3. Eac. Abr. 27. ^ II Vin. Abr. His appointment maybe either abfolute or quali- 136. Godolpb. fied. It is abfolute when he is confticuted certainly, ^'(^ mini a, a '"" immediately, and without any reilriclion in regard *';;" (^:) to ■ Ambl. 364. J 5 OF APPOINTING EXECUTORS. Book!. to the teftator's effefts or limitation in point of time. It may be qualified, as where A. is appointed to be executor at a given period after the teftator's death 5 or where he is appointed executor on his coming of age, or during the abi'cnce of J. S. ; or where A. and B. are mad^ executors, and B. is reflriclcd from ading' during A.'s life ; or where A. and B. arc: named executors, and if they will not accept the ofEci-j then C. and D. are fubdituted in their room ; or where A. is appointed executor oil condition that he gives fecurity to pay legacies, or generally to perform the will. So a teflator may make A. an executor in refpeO: to his plate and houfchold goods, B. in refped to "his cattle, C. as to his leafes, and D. in regard to his debts ; or appoint A. an executor for his effecls in one county, and B. executor for his effects in another, or (which feems more rational and expedient) he may fo • divide the duty where his propertyjs in various countries. So he may nominate his wife execu- trix during the minority of his fon, or fo long as 2 Off.Ex. ir— fhe continues a widow ''■. II .3 Bac.Abr. sS*— 50. . II vin. Abr. . Laflly, an executor nfay be apponited folely, or ^0 . li I 139- jj^ conjundion with others ; but in the latter cafe, they are all confidered by the law in the light of » 3 Bac. Abr. an individual perfon '. ' 50. Off. Ex. ■^ SECT. t? Ch. II. OF AN EXECUTOR CE SON TORT. SECT. II. Of an executor de fon tort — how a party heco?nesfo. HAVING thus treated of executors regularly condituted, I proceed now to the confideration of another fpecies of them, who derive no autho- rity from the teftator, but who affume the office by their own intrufion and interference. Such a one is ftvled an executor de Ion tort., or an executor of ^P^"?^ ^7«« ■^ •' 3 Bac. Abr. 20. his own wrong; ^ Swinb. 6. i.%%. No a. a Bl. Com 507. Various are the ads, which conftitute ari exe- i»Vin. Abr. 210. cutor of this defcription % fuch as his takino: pof- feffion of, and converting the alTets to his own ufe^ ; ^i- n Vin.* paying the deceafed's mortgages, or other debts or '' ^°'^* legacies out of them ; fuing for, receiving, or re- off Ex! ^172.° leafinff the debts due to the eflate^: lelzlnp- a " ^i"- ^^r, o ^ '0 aio, 211. fpecific legacy without the aflent of the lav/ful exe- b g^i^^, g Cutor '^; entering on a leafe or term for vears •*, or ^'- -^' ^'^ *• n , . , . Dyer io<;. an eimte pur aiiter vie^, (which is mad^ affets by Roll. Abr. 918, {kztyigCar: 2. e. 3.) efpecially, if he enter in right c ^ Sac. Abr, of the deceafed, and does acls on the land, which *^- Godoiph. belong to the office: of an executor, as turning the j swinb. 6. Cattle upon it : delivering; to the widow more an- ^•^-- ^°^- ^ , . ° * S Bac.Abr. 22; parel than is fultable to her rank ^ ; anfwering in c carth. i56. the character of an executor to any aftion brought f Off. Ex. 175. againfl him, or pleading any other plea than ?ie e 3 Bac Abr. :lNques executor s. And all other afts of a fimilar ][[ Godolph, nature, however flight '', may have the fame con- h ^ Term fequence, as in one eafe, merely takinor a bible, R'^pioo.Dyet L ' and Abr. 2i%, j.g OF AI^ EXECUTOR DE SON TORT. Book L i 3 Bic. Abr. and in another a bedftead', were held fufficient, 24- o). 9. inj^fmuch as they are the indicia of the perfon fo in- terfering being the reprefentative of the deceafed. So if J. S. be appointed by the ordinary to colled the effe<^l:s, and he exceed his authority, and fell jOiT.Ex.174. any of them, evsn fuch as are perifhable ^ ; or if he had the exprefs diredion of the ordinary for fuch fale, the fame being illegal, he becomes an ^ Off. Ex. 175. executor de fon iort ". JiVin. Abr. -^ 209. So where A. the fervant of B. fold goods of C, an inteftate both before and after C/s death, in con- fequence of orders given by him in his life-time, and paid the money arifing from fuch fale into the hands of B. ; and D. had alfo, in the capacity of a fervant, fold other goods of the inteftate, on an action broucijht acrainft B. and D. as executors, for a debt due from the deceafed, they not having difcharged themfelves by payment of the money, which they had refpeclively received to the right- ful adminiftrator at the time when the action was cc^nmencedj or ^ven when they pleaded, were both ' Padgetv. adjudged liable" as executors of their own wrong '. Prieltet al. » Teim Rep. 97- So where a creditor took an abfolute bill of fale of the goods of the debtor, but agreed to leave them in his poffeflion for a limited time, before the expiration of which the debtor died, and the creditor took and fold the goods ; he was held liable to the extent of their value, as executor dff T, "tiwr.rds v. f^^ ^^j.f^ f^^ ^^q ^^^^^ q£ ^j^g deccafed ■". jHarben, a -' ' Term Rep. Ck. ii. of an executor de son tort. jq So by ftat. 43 Eliz. c. 8. if adminiflration by fraud be granted to an iafolvent perfon, who gives any of the efteds to A. or releafes a debt due from him to the intellate. A., for fo much, fliall be exe- cutor dcfon tcrt \ ° Vid. Off. Ex, i8z, 183. But there are many acts which a flranger may perform without incurring the hazard of being in- volved in fuch an executorfliip • ; fuch as locidnsr ° ^ ^^^' ^^'■' , , ,. ^. , r , . o 22. Godolph. up the goods ; directing the luneral, m a manner 93. 54- fuitable to the eftate which is left, and defraying the expences of fuch funeral himfelf, or out of the deceafed's effetls P ; makinp; an inventory of his l,^'^\^f J''^' , " •' Swinb 6. f. az. property 'i ; advancing money to pay his debts or N^ 2. 2 Bl. legacies '' ; feeding his cattle ; repairing hishoufes ; vin. Ahr'.'iQj. providing neceffaries for his children * ; for thefe "^ Swinb. ibid. are offices merely of kindnefs, and charity. ' 3 Bac. Abr, 22 Godolph. 92. And, although, as I have ftated, a party may s Swir.b. ibid» be executor de Jon tcrt of a term adually fubfift- ing, and in that cafe cannot enlarge his eflate by claiming a fee, yet if he enters generally on lands, of which there is no term in being, he cannot qualify his wrong by exprefsly claiming only a par- ticular efcate, but mull be a diffeifor in fee, and not an executor defon tort \ Nor can there, gtviQ- t 3 Bac. Abr. rally fpeaking, be fuch an executor, when there is '^\' ^^' ^^"l' a rightful executor, or where adminiflration has 9°- 2 Show, been duly granted ; for, if after probate of the ^^"^"^ will, or adminillration granted, a flranger take polTefTion of the property, he may be fued as a irefpafler by the executor or adminiftrator j but it C 2 is -20 OF THE RENUNCrATION OR Book I. is otherwife if, after taking fuch pofleffion, he claims to be executor, pays or receives debts, or pays legacies, or otherwife intermeddles in that « 3 Bac. Abr. charaftcr", for, in all thofe cafes, he becomes an Salk. 313. pi. executor 01 his own wrong. J9. II Via. Abr. 21a. Whether a man has made himfclf fuch an exe- cutor, is a queftioa not to be left to a jury, but is a conclufion of law refulting from the fads eUa- * 2 Term blifhed in evidence \ Rep. 99. SECT. III. Of the renu7idat'w72 or acceptance of an ex ecu- iorjhip. AN executor may, if he pleafes, decline to ad, ^ 3 Bac. Abr. but he has no power to aflign the office ^ On his being cited by the ordinary, purfuant to flat. 21 //. 8. c. 5. to come in and prove the will, if he negled to appear, he is punifhable by excom- urr. iu-L.n. jnunication for a contempt ". If he appear, either on citation or voluntarily, and pray time to confider whether he will ad or not, the ordinary may, though the pradice fecms now obfolete, grant *^ Cro. Eliz, letters ad colligendum in the interim " : If he re- ^^' fufe, he cannot be compelled to accept the execu- torlhip, and his renunciation is entered and re- corded in the fpiritual court before the ordinaxy. A refufal, by any ad in pais ^ as a mere verbal de. claration to that effed, is not fufficient j but, to give Jt Ch. II. ACCEPTANCE OF EXECUTORSHIP. it valldity.5 it mud be thus folemnly entered, and recorded, and then adminiftration with the will annexed will be granted to another'^. If the executor refufe to take the ufual oath, or, being a quaker, to make the affirmation, this amounts to a refufal of the office, and Ihall be To recorded \ In ca/e the ordinary himfelf is nominated execu- torj he may renounce before the commifTary '. If a party renounce in perfon, he takes an oath, that he has not intermeddled in the effefts of the deceafed, and will not intermeddle therein with any view of defrauding the creditors. But he may renounce by proxy, and then the oath is difpenfed with. An executor cannot in part refufe ; he mufl: re- fufe encirely, or not at all ^ After fuch refufal, and adminiflration granted, the party is incapable of alTuming the executorihip ^ during the lifetime of fuch adminiftrator j but, after the death of the adminiftrator, the executor may retract his renunciation, however formally made ^ but if adminiflration be committed in con^ fequence merely of his failure to appear on the above mentioned procefs, he has a right, at any future time, even in the adminiftrator's lifetime, to come in and prove the will '. C 3 If 21 J Off. Ex. St. 4. Burn Eccl. L.198. Swinb. 6. f. 12. Roll. Abr. 907. < 4 Burn Eccl. L. a.3. Ld. Raym. 363. i Off. Ex. 3«. Sii Vin. Abr. 139. Brownl. 82. 1 Salk.s97. h Swinb. 6. f. 12. 3 Eac. Abr. 4a, 43. Otf. Ex. 39. i Off Ex. ibid. Com. Dig. Ad- mon. ^B. 4.) ^^ OF THE RENUNCIATION OR Book I. If he appear, and take the ufual oath before the furrogate, he has made his election, and can- not afterwards divefl himfelf of the office, but may k Swinb. 6- f. be compelled to perform it ". 335. II yin. Abr. ao7. So if he once adminifters he is ahfolutely bound'; 1 4 Burn's -^^jk^ ^y {[at. 91 Geo. 'i. c. go. f. lo. if he admini- Eccl L. io8- . . Swinb. 6. f. 12. fter, and omit to take probste within fix months Saik.301.304. ^.-^^j. jj,g ^g.^^1^ Qf f]^^ deceaied, he is liable to the 307. « vid. infr. penalty of fifty pounds ^. The ads which amount to an adminiftration are all fuch as indicate an election of the executor- "i^ Ron^ibr fi^ip"j and within this clafs all fuch acts as confti- 9i7.iiVin. tute an executor def on for t areofcourfe compre- ^" ^°^' hended°. Hence it hath been adjudged that if he 44"! Roll. Abr. take the goods of a Granger, under an idea that 9^7' ■ they belonged to the teftator, and with an intent to adminifter them, this a£t is fufficient to charge him ; as, where the teftator was tenant at will of certain goods, and the executor feized them, fup- pofing they were part of the deceafed's effects, and intending to adminifler them, this was held to be p Roll. Abr. an eledion of the office p. But it is otherwife if the Abr. ao6. * executor takes the teflator's goods on a claim of property in them himfelf, although it afterwards appear that he had no right, fince fuch claim is expreffive of a diffisrent purpofe from that of admi- «j 3 Bac. Abr. niftering as executor ^. So if an executor fequefler 44^ Roil. Abr. gQQ^g jj^ ^l^g character of a commiifary, that is no ' Roll. Abr. alTent to the executorfliip \ 917. II Vin. Abr. 206. But Ck. II. ACCEPTANCE OF EXECUTORSHIP. ' ^^ But if there be two executors, and one of them hath a fpecific legacy bequeathed to him, and takes pofTeffion of it without the confent of his co-execu- tor, fuch a6t amounts to an adminiftration '. So ^ ^'J^'- Abr. if an executor hath refafed before the ordinary, Abr. ao6. and adminiflration hath been granted, if it appear he had adminiitered before, and thus determined his eleclion, the letters of adminiflration may be revoked, and he may be inforced to prove ^ ^ off. Ex. 4'>. If there be feveral executors, they muft all duly renounce before adminhtration with the will an^ nexed can be granted \ *" ^o^'- Abr. <)0- If fome of them renounce before the ordinary, and the reft prove the will, the renunciation is not peremptory; fuch as refufed niav, at any fubfe- quent time, come in and adminifter, and although they never acted during the lives, they may affume "^ s Co. 2?. the execution of the will after the death, of their Dyer 160." co-executors, and fhall be preferred before any Saik..?iT pi. ' ^ _ ■' 15. 3 p. Wins. executor appointed by them \ And if admi- 25f- vid.alfo, niftration be committed before a refufal by the i HTRep.'/^e! furvivinsr executor, fuch adminiftration will be s.c. ,jv;n. C 4 S£CT. ^ . OF AN EXECUTOR BEFORE PROBATE. Book T, SECT. IV. Of a7i executor before probate of the will. AS a confequence of the principle that an executor derives all his title frorn the will, his intereft is complerely veiled at the inftant of the teftator's death, and therefore before probate, that is, before the will is authenticated in the fpi- ritual court, and a copy of it delivered to him, certified under the feal of the ordinary, he may law- fully perform almofl: every a6: which is incident to 'Corn. Dig. the office % Not to mention the funeral, he may 9. Piowd. ' make an inventory, and poflefs hlmfelf of the tef- ^Term^Re tutor's effects^: he may enter peaceably into the i}?o. 3 Bac. houfe of the heir, and take fpecialties and other Ex. 34. II * fecurities for the debts due to the deceafed '^j or "^Xlk remove his goods'^: he may payor take releafes «02 299- of debts owing from the eflate : he may receive b off. Ex. 34. or releafe debts which are owing to it ^ : he may eOfF. Ex. 34.. fell, giveaway, or otherwife difpofe, at his difcre- ^ Off. Ex. 92. tion, of the goods and chattels of the teftator ^ : he may aflent to or pay legacies ^ : he may enter * •'^' on the teftator's term for years '^ : he may commence ^' ^^' actions in right of the teflator, as for trefpafs II Vin. Abr?' committed, or goods taken, or on a contract made *°4. in the teftator's life-time, although he cannot de- >> II Vin. Abr. clare before probate, fmce, in order to aflert fuch *^^' claims in a court of juftice, he mufi; produce the copy of the will, certified under feal as above mentioned, or, as it is fometimes flyled, the . letters teftamentary 5 but when produced^ they fhall Ch. II. OF AN EXECUTOR BEFORE PROBATE. iliall have relation to the time of fuing out the writ '. So if in the fame right he file a bill in equity, a fubfequent probate fhall be equally avail- able ^ ; and according to a late cafe, it feems fuffi- cient if it be obtained at any time before the hear- ing K So an executor may before probate arred a debtor to the eflate, and fnall be juftified in that aft by the relation of the fubfequent grant ^. But fuch relation Ihall not prejudice a third perfon, and therefore where the debtor, after bchig arrelled by the executor before probate, paid a debt to J. S. and continued two months in prifon, he was ad- judged not to be a bankrupt from the time of the arrell, fo as to invalidate that payment ^. An executor may alfo maintain anions on his own polTeflionj as trefpafs, detinue, or replevin, for goods or cattle of the teflator taken after the tef- tator's death • : fo if he be intitled as executor to the next prefentation to a living, and it become void, he, or his grantee, may maintain a quare im- pcdit for it before probate p. So he may maintain actions, as trefpafs or trover, for fuch of the effeds as never came into his adual pofieflion, taken or concerted after the tefta- tor's deceafe''. So he may maintain aclions on contracts either actually made with him fubfequent to that event, or arifmg by legal implication, as aifumpfit for the goods fold by him^ or for money due to the teftator, received by the defendant after the teftator's death % In all fuch cafes, the caufes of 25 ' II Vin.Abr. ao3, ct feq. Com. D'g. Admon. B. 9. Off. Ex. 36. 3 Bac. Abr.5}, ■^ 3 p. Wms. 351- ' Patten, exe- cutrix, v. Pan- lon 1 79 3, cited 3Bac.Abr,53. m Off. Ex. S\:pp| 105. RoU.Abr. 917. " II Vin. Abr. 204. 3 Bac. Abr. 53. Com.i Dig. Admon. B. 9. 3 Lev. 57. Skinn. ^^^. 87. Cooke's Bank- rupt Laws, 4 edit. 94. On Vin. Abr. 203. Off. Ex. 36. P 3 Bac. Abr. 53. Off Ex. 36. Com. Dig. Pleader. 0. 14. Dyer. 135. 1 3 Bac. Abr. 53.Carth. 154. r Off. Ex. 36, 37. in not. I Ventr. 109. Bollard v. Spencer, 7 Term Rep. 358 Ca.Temp. Hardvvicke, 204. Cockerill V. Kynafton, 4 Term Rep. 277- s Ld. Raym. 4j6, 25 OF AN EXECUTOR BEFORE PROBATE. Book t. of aftion arife fubfequent to the attaching of the plaintiff *s right, and therefore he need not defcribe «• zTcrcn Rep. himfelf as executor', and confequently no profert of the letters teftamentary is renuifite. So where a re- verfion for years is Vefled in him in that charafter, he mny avow without probate for the rent which accrued after the teilator*s death, but not for fuch « I Sali<. -.C2. 3s accrued before ". ^07. 7 Tei in kep. 359- Such are the atls, wliich an executor, although the will has not received the fand:ion of the fpiri- tual court, is warranted in performing, and which ' <>]f-E^. 3^ his death before probate will not annul ". 1 1 Vm. Abr. *■ 204. Dyer 367. On the other hand, if he has elected to admini- fter, he may alfo before probate be fued at law, or in equity, by the deceafed*s creditors, whofe rights fhall not be impeded by his delay, and to whom, as executor de jure or 4e fa6lo^ he has made himfelf ♦» Com. Dig. refponfible *. Admon. B. 9. H. Com. sso^b. iiVin. jf ^j^ executor die before probate, he is confi- ti vern. 49. dered in point of law as inteftate in regard to the * '^'^' executorfhip ', although he have made a will, and Suppi 74 7? appointed executors; and although he die after J82. II vin. taking the oath, if before the paffing of the grant. If A. be executor for a certain period, and B. be nominated executor for the time fubfequent. /ibr. 6i!. 90. y Com. Dig. Admon. B. 9 Ca. Ch. 465. J I Vin. Abr. 5^* SEC T. Admon. B. 9. and A. prove the will ; after the time is expired B. jfvin! Abr. ^lay fue without another probate ". Ch. II. OF THE PROBATE. S E C 1\ V. 27 Of the -probate, — JurifJl^ion of granting the fame — of bona notabilia. I PROCEED nov/ to confider the probate of a will. The jurifdidlion of proving wills confequent.as will be hereafter fhewn, on the pov/ef of rv^.nting adminiRrations, regularly belongs to the biftiop of the diocefe, or the metropolitan of the province, in which the parties refided at the time of their death \ But if a tellator die within Tome peculiar =■ 3 Uac Abr. jurifdiclion, which is either regal, archiepifcopal, Dig.^Admonl epifcopal, or archidiaconal : in each of thefe the |^^'j '^L^J^g; ' owner hath of common right the power of grant- ing probate. This privilege is founded on the notion of an original compofition between fuch owner and the ordinary of the diocefe for that pur- ^ ^ ^^ ^^^^ pofe ''. 39.SHlk.4.o,4.i. * 1 1 \'in. Abr. Courts baron which have had the probate of ^^' wills from time immemorial, and have always con- tinued that ui'age, are alfo intitled to this fpecies of jurifdidion. But they can claim it only by pre- fcnption^ 39.ofr.F.x.44. Salk:.4!.Cowp. By cuftom alfo the probate of wills of burgeff^s ^^^* belongs to the mayors of fome boroughs in refpecl riiiTii'i- ir "^ "^3 Bac. Abr. or lands deviiable wuhm the lame, yet as to per- ^^ ctf.Ex.4c. fonal property, the will muft be proved before the off.Ex.Suppl. ordinary ^. 3 S^t » OF THE PROBATE. Book I. 25 But in general, a probate can be granted only in the court of the ordinary, or of the metropo- litan. If all the effects at the time of the teflator's death lie within one diocefe, the executor ought regularly to appear before the biihop or his furro- gate, and prove the will. But if the teflator hath left bona notabilia, or efieds to the value eftablifhed by 92 canon Jac. 1. namely,- a hundred (liiilings in two diftind diocefes, or in feveral peculiars within the fame province; then the will mufl be proved before the metropolitan, c a Bi. Com. t>y way of fpecial prerogative ' ; whence the court 509. 3 K^c. -where the validity of fuch wills is tried, and the Com. i.icr. ofFice where they are regiRered, are called the pre- oi^vl'.fs-l^- *"og^tive court and the prerogative office, of the J Burn. Eccl. p^-Qyinces of Canterbury and York ^ So if there Roll. Abr. 909, are bona notcibiUa in thofe feveral provinces, the II m. 01.; 9. j^j.^i^|^jQ^Qpg fj^^ll jj^ g^^]^ of f hem grant probate ac- ^cV II vin! cording to the botia notahilia in their refpedive Abr. 56. pi. 7. pj.QYinces. Each of them has fupreme jurifdiction, and neither can aft within the province of the « 3 Bar. Abr. Other?. If there are bona no'abilia in different 3^. I Saik. 39. (iiocefes of one province, and in one diocefe only 2 Lev. 86. 11 . ^ ^ , r ^ 1- Vin. Abr. 76. of the Other, m refpecl to the former, the arcn- ^^' '^' bifhop jfliall have the probate, in refpect to the lat- h ofT. Ex. 4.8. ter the particular biihop \ So Ch.Ii. of the probate. 2Q So if the.teftator, not in it'mere, die in one dio- cefe, not having any goods there, but having bona iiGtahilia in another diccefe, the archbifliop ihali ':;rant the probate '. \?^^~^^^^''^^' <3 ^ KoJI.Abr. 909. 4 B'.irn. Eccl. So if the goods be in feveral peculiars of a bi- viu. Abr. 80. fliop's diocefe, in that cafe probate fliall not be granted by him, but by the metropolitan, inafmuch as peculiars are exempt from ordinary jurifdic- tion". But where the teflator dies poiTeifed of i^ 4 Bum. Eccl. goods in the dioced^ of an archbifiiop, and in a pe- Abr! 80!^ culiar of the fame diocefe, there mud be feveral probates : the archbifhop fl-iall have no preroga- tive, becaufe the peculiar was derived out of his eoifcopal iurifdidion ' . By the canon 92 Jac. i. UBum.EccT. above referred to, goods which a man has with 719. vid. iBl. him, who dies in it mere y ihall not make bona not a- ^*^"^- 3^°* lllia^:, but if a man have two houfes in different ^Vid.Off.Ex. diocefes, and refides chiefly at one, but fometimes "^"^^ * * * goes to the other, and being there for a day or two, dies, leaving no bona notahilia in the firll men- tioned houfe, probate fhall b? granted by the bifhop of the diocefe in which the teflator died, for he was conimorant there, and not there as a traveller ". « 4 Burn. Eccl. L. 191. I Salk. 37- If there ar^ bona notaUUa in England and Ire- land, feveral probates fhall be granted by the arch- bifhop or bifliop in England, and the archbifhop or bifhop in Ireland, as the cafe may require ". The o 3 Bac. Abr. probate of a bifliop's will, although he had goods only J^^^u^ Abr.^9°o8. in his own jurifdidion, belongs to the archbifhop o of 30 y 3 Bac. Ahr. 37. 4.Inft.335. s 3 B.ir. Abr. 36. Roll. Abr. 908. OF THE PROBATE. Book t. ' ? Bar. Abr. 36. 4 Burn. Eccl. L. 19^. Otf.Ex.Siippl. 27. II Vai. Abr. 75. 80. * 3 Bac. Abr. 37- * 3 Bac Abr. ^7. Godolph. 65. " 3 Bac. Abr. 37. Godolph. 6y. '*4Bum. Eccl. L. 189. Roll. Abr. 902,909. of the province ". If the tedator died beyond fea, although the goods be in one diocefe only, tli^e archbilhop is to grant the probate '^. If the pro- bate be f^ranted by a bifhop or inferior judge, when it does not belong to him, it is x'oici ; but if it be granted by the metropolitan when it does not be- long to him, it is only voidable, and is of force til! reverfed by fentence, for he hath jurifdiclion over all the diocefes vv^ithin his province '. In the above mentioned canon, Jac. i. there Is a provifion, that the jurifdiclion of thofe diocefes fliall not be prejudiced where, by compofition, or cuftom, bona notabiiia are rated at a greater fum, as in London, where by compofition they are to amount to ten pounds '. Nor is it neceifary that the deceafed fhould have left effects to the value of five pounds, in each of the feveral diocefes where they are difperfed ; if there be effects in any one diocefe other than that in which he died to the amount of five pounds, they conflitute ho7ia notabiiia'^. But if the goods in the diocefe where he died are of the value often pounds, or upwards, and he hath not left goods amounting to five pounds, in another diocefe, they fhall not be denominated bona ?2oiabiIia ". But if goods are left in two diocefes to the amount of five pounds, in the whole, they fhall be bo?ia notabiiia y and confequently fubjeft to the archbifnop's jurifdidlion % for in that cafe neither of the bifhops has anexclufive authority. Bo?ianotabiHa may confift of goods to the value of five pounds, in one Cn. II. OF THE PROBATE. one diocefe, and a leafe or term for years of that value in another, in which the lands lie '^. "^ 5 B.nc. Abr. 37> Com. Dig. Adir.ur. B. 4. Or of debts due to the deceafed, however difE- cult to be collefted, or however defperate "". "^ 3 Bac. Ahr. 47. Cow. Dig. Admor. B. 4. So it feems of a debt due from the king, for which there is no remedy but by petition L y Off. Ev-. 4^. II Vin.Abr.8ci. But if there be a bond in the penalty of five pounds, to fecLire the payment of a lefs fum, and the fame be forfeited, it (hall not be claffed among Ifona notahilia'-. And it was fo held even antecedent "- Off. Ex. 46. to the ftaiute 4 & ^Ann. c. \6.f. 13. whereby the penalty is faved on bringing principal, interefl, and cofls into court- Nor fiiall lands devifed to executors for payment of debts and legacies, although they become afiets, be confidered as fuch goods ^. On this point the ' 3 B^c. Abr. law makes a diftinction between debts by fpecialty iiVin.Abr.8o! and debts by fnnple contradc. It regards debts by fpeciaky, as the deceafed's goods in that diocefe where the fecurities are found at the time of his death, although they were entered into in another ; or the debtor or creditor at, the time when they were executed lived in a different diocefe ^. But ^ 3 Bac. Abr. debts by fimple contrad follow the perfon of the Roll. Abr. 909! debtor, and therefore are eileemed the deceafed's effects in that diocefe where the debtor refided at the creditor's death ". On this principle it hath "^ 3 ^'„9- A^^**: been noiaen, that a judgment obtamed in one or the 32 OF THE PROBATE. Book I; the courts ?t Weftminfter, although In an adion laid in DorfeEiliire, made bona notahilia^ becaufe the record was at Weflminfter ; but that a debt on a bill of exchange followed the perfon of the "iSnlk. 4o. debtor''. pi. 9. .•? Silk, i64.Ld.RTyin. S54. II Vin. A.n annuity out of a parfonage flia*! be reputed ^* ^ ' ° to be property in the diocefe where the parfonagd e Com. Dig. lies '. And leafes for years where the land lies^ Dy^r 305* not where the leafe is merely found*". in net. ri Vin. Abr. 80. ♦ Com. Die. Debts on recognizances, ftatutes, or judgment?,' Admor. B. 4- (hall be hoYia notahilia where they were acknow- g Com. Dig. ledged or given ^, Ad'vo;. B. 4. Dyer 305, iH not. And by flatute 4 & 5 Ann. c. 16. f. 26. falary^ wages, or pay, due to perfons for work in any of her majefty's yards or docks, (liall not be taken or deemed to be hna notahilia, whereby to found the jurifdidion of the prerogative courts. If the will be not contefled, the executor itiay prove it in the common form by his own oath, and in fome of the diocefes of York, with the addi- tional oath of one witnefs, or in cafe its validity is called in queftion, he will be required to fubftan- tiate it more folemnly per tejles, by the examination of witneiTes in the prefence of the parties interefted, " ^ f BLi-om. as the widow and next of kin". This latter mode 508. 4 Binn- of proving a will is feldom reforted to, unlefs at 2c6, 207. the indance of a party whofe object is to oppofe i^Burn.Eccl. it'; but the executor himfelf may, for greater L- "7. fafecy. Ch.Il. OF THE PROBATE. 33 fafety, if he has an iiiterefl in the will, elecl to have it fanf^ioned by this more decifive fpecies of evi- dence, and call on the next of kin to fee it pro- pounded'. . i + BurnEccl. When a will is to be thus folernnly proved, two witneffes are indifpenfable ; for, generally, by the civil law, the reftimony of two perfons is requifite, and therefore if in the probate of a will that of one witnefs is difallowed in the ecclefiaftical court, no ' mandamus will lie, for inafmuch as that court has jurifdidion of the fubjeft matter, it has fo alfo of the mode of proof, and the proceedings refpecting it ". ' fc 4 Burr, Eccl. L. ao6. Roll. Abr. 300. It is not necefiary that fuch witnefles fhould have read the will, or heard it read, if they can depofe that the teftator declared that the writing produced was his lad will and teilament ^, or duly ' 4 l^urn Eccl.' executed the fame, in their prefence* Godoiph. 66. , If the will or codicil be written in the teflatot's hand-writing, although it have neither his name fubfcribed, nor his feal affixed to it, nor had wit- neifes prefent at its pubhcation, yet it is of fuffi- cient validity on proof of the hand-writing ", by "" ^ Kl. Com, the evidence of two perfons acquainted with the charafter of it from having feen him write ; but in cafe there be a fmgle fubfcribing witnefs to the will, and who appears to atteft it, the teflimony of one perfon only to the above mentioned effcft is re(j[uirit?. D So, iOI, 34 OF THE PROBATE Book I. So, although written by another hantl, nor even figned by tbe teflator, if it can be (licvvn to be ac- cording to his inllruilions, and read over, and ap- ^- 2 P.). Com. proved by him, it is equally efieclual ". 501. Vid,'. ojr.. ^^' ^'^' An executor on takn)g probate fwears, that the writins: contains the true ialt will and teftament of the^dcceafed, as far as the deponent knows, or be- lieves, and that he will truly perform the fame by pa)ii)g firft the teftator's debts, and then the lega- cies therein contained, as far as the goods, chattels, and credits will thereto extend, and the law charge him ; and that he will make a true and perfeQ: in- ventory of all the goods, chattels, and credits, and exhibit the fanie into the regiftry of the fpiritual court at the time afligned hini by the court, and render a juft account thereof when lawfully re- quired. When the will is proved, the original is depo- fited in the regiftry of the ordinary or metropolitan, and a copy thereof, in parchment, is made out un- "z Bi. Com. der his feal, and delivered to the executor, together 508. 4 Burn .^jfj^ ^ certificate of its havino: been proved before Eccl. L. 115. _ . II Vin.Abr.56. him: and fuch copy and certificate are ufually pl. 7. Bac. Ufe n 1 j 1, u . . oftheLaw,67. Ityled the probate '. SECT, Ch. II. OF NUNCUPATIVE WILLS, ^ - S E G T. VI, Of the probate of nuncupative wills. A NUNCUPATIVE will is alfo capable of beincj proved \ But by the ftatute of frauds, after ^ - ^^'- C^"^* r JOO. fix months from the fpeaking of the pretended tef- tamentary words, no teflimony fhall be received to prove any uill nuncupative, except the teftimony, or the fubftance thereof, were committed to writing within fix days after the making of fuch will. And no letters teflamentary, or probate of any nuncu- pative will, fhall pafs the feal of any court till four- teen days at the lead after the deceafe of the tefta- tor be fully expired. Nor fhall any nuncupative will be at any time received to be proved, unlefs procefs have firfl ilTued to call in the widow, or next of kindred to the deceafed, to the end they may contefl the fame if they pleafe. And (as we may remember), no will in writing, concerning any goods, or chattels, or perfonal eftate, fhall be repealed, nor fhall any claufe, devife, or bequefl therein be altered or changed by any words, or will by word of mouth only j except the fame be in the life of the teflator committed to writing, and after the writing thereof, read to the teflator, and allowed by him, and proved to be fo done by three witoefTes at the leafl. D 2 SECT. r OF THE PROBATE OF THE Book I. SECT. VII. Of the prolate of the ivills of feameny and marines. IN regard to the making and probate of the wills of petty officers and feamen in the king's fer- vlce, and of non-comniiffioned officers of marines, and marines, ferving on board a ffiip in the king's fervice, by the ftatutes 26 Geo. 3. c. 6^. and 32 'Vid.fiipr.3,4- QgQ^ n, c. 54. above referred to% no will made by •any perfon of fuch defcription, whereby any wages, pay, prize-money, or allowance of money of any kind due for fuch fervice is bequeathed, fhall be va- lid, unlefs, if made while the party is in the fervice, it be figned before, and attefted by the captain or the officer then commanding, and one of the figning officers of the fhip to which the party belongs; and milefs it fpecify in the body thereof the name of the ffiip, and the number at which the maker of the will (lands upon the ihip's book, and contains a full defcription of the reiidence, profeffion, or bufmefs of the perfon in whofe favour it is made, and the day of the month, and the place where it was exe- cutcd, or by the agent of any of his majefty's hof- pitals or quarters appointed to receive fick and wounded feamen, in which the party may be at the time; or, if made by fuch officer or feaman.dif- charged from the fervice, within the bills of mor- tality, unlefs it be attefted by the officer appointed by the treafurer of the navy to infped fuch wills j or. Ch. 11. WILLS OF SEAMEN. or, if made at any of the ports where feamen's wages are paid, unlefs it be attefted by the trca- furer of the navy's chief or fecond clerk there; or, if made at any other place, unlefs it be attefted by the minifler and churchwardens of the paridi in England or Ireland, or by the minifter and two ciders of the parifh in Scotland, where fuch petty officer, or feaman, and executors fliall refpedlively refide. And after the will jfhall be fo executed and at- tefted, it fliall not be delivered to the party himfelf, but, if executed abroad, fliall be fent by the com- mander of any of his majefty's fliips, or agent of any of his majefty's hofpitals or fick quarters, when they tranfmit their refpedive returns to the navy and fick and hurt boards, cr if executed in Great Bri- tain or Ireland, fliall be fent by the commander of any of his majefty's fliips, or agents of his majefty''s hofpitals or fick quarters, treafurer of the navy's clerks, minifter of the parifli, or whoever of them fhall atteft fuch will, by the general poft, addrefled to the treafurer or paymafter of the navy, at the navy pay-office, London. And the treafurer or paymafter fliall immediately deliver over fuch will to the infpedlor, who iliali immediately on the re- ceipt thereof duly regifter the fame. And in cafe he fliall fee reafon to fufped the authenticity of fuch will, he fhall report the fame to the treafurer or paymafter of the navy, and fliall enter his caveat againft fuch will, which fliall pre- D 3 vent 37 38 OF THE PROBATE OF THE Book I. A'ent any money's being received thereon till the fame fliall be authenticated to the fatisfadion of the treafurer or pay m after ; but if fuch infpeiSlor ihail fee no -aufe to fufpect the will, he fliall affix the ftamp of his office, and lliall iil'ue a check in lieu of fuch will, fhewing the receipt of the fame at his office, and mentioning its particular heads, with direftions to return the check on the teftator's death ; to which check fhali be fubjoined a blank certificate, to be figned by two reputable houfe- keepers of the parifli where the executor is refident at the time fuch certificate fliall be returned, of the identity of the executor, and of his being an inha- bitant of the parifli ; and aKo another blank certi- ficate, to be figned by the minifter of the parilh, and two of the churchwardens, or two elders of the fame, as the cafe may be, certifying that fuch two houfekeepers are refident within the parifh, and of good repute. And the check mufl alfo ex- prefs, that if the teftator dies after he leaves the naval fervice, a certificate of his burial, or fome other authentic proof of his death, muft alfo be fent to the office, and alio mud delire the executor to nominate a proctor to be employed in obtaining a probate, and diredl the above certificates to be filled up on the teftator*s death, and the check to be fent by the general pofl under cover, diredled to the treafurer or paymafler of his majefty*s nary, London. And fuch check, with the certificates duly filled up, having been returned to the pay of- fice in the event of the teftator's death, the infpec- tor fliall note on the will the amount of the wages due Ch. it. wills of seamek due to the deceafed, and fliall forward the will to fuch proftor, together with a letter addrefled to the niiniiler and churchwardens, or ekjers (as the cafe may be), of the parifli v/ithin which the exe- cutor iliail then refide, franked by the treafurer or payinarter, or infpeclor, and fuch letter to inclofe a commiffion or requifiiion and copy of the will^ informing fuch minifler of the receipt of the check, and the certificates annexed, attefied by him, and the two churchwardens or elders, and requiring hini to execute the commiffion or requir fition, by fwcaring the executor, and when exe- cuted, to return it, with a copy of the will, to the pay-office, and to fpecify {ind defcribe the receiver- general of the land tax, the colleftor of the cuf- toms, or of the excife, or the clerk of the check, whofe abode is nearefl to the executor, when fuch perfoii will be diretled to pay him the wages due to the deceaied ; and the proclor having received the will, and the letter fo written by the inrpector, {hall immediately fue out the previous commiffion or requifition, and ffiall inclofe it, together with inftrudions for executing the fame, and a copy of the will in fuch letter, and ffiall tranfmit the letter by the general poll, to the minifler, churchwar- dens, or elders ; and they immediately on the re^ ceipt thereof, ffiall proceed to the execution of fuch commiffion or req.uintion, and, the fame being fo executed, ffiall tranfmit it to the treafurer or pay- mafter. And if the executor ffiall refide at a dif- tance from the place where the wages, prize-mo- ney^ or other allowance due to the deceafed, are D 4 payable. 4Q OK- THE PROBATE UNDER B.ook.I. payable, they Ihall fpecify and defcribe one of the perfons envimerated in the letter, who may refide neareft to the executor. And the, treafurer or pay^ malter fliall, immediately on the receipt thereof, fend the previous commiflion or requifition fo exe- cuted, to the proctor, who in purfuance thereof ihall forthwith fue out and procure fuch pro- bate. And if any pro(9:or or officer of .the ecclefiaflical court, fliall take more for his charges than the funis by the aci directed to be taken in the differ- ent events therein fpecilied, he fliall forfeit fifty pounds; or if he fliall be. aiding or aflifting in pro- curing probate of a will, or letters of adminillra- tion, for the purpofe'of enabling any perfon to re- ,ceive fuch wages, prize-money, or allowance of money, otherwife than in the manner prefcribed by thefe acts, fuch propter or other officer fhall forfeit five hundred pounds, and for ever after be inca- pable of ading in any capacity in any ecclefiaflical court in Great Britain. The provifions of thefe two acts are extended by flatute 32 Geo. 3. c. Cy. to petty officers and fea- men, non-commiflioned oficers of marines, and marines, ferving or who may have ferved on board any of his majefly's fliips, and who are refident in Ireland. SECT. Ch. II. SPECIAL CIRCUMSTANCES. SECT. viir. Of the probate under fpecial circimjlances. iF the executor he infirm, or live at a diflance, it is ufual to grant a commillion or requilition to the archbifhop or bifhop, in England or Ireland (as the cafe may be% or If in Scotland, the Wefl In- dies, or other foreign parts, to the jnaglftrates or other competent authority, to adminilter the oath to be taken previous to granting probate of the will '*. *■ Vid.4.Bnrn Otherwife if the executor do not within a reafonable "'^ ' ' ^'^ * time appear voluntarily, he may, as 1 have already mentioned, purfuant to the ftatute 7.1 H. 8. c. 5. be cited by the ordinary ex officio, io prove or refufe the ieflament. In cafe of non-appearance on the proceis he may be excommunicated, and the goods of the deceafed fequeftered until the probate ^, or ^ Vid. 4 Bnrn Sidminiftration with the will annexed, may be *^ • • ''- granted, in pain of his contumacy, provided an intimation to that efleft be contained in the pro- cefs. But the pradice of iffuing fuch citations is now become obfolete, unlef§ at the fuit of the parties interefted : if, hov/ever, the executor ads and ne- glects to take probate within fix months after the death of the teftator, by the above-mentioned fla- tute of 37 G. 3, c. 90. he incurs the penalty of fifty pounds. On 42 OF THE PROBATE UNDER Book I. On tlie other hand, the ordinary is bound to grant probate of the will, and, if the executor ac- cept the office, and claim the probate, in cafe of the ordinary's refufal to grant it, a writ of manda- mus may ifliie from the court of King's Bench to c 4 Burn Ecd. compel him": for although the fpiritual court is ^' *°*' to determine whether there be a will or not, yet if there be a will, the executor has a temporal right, nor fliall any terms be impofed on him except dLd. R:iym. fuch as the will prefcribes '^. But if the will be 361. Sua. 672. ii^j^^j.^^^ fj^g bifliop may in his return to the writ Ifate, that a fuit is depending before him in regard to the fame, and not yet determined. And fuch « Ld. Raym. return will be fufficient ". 2ft2. Burr. 2295. 4 Burn. Ecd. L. 205. ^j^j^ juiifdiction the metropolitan or ordinary may exercife either himfelf or by his official ; for it is merely a minifterial a£t, and concerns him not The power of granting probates is not local, but is annexed to the perfon of the archbifticp or bi- fhop ; and therefore a bifliop or the commiffary of a bifliop, while abfent from his diocefe, may grant probate of wills refpeding property within the fame ; or if an archbifhop or bilhop of a province or fee in 8 Bac.Abr. Ireland happens to be in England, he may grant 39.11Vir1.Abr. probate of wills relative to effecls within his pro- 78. Cro. Car. ^ . j- r ^ 214. vmce or diocele ^ If Ch.ii. special circumstances. If the fee be vacant, or in cafe of the fufpenfion of the biihop or archbiihop, the dean and chapter are to grant the probate ^. ^ 3 Rjc. Abr. 39. Roll. Abr- 908. II Vin. The proving of a bifliop*s will, although he left Abr. 74,75.77. goods only within his own jurifdiclion, belongs to the archbifliop '. *•» ^ \'^Kf ' u Vin. Abr. t .» V y ■ 1. > ■■■• '^•■>. \j/ 74-4i"ft.335. If there be feveral executors, and one takes pro- bate, he takes it with a refervation to the reft. If another applies for that purpofe, an engroffment of the original Vv^ill is to be annexed to the feconJ probate in the fame manner as to the firft, and in the fecond grant the firil grant is to be recited. And io of the reft. And this is ftyled a double probated i^ + Bm-nEcd. L. 201. Where feveral executors are appointed, as for- merly mentioned ', with feparate and diftinct ■ Vid. fupr. 16. powers, yet as there is but one will, one probate fhall be fufficient '". - •" ^ B^c. Abr. 30. OiF. Ex.13. Where probate of the will of a married woman is granted to her executor, if he be not her huf- band, it is limited to the property over which fhe had a difpofmg power, unlefs the hufband, either in perfon or by proxy, confent to a general pro- bate's being granted to her executor. If a will be limited to any fpecific effeds of a teftator, the probate fliall be alfo limited, and an adminiftration catevQrum granted. Tlie 44 OF THE PROBATE UNDER Book i, The intereft vefled by the will of the deceafed in the executor, may, if he take out probate, be continued, and kept alive by the will of the fame executor, fo that the executor of A.'s executor is to all intents and purpofes the executor and repre- ' t Bt. Com. fentative of A. himfelf ', and may be diredly fo iJit. Admor. named in legal proceedings'". For the power of \ 6. 1 1 2.n executor is founded on the fpecial confidence 90. «o7. Off. and adual appointment of the deceafed. Such i>row.'^25.'^° executor, therefore, may tranfmit that power to •"Com.D-g. another in whom he has equal confidence. And, Admon. G. fg jQr,fT as the chain of reprefentation is unbroken 1 Leon. Z7S- ■ n u i • • i by any mteltacy, the ultmiate executor is the re- prefentative of every preceding teitator, in however numerous a fucceflion. Nor is a new probate of the original will in any of the fubfequent flages re- "1S.Aik.309. quifite ". If there be feveral co-executors, and they all prove, the interefl: goes only to the executor of the laft furvivor, and although fuch furvivor refufed to prove in the life-time of the other executors, he may take out probate after their death, and in that cafe the interefl will be equally tranfmitted to his executor. But if fuch furviving executor re- nounces after their death, adminiftration fliall be granted, and then his executor will have no title o TT Vin. Abr. jj^ j|-jg original txecutorfliip °. 63, 69. U4. o r J Saik.307.311. com.Dij'. ^^ ^' appoint B. and C. his executors, and die, Admor. B. 1. ^rid B. make J. S. his executor, and die, and after- wards C. dies intellate ; the executor of B. fliall ^ not Ch. II. StECIAL CIRCUMSTANCES. 45 not be the executor of A. becaufe the executorfhip vefted folely in C. as furvivor, and as he died in- teftate, adminiftration mud be taken out to A. •* p n Vin, Abr. 88. Wills which concern the perfonal eflate only, are fubjecl to the jurifdidion of the ecclefiailical courts ^ «J4BurnEccl. L. 195. Where the will refpefts lands merely, the fpiri- tual court ought not to grant probate, and if there be a fuit to compel it, a prohibition will Ijp r^ ''4 Burn Eccl. L. 195. Cio. . Car.396. iVez. But when the will is of a mixed nature, that is, ^""^" "^°' relates both to real and perfonal property, the probate of it fhall be entire in the fpiritual « Cro,Car.3o6- COUrt'. - II Vin. Abr. . 57. 60. II?. . , 2 Salk. 5 2 Bl. Com. dren, or if none, then for his next of kin ^. This 494. 9 o- 3 • pi-gj-ogafive was mod probably exercifed in the county court j it was alfo delegated as a franchife to many lords of manors, and others, who have, to this day, a prelcriptive right to grant admini- c Vid. fupr,2 7. ftration to their inteilate tenants, and fuitors, in their own courts baron, and other courts, or, as we have feen % to grant probate of their wills, in 494. 9'co^ 37. cafe they have made any difpofition This Ch. III. OP GRANTING ADMINISTRATION. - - This power was afterwards veiled by the crown in the prelates, who, on account of their fuperior fandity, were, by the fuperflition of the times, conceived capable of difpofing of the property moft for the benefit of the deceafed's foul % The effeas \^l^'l^l'/ were, therefore, committed to the ordinary, and he might feize and keep them without wafting, and alfo give, alien, or fell them, at his pieafure, and difpofe of the money in pious ufes. If he did other wife, he violated the truft repofed in him as the king's almoner, within his diocefe ^ The ju- f Plowd. 277. rifdidlion of proving wills of courfe fell into the fame channel, fmce it was thought reafonable that they fhould be proved to the fatisfadion of him, whofe right of diflribution they efiedually fuper- ^ 2, Bi. Com. feded^ 494. Whether the ordinary's power of difpofition ex- tended to the whole of the perfonal eftate, or only to one third, after the partes raticjiabiks, or two thirds belonging to the wife and children, were deducted, is a point on which there is a difference of opinion '' ; but this is clear, the truft, whether ^ ^ Bl. Cora, mere or lefs extenfive, he did not very faithfully inft. 33'. * execute. He converted to his own ufe, under the name of church and poor, the whole of fuch pro- perty, without even paying the deceafed's debts. To redrefs fuch palpable injuftice the ftat. of JFefl- minjier 2. or the 13 £. i. ^. 19. was paffed ; by which it is enaded, that the ordinary is bound to pay the debts of the inteftate, fo far as his goods will extend, in the fame manner as executors are E 4 bound, t5 OF ORANTING ADMINISTRATION. Book I, bound, in cafe the deceafed has left a will ; a ufe, as Mr. Juftice Black/lone ftyles it, more truly pious i 2-Bl. Com. i\i2^xi any requiem, or mafs for his foul '. 495- J 1 Although the ordinary were now become liable to the inteflate's creditors, yet the refidue, after payment of debts, continued in his hands, to be applied to whatever purpofts his confcience might approve. But as it was not fufliciently fcrupulous to prevent the perpetual mifapplication of the fund, the leglflature again interpoi'ed, in order to divert; him, and his dependants, of the adminiflration. The flat. 31 £. 3. c, 11. therefore, provides, that in cafe of inteftacy, the ordinary fliall depute the neareil and moft lawful friends of the deceafed to adminifter his goods, and they are thereby put on ^ a Bl. Com. the fame footing in regard to fuits, and toaccount- jR^cAbr. 54. ^"S ^s executors appointed by will ^ JRaym. 49?. Such is the origin of adminiftrators : Thpy are the officers of the ordinary, appointed by him in purfuance of the ftatute, which feleds the next and mod lawful friends of the inteflate. But the ilat. 21 H. 8. c. 5. allows the ecclefiaflical judge a little more latitude, and empowers him to grant adminillration, either to the widow, or- next of kin, or to both of them, at his own difcretion, And where two or more perfons are in the fame degree of kindred, in cafe they apply, gives him his election to accept whichever he pleafes. Letters Ch. IIL OF GRANTING ADMIISflSTRATIOy. -- Letters of adminiflratlon, then, mufl be granted by the ordinary to fuch perfons, as the ftatutes 31 £". 3. & 21 H. 8. point out ', that is, according ' 2 bl Cora, to the former flatute, to the next and moft lawful '^°^' friends of the intellate ; according to the latter, to the widov/, and next of kin, or both, or either of. them. What parties fall within the firft defcription, it was the province of the courts of common law to determine '"', and they have interpreted fuch friends "" 3 B.ir. Abn to mean in the firfl place the hufband, if he were Ai>r. 93. / ndt entitled at common law, and, fecondly, the '^'^"'^^- *'^- next of blood, under no legal difabilities ". 196.^9 cT* 39. b, Firfl, the ordinary is bound to grant admini- ftration of the effedts of the wife to the hufband °. "n Vin. Abr. 86. Various opinions have indeed been held with regard to the huiband's title to adminifter. Some have maintained that he has no fuch exclufive right, either at common law, or by virtue of the ftatutes ; but that the ordinary may refufe the ad- miniflratlon to him, and may ele£l to grant it to the next of kin of the wife p. By others, it has p Cro. Car. been alTerted, that he is entitled under the equily ^^^' of the flat, of the 21 H. 8. whereby the ordinary is direded to grant ?idminiflration of the hufoand's effeds to the wife, or next of kin, or to either''. TTiVin. Abr. By a third clafs, it has been infifted, that although ^^" '° "°^' the hufband is not exprefsly named in the flat. 31 £. 3, nor does he anfwer the defcription of next 58 OF GRANTING ADMINISTRATION. Book I. next of kin of the wife, yet he h included under the denomination of the next and mofl lawful friend of the intedate ; and that thus he fupports his claim, not on the common law, nor, as de- fcribed eo nomine, by the ftatute, but as compre- i/^n.^Abr* hencied within its general provifion '. By a fourth, 73.84.. in not. it i:i allefred, and the doctrine is recognized, in a 116. I Show. ^ \ u ' • s u u • 2^^. J P.Wms. recent cale, by very high authority % that he is en- Jiccl L^ajc. titled at common law, jure mariti, and that his- sWattv.Watt. ^ight is not derived from any of the ftatutes, but, gVef. iun.2,45, Qji the contrary, is fuppofed by them, and exifls 347. Vid. alio 1 1 r 1 n TT - /• , Com. Dig. independently or them all. inowever, to Ipeculate a83"^°Bl.Com. ^^ thefe points is ufelefs to the prefent piirpofe, P^^^-„^°.'J^' fmce the hufband's right to adminifter, on what- b. Roll. Abr. . . o n • /i 910. 4 Burn ever foundation, is now beyond all queftion efta- Eccl.L. .64. i^j.^^^^ The flat. 29 Car. 2. c. 3. contains a claufe, that the flatute of diftiibutions, the 22 & 23 Car. 1. c. 10. hereafter to be difcufied, fhall not prejudice fuch title of the hufband, under an ap^- prehenfion that it might be confidered to be there- by affe<5led. Such is the general right of the hufband to the adminiftration of the wife's effeft^ ; but this right n 3 Bac. Abr. may, in certain cafes, be controlled or varied ". Com. Dig' If the hufband parts with all his interefl in his Admor.B. 6. ^jf^'g fortune, he fliall not be entitled to the ad- miniftration ; as, where a wife had a power to make a will and difpofe of her whole eftate, and, 8 though. Ch. in. OF GRANTING ADMINISTRATION. -^ though, flrl£lly fpeaklng, (lie made no will, but ra- ther an appointment capable of operating only in equity, the court held that it was for the fpiritual jurifdiftion to determine to whom to grant admi- niltration, and refufed to interpofe in favour of the y, ^ g^^^.^ ^^^^^ hulband '^ . l ^31. sua. ijii. So where a feme covert, by virtue of her power to difpofe of her ellate, devifed a term for years to , ^^ ^,.^ .^^ T. S. adminiflration was granted to the devifee \ 87 Prac. ^ ° Cl.an 4S0. Gilb. Eq. Repv On the other hand, where the return to a man- ^+3- damns to grant adminiftration to a hufband flated, that, by articles before marriage, it was agreed that the wife fhould have power to make a will, and difpofe of a leafehold eftate, and purfuant to this power, flie had made a will, and appointed her mother executrix, who had duly proved the fame, it was objeded that fhe might have things in aSion not covered by th« deed, and that the hufband was, at all events, entitled to an admini- ftration in refped to them, though equity would controul it in refpett to the leafe ; the court al- lowed the obieftion, and in-anted a peremptory , ^ ' ^ ^ ^ -^ y 4 Burn Eccl. mandamus >'. l. 233. Sua. 891. In cafe of a limited probate, granted to the executor of a married woman, as above mentioned, ^^'^^- ^"P»- 43' the huft)and is entitled to adminiftration of the other part of her property, v.'hich is called an ad- minijiraiion caterornm. Sscondlv, 6o Of GRANTING ADMINISTRATION. Book I. Secondly, the ordinary is to grant ad minlft ra- tion of the effefts of the hufband to the widow, or next of kin -, but he may grant it to either, or « Vid. II Vin. both,' at his difcretion ^ If the widow renounce adminiflration, it fliallije granted to the children, or other next of kin of the inteftate, in preference to creditors. The ordinary may grant adminiflration quoad part to the wife, and as to the other part, to the next of kin ; for in fuch cafe there can be no ground to complain, as the ordinary was not a iiVin. Abr. bound to grant it exclufively to either '. 71.3Bac.Abr. ° 55. t om. Dig. ^li'!!^',?' ^' ^^ ^'^^ becomes neceflfary to inquire, who are fuch next of kin as fliall be thus entitled. Salk. 36. Confanguinity or kindred is defined to be vincU' lum perjonarum ab esdcm Jiipite defcendenUum^ the connexion or relation of perfons defcended from the fame ftock or common anceftor. This con- ^ 2 Bl. Com. fanguinity is either lineal, or collateral ^ i02. Lineal confanguinity is that which fubfifts be* tween perfons of whom one is defcended in a diredt line from the other, as between J. S. the propo- fttiis in the table of confanguinity, and his father, grand-father, great-grand-father, and fo upwards, in the afcending line, or between J. S. and his fon, grandfon, and great-grandfon, and fo down- wards, in the dire£t defcending line. Every gene- ration in this lineal dired confanguinity conftitutes *i dif* C«. III. OF GRANTING ADMINISTRATION. ^ j. a different degree, reckoning either upwards, or downwards. The father of J. S. is related to hiin in the firfl: degree, and fo likewifc is his fon ; his grandiire and grandfon, in the fecond ; his great-^ grandfirc and great-grandfon, in the third. This is the only natural way of reckoning the degrees in the diretil line, and, therefore, univerfally ob- tains, as well in the civil, and canon, as in the common law. Thus this lineal confanguinity falls ftriflly with- in the definition of vinculu?n perfonanun ab codcm (lipite dcfcendentium, fmce lineal relations are fuch as defcend one from the other, and both of courfe c ^ gj, q^^, from the fame common anceftor % -''3. 204- Collateral kindred anfwers to the fame defcrip- tion. Collateral relations agreeing with the lineal in this, that they defcend from the fame flock or ancellor, but, differing in this, that they do not defcend the one from the other. Collateral kinfmen are then fuch as lineally., fprrng from one and the fame anceflor, who is the; Jlirps or root, Jlipes or common flock from whiclt thefe relations are branched out. As if J. S. have two fons, who have each ilfue ; both of thefe if- fues are linearly defcended from J. S. as their com- mon anceflor, and they are collateral kinfmen ta each other, becaufe they are all defcended from one common anceflor, and all have a portion of his 52 OF GRANTING ADMINISTRATION. Book L his blood in their veins, which denominates theni confanguineos . Thus the very being of collateral confanguinity confifts in this defcent from one and the fame common anceftor. _ A. and his brother are related, becaufe both are derived from one father. A. and his firfl-coufm are related, becaufc both are de- fcended from the fame grandfather ; and his fe- cond-coufm's claim to co-nfanguinity is this, that they are both derived from one and the fame great- grandfather. In Ihort, as many anceftors as a man has, fo many common flocks he has, from which collateral kinfmen are derived. And, as from one couple of ancedors the whole race of mankind is defcended, it neceffarily follows, that 284, ao5. ' "^ ni^^ ^re in fomc degree related to each other "*. The mode of calculating the degrees in the collateral line, is not that of the canonilts adopted by the common law, in the defcent of real ellates, but conforms to that of the civilians, and is as follows : to count upwards from either of the parties related to the common ftock, and then downwards again to the other, reckoning a degree for each perfon, « a Bl. Com. both afcending and defcending % or, in other 307. . words, to take the fum of the degrees, in both f Ibid. 1% lines, to the common anceftor K Edit. not. U). Thus, for example, the p-opofjiiSi and his coufm-german, are related in the fourth degree. We II. Grand- father. I. Father. THE PROPOSI- TUS. IV. Great Uncle. III. Uncle. II. Brother. V. Great Uncle's Son. X IV. Coufin German. VI. Second Coufin. III. Nephew V. Son of the Coufin GerAian. IV. Son of the Nephew or Brother's Grandfon. Ch. m. OF GRANTING ADMINISTRATION. ^ ^ We afcend, firfl:, to the father ", which is one de- e See the tabic gree ; and from him to the common anceflor, the ^uini*t"^a?(" q;randfather, which is the lecond decree ; from the n<--;fd, in ir T J r 1 1. 1 i_- 1 • 1 which the dc- grandfather we dclcend to the uncle, which is the grees o, coiia- third deo-ree : and from the imcle to the coiifm- l;';!;!]:!'!^"/!!"' e:erman, w^hich is the fourth deo;ree. So, in computed, «s 1 • u r r u T, u 1 ftr as the reckomng to the Ion or the nephew, or the bro- fiAth. ther's grandfon, we afcend to the father, which is one degree ; from the father we defcend to the brother, which is the fecond degree ; from the brother to the nephew, which is the third degree ; and from the nephew to the fon of the nephew, ..,.,p,j u ^4 Burn Ecci. which IS the lourth degree ". L. :,^5. eiack. Dci'c. 41, 4a. Of the kindred, thofe, we mufl recoIie6i:, are to be prefer! ed, who are the neareft hi degree to the inteflate, but from among perfons of equal de- gree, in cafe they apply, the ordinary has the power of making his eleaion K ' ^^ Vin. Abr. >-3 1145 li*;. Com. Dip. Of the next of kin, then, firfl the children, and ''"^'^" ' ^* on failure of them, the father of the deceafed, or, if 91/91.' i bl'"' he be dead, the mother is entitled to adminiilration : ^'^"^ ^'^^' The parents, indeed, as well as the children, are of '' Vm.Abr.. ,the firfl degree, but the children are allowed the m ,, vin. Abr. preference"^, then follow brothers', then o-rand- 93- and wi rot. ri iiu iu ^ \ r u r Ld.Raym 6S4. lathers ">, and although they are Doth or the le- « om. d;,^. cond degree, yet the former are firfl entitled; 1 sTlk"^ -8. nex^t in order are uncjes or nephews", and, laflly, „ ^ ].] ( coufins, and the females of each clafs refpedlively ". ' •^°^- ^ ^'■^■ Relations by the father's fide and the mother's, in equLil degree of kindred, are equally entitled j for, jo F m om, 455- ■-^ 2 BI. Cona, 91- I Ventr. $^2 .414- ' a Bl. Com. 505 s II Vin.Abr. S5. t 2 Bl. Com. 505 £^. OF GRANTNG ADMINISTRATION. Book I. in this refpcct, dignity of 'blood gives no prefer- piP.Wms. 5;. ence''. So, the half blood is admitted to the ad- q II Vin.Abr. miniflratlon as well as the whole % for they are the kindred of the inteftate, and excluded from inheritances of land only on feudal reafons '; there- fore, the brother of the half blood fhall exclude the uncle of the whole blood ' ; and the ordinary inay grant adminiftration to the filler of the half, or the brother of the whole, bloody at his dif- cretion '. If a feme covert be entitled, fhe cannot admi- MBl.Rcp. goi. jiif^er unlefs with the hulband's permifTion ", inaf- much as he is required to enter into the admini- ftration bond, which flie is incapable of doing. But, if it can be fhewn by affidavit, that the huf- band is abroad, or otherwife incompetent, a Itranger may join in fuch fecurity in his ftead. In either cafe the adminiftration is committed to her •" II Vin.Abr. alone, and not to her jointly with her hufband ^% FccLl!'c4i. otherwife, if he ihould furvive her, he would be com.Dig.Ad- adminillrator, contrary to the mcaninej of the ITiCli. 1). btV- / • ■ ° 75. ioi. If Ch. III. OF GRANTING ADMINISTRATION. ^^ If the wife be the only next of kin, and a minor, fhe may eleft her hulband her guardian, to take the adminiftration for her ufe and beneiit during her minority ; but the grant ceafes on her coming of age, when a new adminiflration may be committed to her. The flat. 21 jy. 8. has alfo exprefbly provided for another cafe than that of a61nal inteftacy ; namely, where the deceafed has made a will, and appointed an executor, and fuch executor refufes to take out probate '', in fuch an event the ordi- y :;. Burn Ecc'. nary mud grant adminiftration ciun teftamento an- Abnvs." init! 7iex0y with the will annexed, and the duty of fuch 397- grantee dilTers but little from that of an executor ''. '^ 1 BI. Com. He is equally bound to act according to the tenour ^^'^^ of the will. So, if one of two executors proves the will vid. fupr. 44* and dies, and then the other refufes, fuch admiiii- ftracion iliail be granted. The ordinary cannot grant adminiftration with the will annexed in which an executor is named, until he has either formally renounced his right to the probate, or negledled to appear, on being duly cited to accept, or refufe the fame. So, if feveral execucors are named in the will, they muft all refufe or fail to appear, on citation, pre- vious to the grant. After fuch adminiftration the executor cannot retract his refufal during the life- F 2 time 66 OF THE ANALOGY OF Book I. time of the adminiflrator, but he may do fo after the grant has ceafed by the adminiftrator's death. A party, although otherwife entitled, may be incapable of the office of adminiflrator, on account of fome difqualification in point of law. The in- capacities of an adminiflrator are not confined to fuch as have been enumerated in refpeiSl of exe- cutors, but comprife attainder of treafon or felony, a 9 Co. 39, b. outlawry, impriibnment, abfence beyond fea, bank- 9T ^,%V^ ruptcY% and, in fhort, almofl every fpecies of 4 Burn Ecci. legal difabihty, for, by the exprefs requifition ot Abr. 56^ia the llatute, the ordinary is bound to grant admi- ""^- nidration to the next and moll lawful, friends of b Com. Dig- ^Up Ip^piIt^p b Ada or. (B. 6.) tne mteiiaue . I Salk. 36. c Com. Dig. But coverture is no incapacity, nor is alienage, Admor.(U. 6.) if qualified, as in the cafe of executors'. Even jBrownl. 31. an ahen of the half blood may be appointed an J II Vin Abr. adminiflrator ''. 94. z Vern. ia6. S E C T. II. Of the ar.akgy of admin'iftratlom io probates. WHAT has been ftated refpeding the different jurifdiftions relative to probates, of iffuing a com- miflion or requifition in cafe the party be in an ill flate of health, or refide at a diflance j of bona no- 5 tabilia j Ch. III. ADMINISTRATIONS TO PROBATES. /:- tabilla ; of the ecclefiaflical privilege of granting probate, being perfonal and not local 'j of its de- ='4BurnEccl. volving on the archbifhop where the party deceafed '^'^ ' was a bifkop, and on the dean ;ind chapter in cafe of the death or fufpenfion of the m'-tropolitan or ordinary ; of his being compellable by mandamus to grant probate, unlefs he return a Us pendens "^ ; '' 4 Bum Ecd. of caveats, and appeals ; of the power of the court Dig.'^Atimor. of appeal to grant probate where the fentence is appointment of the or- |P^- 4 Bum dinary % ' Saik. 301. F 3 It ^g PRACTICE IN REGARD Book I. It has, Indeed, been held, that a party before adminiflration may file a bill in chancery, although b 4Burn Eccl. j^g canRot commence ^n action at law ^ L. Z42- Bar- nadift. 320. But by ftat. 2)7 Geo. 3. c. 90. / 10. if a party adminifter, and omit to take out letters of admini- flration within fix months after the inteftate'S ja.41. "^'^" death, he incurs the penalty of fifty pounds % SECT. IV. Praclke in regard to adminlJirationSf LETTERS of adminiftratlon do not Iflue till after the expiration of fourteen days from the death of the inteftate, unlefs for fpecial caufe, as that the goods would otherwife perifli, the judge a 4 Burn Eccl. f^all think fit to decree them fooner \ Tu. 242. On taking out letters of adminiflration the party fwears that the deceafed made no will, as far as the deponent knows or believes, and that he will truly adminifter the goods, chattels, and credits, by paying the deceafed^s debts, as far as the fame will extend, and the law charge him ; and that he will make a true and perfeft inventory of all the goods, chattels, and credits, and exhibit the fame into the regiftry of the fpiritual court, at the time alligned him by the court, and to render (5 ^ juft Ch. III. TO ADMINISTRATIONS. a jufl: account of his adminifliration, when law- fully required. And, purfuant to the ftat. 21 //. 8. c. 5. and the 22 & 23 Car. 2. c. 10. he enters into a bond with two or more fureties conditioned for the making, or caufing to be made, a true and per- fecl inventory of all and fmgular the goods, chat- tels, and credits of the deceafed, which have or {hall come to the hands, poifeffion, or knowledge, of the adminiflrator, or into the hands or poi- feilion of any other perfon or perfons for him ; and for exhibiting the fame into the regiftry of the fpiritual court, at or before the end of fix months ; and for well and truly adminillering, according to law, fuch goods and chattels j and farther, for the making a true and jufl account of his adnii- niftration, at or before the end of twelve months ; and for delivering and paying all the reft and refidue of the goods, chattels, and credits, which (liall be found remaining on his accounts, (the fame being firft examined and allowed of by the judge of the court), unto fuch perfon or perfons refpe<3:ively, as the judge by his decree or fentence, purfuant to the ftatute of diftribution, Ihall limit and appoint ; and, if it (liall thereafter appear, that any will was made by the deceafed, and the executor therein named exhibit the fame into the court, making requeft to have it al- lowed and approved accordingly, for the admini- ftrators rendering and delivering, on being there- unto required, (approbation of fuch teftament F 4 being 69 „rx OF SPECIAL AND Book I. y CJ. being firft had, and made), the letters of admini- ftration in the court. When adminiflratlon has been once committed to any of the next of kin, others, even in the fame degree of kindred, have, during the hfe of the adminiftrator, no title to a fmiilar grant •, fo dif- ferent is this cafe from that of an executor, who has a right to probate, though it has been already taken out by his co-executor. The maxim, " qui " prior ejl tempoj-e, potior eji jure, ^' applies in the aiiVin. Ahr. foj-mer, but not in the latter, inllancc \ i!6. I \'entr, ai8. SECT. V. Of fpccial and li?nited admini/lralions, THERE are alfo various clafies of adminiftra- tions, which, although not founded on the letter of any of the abovcmentioned ftatutes, fall within L^^^^l^i'v",; their fpirit, and intendment \ As, if no executor Abr. 5^. i^e named in the will, the claufe for fuch appoint- ap.v/m.jSa. mcnt being wholly omitted, or where a blank is 5^9» J9<2- jgfr for his name, adminiflration with the will an- jt.q'/c om. ijig. nexed ihall be granted ". Atimor. (B.i.) ^irV^n. 4br. ^^' ^^ ^^^^ executor die in the life-time of the S5. ^ty. 147. teftator % or if the teflator name the executor of B. to Ch. Ill; LIMITED ADMINISTRATION. yj to be his executor, and die in the life-time of" B. for till B.'s death he is in cSed inteilate \ IcwlcB.t) Or, if he name an executor to have authority after a year from his death, for during the year there is no executor % and in fuch cafes admini- ^ Plowd, 179. flration Ihail be granted in the interval. So, if the executor be incapable of the office, the party is faid to die .qtwjt iniejlatus, and the ordinary muff errant adminiitration. So, in all the above-mentioned inftances, if there be a refiduary legatee, adminiftration is, in general, granted to him in exclufion of the next of kin, becaufe in that cafe the next of kin hath no in- tereft in the property, and the prefumption of the flatute, that the teftator would have given it to him cannot exift, where fuch a legatee is appointed ^ fu vin. Abr. If feveral perfons are entitled to the refidue, it may be granted to any of them ^ ; and if it be s Com. Dig. , ,1 i_ri l.k Admor.(B.60 thus granted, the other refiduary legatees have no ^j^^ ^^^^ claim to a fubfequent grant in the life-time of the "Vin.Abr.94. grantee. Such adminiftration may be alfo granted, al- h Com. Dig. though it be uncertain whether there will eventu- f 'l"Jv!^s^6^"'^'^ ally be a refidue, or not ''. iVcntr.2x9. Of this fpecies alfo is an adminiftration durante vi'moritatei or during the infancy or minority of an ^ >, OF SPECIAL AND Book I. an executor, or a party entitled to adminiflra- I Com. Dicr. tion '. Adtnon. (F.) II Viii, Abr. SOS' A diflin6lIon exifls in the fpiritual court between an infant and a minor. The former is fo denomi- nated if under feven years of age j the latter from feven to twenty-one. The ordinary ex officio afligns a guardian to an infant. The minor himfelf no- minates his guardian, who then is admitted in that charafter by the judge. According to the pradice of the court, the guardianfliip in either cafe is granted to the next of kin of the child, unlefs fuf- ficient objection to him be fliewn, and adminiftra- tion is committed to fuch appointee for the ufe and benefit of the infant or minor. Although, as we have feen, an adminiflration during the minority of an infant executor was, an- tecedently to the ftat. 38 Geo. 3. c. 87. deter- mined on his attaining [he age ot feyenteen, yet adminiflration during the minority of an infant, next of kin was always of force until his age of twenty-one ; on the principle, that the authority of an adminiflrator is derived from the flat, of 31 Ed. 3. c. II. which admits only of a kgai con- flruction, and therefore it was held he mult be of the legal age of twenty-one> before he is compe- tent ; but the executor comes in by the act of the party, and that he fhould be capable of the execu- *: VBurn F.ccl. torfliip at the age of feventeen, was in conformity T- ^-,8, 2-,9. to other provifions of the fpiritual law ''. And alfo, Com.Di^c. which was the more forcible reafon, becaufe the Admon. (F.) flatute Ch. ICI. IIMITED ADMINISTRATION. 7 /* ftatute of diftrlbutions requires adminiftrators to give a bond, which an infant is incapable of do^ ,o" lo"! Jno- k ■? Bac. Abr. i'^. o • Hpfg.Co.Litt. 89. b. Note 6, But now by the above-mentioned flat. 38 Geo. 3. c. 87. reciting, that inconveniences arofe from granting probate to infants under the age of twenty-one, it is enacted, that where an infant is fole executor, adminiflration with the will annex- ed fhall be granted to the guardian of fuch infant, or to fuch other perfon as the fpiritual court (liall think fit, until fuch infant fhall have attained the full age of twenty-one years, at which period, and not before, probate of the will fhall be granted to him. If adminiflration be granted to fuch guardian for the ufe and benefit of feveral infants, it ceafes pn the eldefl attaining twenty-one. If there be feveral infant executors, he who firlt attains the age of twenty-one years fhall prove the will, and the adminiflration fhall ceafe ^ : but ad- '4SurnEccL . . . . L. 240. miniltration granted during the minority of feveral children will not expire on the marriage of one of them to a hufband of full age. Nor, if an infant be executrix, fliall it be determined by her taking a hufband who is of age. Nor, if there be feve- ral infants, by the death of one of thtm "'. "" Sed vid. '' Com. Din-. Admon. (F.) If there be two executors, one of whom has at- ^"^ -S*^'"-*?-^' gained the age of twenty-one years, and the other not. rjA OF SPECIAL AND Book T. not, adminlftration fliall not be granted during the minority of him that is under age, becaufe the for- « 4 Burn Ecd. mer may execute the will ". L. 240. I Brownl. 46. J I Via Abr. Accordiiig to Other authorities % adminiflration , ' fhall in fuch cafe be granted to the one executor ** II Vm. Abr. . . ° 97,98 99. during the minority of the other; but they are aLev*^9%o'. ^^^^ Warranted by modern prafl:ice. 2 Jo. 1 19. "Yelv i-c. ^ This adminiftration ought not to be committed to a party who is very poor, or in dillrefled circum- ftances, though the guardian or next of kin to the infant. When the court of chancery fees reafoH to thmk that fuch adminiftrator will wafte, or mif- apply the effefts of the inteftate to the prejudice of the infant, for whom he is merely a truftee, that court will appoint a receiver of the peifonal eflate, ^11 B^"" '^Y* J^ol^withftanding the grant of adminiflration p. Z3, 24.. It has been held by fome, that if fuch admini- ftrator continues the poifeiTion of the goods after the full age of the executor, he becomes an execu- tor de Jon tort; but this is denied by others, and their opinion feems to be the more correct, becaufe 1 II Vin. Abr. he came to the poflclTion of the goods lawfully '^. In this clafs is alfo to be ranked adminiflration ^4Buni Eccl. penckjite lite, while the fuit is pending ' ; and it may be granted, whether the fuit refpects a willj or sc^fp.'w^ns. ^^^^ "g^^ c>f adminiflration \ But it is never grant- 576. II Vin. ed till a plea in the caiife has been given in, and Abr, 105. , . , ° admitted. Nor Ch.iii. limited administration. 75 Nor will the court of chancery, generally fpeak- ing, in fuch cafe interfere, and appoint a receiver during the litigation '. r'^^T^^r*'!-" o c! L. 233. I Vcl. Of the famefpecies alfo is adminiftration ground- ed on the incapacity of the next of kin at the time of the inteftate's death, arifing, for inftance, from attaint, or excommunication, madnefs, or bank- ruptcy. If fuch incapacity be afterwards removed, fuch adreiniRration may be avoided ". " Com. D=g. "' Adinor.(B.t.) Salk. 56, To this defcription alfo mud be referred admi- niftration granted at common law, durante e.hfcn- tid, during the abfence of the executor, or next of kin, from the kingdom ; and it of courfe ceafes on the appearance of the executor, or next of kin, and his taking out probate, or adminiftration. Under this head alfo is comprifed adminiftration granted to a creditor.: fuch adminiftration in ge- neral is warranted only by cuftom, and not by any exprefs law, and may be granted where it is vifible the next of kin cannot derive any benefit from the eftate; but that is to be underftood only where they refufe the grant, and the courfe is for the or- dinary to iflue a citation for the next of kin in fpecial, and all others in general, to accept or re- fufe letters of adminiftration, or fhew caufe why the fame ftiould not be granted to a creditor "*. ^4Bi:rnEccL ° L. 230. 2 lil. Com. 505. And by the aforefaid ftat. 2)^ Geo. 3. c. 87. if com.D'g. after the expiration of twelve calendar moaths Admor. (h,6.) from 76 OF SPECIAL AND Book I. from the teflator's death, the executor to whom probate hath been granted fhall be refidlng out of the jurifdidlon of his majefty's courts, on applica- tion of any creditor, next of km, or legatee, grounded on an affidavit, in the form therein fpe- cified, dating the nature of his demand, and ab* fence of the executor, fuch adminiflration fliali be granted. Of the fame nature is adminiflration committed by the ordinary in default of all the abovemen- tioned parties, to fuch difcreet perfon as he fliall * 1 BI. Com. approve "", 505- The jurifdiftion of granting thefe adminidra- tions refults from the ordinary's original power at common law, by which he may make the grant to whom he pleafes, and, therefore, it is held, that he may in thefe cafes, as not having been exprefsly provided for, impofe on the grantee fuch terms as y ^.'Burn Eccl. he may think reafonable ^ L. 237. a P. Wms. 582. 589. 590. Hob. Hence, where the executors renounced, and the aijj ' * refiduary legatee moved for a mandamus to the ec- clefiaflical judge to be admitted to prove the will, and have adminiflration with the will annexed, on Hiewing caufe the court held, that the matter was left to the election of the ordinary, and diichargcd 2 4 Burn Eccl. the lule ''. L.231. Stra. 956. Com.Die. r^ , ■^r ^ i r 7 .id.iior.(ti,6.) So, where a grandfather moved tor a mandamus to fuch judge to grant him adminiflration of the effects Ch. in. LIMITED ADMINISTRATION. 77 cffefts of his deceafed fon during the minority of his grandfon, the court refufed the application ^ J + ^-"™ pel. o ^ •^ * Li. 131. cira. 89.Z. On the fame principle, where, on the renuncia- tion of the next of kin, feveral creditors apply for adminiftration, though the court may prefer any one of them, yet on the petition of the others, ic will compel him to enter into articles, to pay debts of equal degree in equal proportions, without any preference of his own. There may be alfo a limited or fpecial admini- ftration committed to the party's care, namely, of certain fpecific effedls, as of a term for years, and the like, and the reft may be committed to others, or for effecls of the inteftate in this county, or place, to one, and for eftecls in that county, or place, to another; and as well in general cafes, as in the cafe above ftated, of the wife and next of kin •". But feveral adminiftrations cannot be ^ ^om- T^'?- , granted in refpecl of one and the fame thing; as a RollAbr. 90*. houfe, or a bond, or any other debt. For it would Vid. fupr. 60. be abfurd, that two perfons ftiould have a diftin£l right to an individual chattel, or chofe in a6lio7i ''. «i 3 Bac. Abr. In refpecl however to creditors, fuch feveral ad- ^^g ^^'.^^ T* miniftrators are all confidered as one perfon, and may be fued accordingly \ ' ^^ Vm.AHr, "' ° •' I -,9. Cro. Lar. Adminiftration alfo may be granted on condi- tion, as where a former grantee is outlawed, and in prifon beyond fea, it may be committed to another, but 2^3 o OF SPECIAL AND Book I. but fo as if the firft grantee fhall return he fnall be f Com. Dig. • 1 J . J • -n. f Admor.(B 7.) entitled to admimiter \ Roll. Ahr. Abr. 70. The ordinary alfo, in default of perfons entitled to the adminiftration, may grant letters nd colligen- dum bona defufi^i, and thervjby take the goods of the deceafed into his own hands, and thus aflume the office of an executor, or adminiftrator in refpeft to the coileding of them ; but the grantee of fuch Utters cannot fell the effeds without making him- felf an executor de fon tort. The ordinary has no «4BurnEccl. |- Vi authority, and therefore he cannot confer it L. 241. iiVin. J » Abr. 87. a Bl. on another ^. Com. 505. If a baftardj who, as nuUhis Jiiius, hath no kin- dred, or any other perfon having no kindred, die inteftatc, and without wife or child, ic hath for- merly been holden, that the ordinary could feize his goods, and difpofe of them to pious ufes i but now it feems fettled, that the king is entitled to them'^as ultimus hares \ but in fuch cafe it is the praftice to transfer the royal clai.m by letters pa- tent, ot other authority, from the crown, with a refervation, as it is faid, of a tenth or oilier fmall proportion of the property, and then the ordinary i> Com. Di?. of courfe'grants to fuch appointee the adminiflra- Admor. TA ) . ^ ,,Vin.Abr.88. "On . 3 P.Wms.33. I Wooddes 398. It has, indeed, been alTerted, that fuch letters patent are merely in the nature of a recommenda- tion j and that though, it be ufual for the ordinary to Ch.iii. limited administration. 79 fo admic fuch patentee, yet it ?s rather out of refpe^t to the king, than ftriftly of right K ^^» ' Tsiit^""^ Adminiftration may alfo be granted to the at- torney of all executors, or of all the next of kin, provided they refide out of the province ; but if the effefts are under twenty pounds, fuch admini- llratlon may be granted, whether they are fo refi- dent, or not. SECT. VI. Of admlnijiraiions to intejlate fea?nen, and marims» WITH regard to the adminiftration of the wages, pay, prize-money, or allowance of money, of fuch petty officers, and feanien,non-commiliioned officers of marines, and marines, as are abovemen- tioned, in refped: of feivices in his majefty's navy by the before cited flat. 32 Geo. 3. c. 34. it is enacted, that the party claiming fuch adminiftra- tion Ihall fend a note to the infpeftor of feamen's wills, Hating the name of the deceafed, the name of the fhip or fiiips to which he belonged, and that the party has been informed of his death, and requeft- ing the infpedor to give fuch directions as may en- able him to procure letters of adminiftration to the deceafed ; on receipt of which, the infpeftor ffiali tranfmit the form of a letter, containing a lift of G th« So OF ADMINISTRATION Book I. the degrees of kindred to the tenth degree inclufive, with blanks for the time and place of the inteftate's birth, and the fhip he belonged to, and that the party had obtained information of his death, with blanks for the place where, and the time when it happened, without leaving a will, to the befl of the party^s knowledge and belief; and applying to the infpe£lor for a certificate, to enable fuch party to obtain letters of adminiflration to the deceafed*s effefts, with alfo a blank for his degree of kindred; and flating, that no one, to the bcft of his know- ledge and belief, was of a nearer degree at the time of the inteftate's death, who died (with a blank, in u'hich to infert whether) bachelor or widower ; to which form fnall be fubjoined a blank certificate, to be figned by two reputable houfekeepers of the parifli where the party applying is refident, of their knowledge of him, and of their belief, that what he flates is true ; and alfo another certificate, to be ligned by the mini.fter of the parifli, and two of the churchwardens, or two elders of the fame, as the cafe may be, certifying chat fach two houfe- keepers are refiJent in the parifli, and of good re- pute ; and alfo dating, that if the party applying is the widow of the dcceafed, flie muil forward with fuch certificate an extrad from the parifh regifler, or fome other authentic proof of her marriage, and containing alfo the fame directions as annexed to the fecond certificate fubjoined to the abovemen- ■-• Supra sz- tioned check % In regard to proof of the deceafed's death, if he died after he had left the naval fervlce, in' regard to mentioning the^name of a pro6tor to be Ch. III. TO SEAMEN. g| be employed in obtaining the adm'iniflration : and that the application, when filled up and attelled, Ihall be fent by the general pofl under cover, di- refted to the treafurer or paymaflcr of his maje(ly*3 navy, London. And on the receipt of fuch paper, the party claiming the adminiftration fhali fill up the blanks in the firfl part of the paper, and dial I fubfcribe the fame, and two inhabitants of the pa- rifli within which the party (hall refide, {hall fign the firfl certificate on the paper, having previoufly filled up the blanks therein, after which the mini- fler, and two churchwardens (if in England), and two elders (if in Scotland), fhall fign the fecond certificate on the aforefaid paper : and the paper being in all things completed, fhall be returned, addreffed to the treafurer or paymafter of his ma- jefty*s navy, London, and he on receiving the fame fhall direft the inTpedor to examine it, and make fuch enquiry relative thereto as may appear to him neceffary ; and, if he fhall be fatisfied, to make out a certificate, ftating the application of the party to his office, containing the party's defcription, and ffating whether he is fole, or one of the next of kin of the deceafed, the original place of refidence of the deceafed, and whether feaman or marine, and the name of the fhip he belonged to, and that he died inteftate, and whether bachelor or widow- er ; together with the time of his death ; and that it appearing that no will of the deceafed has been lodged in the office, he, therefore, grants fuch ab- flrad of the application, and certifies, that he be- lieves what is ilated to be truej and that fuch party G 2- jnay 82 OF ADMINISTRATION Book I. may obtain letters of adminiftratlon to the efFeds of the deceafed, which appear not to exceed a fum fpecified, provided fuch party is otherwife entitled thereto by law : to which certificate there fhall be fubjoined a noticej that previous commiffion or requiution is to be addreiTed agreeably to the fu- perfcription of the within cover, in which the fame is to be inclofed, and forwarded by the pro6lor, and when the commiffion or requifition fliall be re- turned to the office, it will be forwarded to him, and he is then to fue out letters of adminiftration, and fend them to the infpecior with his charges noted thereon. And then this certificate the in- fpecior fliall fign, and addrefs to a pro6lor in Doc- tors. Commons, and ihall at the fame time inclofe therein a letter addreiTed to the minifter and churchwardens, or elders (as the cafe may be), of the parilh,. within which the party then r-efides, franked by the treafurer, paymafter, or infpedor, in which the previous commiffion or requifition is to be inclofed, informing him of the application attefted by him, and the two churchwardens, or elders, and requiring him to fwear the party ac- cordingly, provided he anfwers the defcription con- tained in fuch commiffion or requifition j and when the fame is executed, to return it to the pay office, and to fpecify and defcribe the receiver general of the land tax, colleflor of the cuftoms, or of the excife, or the clerk of the check, whofe abode is neareft to the party applying, when fuch perfon will be directed to pay him the wages due to the deceafed j and defiring the minifter, if the applica- tion Ch. III. - TO SEAMEN. tion was. not attefted by him as therein ftated, to return the inclofed commiffion or requifition, that means may be taken to difcover the impofition ; and the prodor fhall immediately, on receipt of fuch certificate inclofed in fuch letter, f\ie out the previous commillion or requifition, and inclofe it, with inflruclions for executing the fame, in fuch letter, and fliall tranfmit the letter by the general poft to the minifter and churchwardens, or elders, and they immediately on the receipt thereof fhall proceed to the execution of fuch commiffion or re- quifition, and the fame being fo executed, fhall tranfmit it to the treafurer or paymafter; and if the party applying fhall refide at a diftance from the place where the wages, pay, prize-money, or other allowance of money due the deceafed, are payable, they fhall fpecify and defcribe one of the perfons enumerated in the letter, who may refide nearefl to the party fo applying, and the treafurer or paymafter fliall immediately on the receipt thereof fend the previous commiffion or requifition, fo executed, to fuch prodtor, who fhall, without delay, fue out letters of adminiftration in favour of the party fo applying, to the eftate and effeds of fuch deceafed perfon. The flatute alfo prefcribes fimilar regulations in regard to the grant of admi- niflration to a creditor of fuch inteftate. The provlfions of this a£t, I have already men- tioned, are extended by the flat. 32Gfc. 3. c, 6j* to Ireland. G3 SECT, 83 OF ADMINISTRATION ON DEATH Book I. SECT. vir. Of adminijiratiom in cafe of the death of the adniini- firator-t or of the executor inteftate. I AM now to confider the effeft of the death of an executor, or adminiftrator with regard to the adminiftration. Where adminiftration \% granted to two, and one i.. 241. Ca. ' dies, the furvivor Ihall be fole adminiftrator ' ; for Temp. falb. j^ jg j^^j. jjj^g ^ letter of attorney to two, where, by the death of one the authority ceafes, but it is an office analogous to that of an executor, which fur^ b 3Bac.Abr.56. yiyes ^. a Vern. 514- SI Vin.Abr.69- £(imor (B. 7.) -^^ adminiftrator is merely the officer of the or^ dinary, prefcrioed to him by a6t of parliament, iri whom the deceafed has repofed no truft, and, there- fore, on the death of that officer it refults to the ordinary to appoint another. And, if A/s execu- tor die inteftate, the adminiftrator of fuch executor has clearly no privity or relation to A. fmce he is commlffioned to adminifter the effedts only of the inteftate executor, and not of the original tefta^ tor. Jn both thefe cafes, therefore, it is neceflary for the ordinary to commit another adminiftra- « Com. Dig. tion .^ 4icImor.(B. 6.) " 4 Burn Eccl. L. 24.1. 1 Ron. guf^ vi^ith regard to the fpecies of adminflration Copi. 506," * to be thus granted, ^ diftindion arifes beCween the cafe Ch. III. OF ADMINISTRATOR. cafe where the executor, or next of kin had before his death taken out probate, or letters of adniini- flration ; and where he had omitted to do fo. 8s If an executor die before probate, his executor cannot prove, or take on hiinfelf the execution of the will of the original teftator, becaufe he is not thereby named executor to fuch teftator. He only- can prove the will, who by the will is conllituted executor. The omiflion of the firll executor to prove the fame on his death determines, although it does not avoid the executorfhip, or vacate the ads, which he has performed in fuch charader ^. 1 " Vin. Abr. ^ »?• 90 III. I Salk. 308, When this cafe occurs, anadminiftration muft 614. pW.'^* be granted, and the grantee fhall be the reprefen- tative of the party who originally died : but it fhall be an immediate adminiftration, that is, without making mention of the executor, whether he did in point of fad adminifler, or not; becaufe adtni- niilering is an aft in pa'/s^ of which the fpiritual court cannot take notice. The ordinary muft com- mit adminiftration, as it appears to him judicially : and it can thus appear only by the probate % « i Salk. 302. 3 Bac.Abr.19. In like manner, if A. dies inteftate, and B. is in- titled to adminifter, and dies before he takes out adminiftration, an immediate adminiftration Hiall be committed : in fuch cafe it fhall be granted to the reprefentatives of B. if the only party in dif- tribution, in preference to the reprefentatives of A. becaufe by the ftatute of diftributions B. had a C 4 vefted OF ADMINISTRATION ON DEATH Book I. vefled interefl, and in fuch grant the ecclefiafllcal i court regards the property ; and therefore ix'^ a fon die inteftate, without wife or child, leaving a fa- ther, and the father fliall himfelf die before he takes out adminiftration, it fhall be committed to his re- L" T'a/^^P pi'cfentatives ' ; and fo it has been held in cafe the wms.-,8i.vid. wife die inteftate, and the hufband die before he alfoCom.Dtg. , . .^ . • n ,, i i t. Admor. (B. 6.) takes out admmiitration, it Ihall be granted to the ^^°"vo"'„"'^^. reprefentatives of the hufoand ; but it is now fct- tied that the court is in the latter inftance bound by ftat. 31 £. 3. to grant adminiftration to the next of kin of the wife, and then he iliall be a trufi.ee in ^ hf n^kcd equity for the hufband's reprefentalives *. L. a:,5. II Viii. Abi-.8«. pl. 27' -rr 1 1 r 1 111 J vtf. 16. Ii the decealed executor natn taken out pro- J Will 169. iP, jj^^fg Qj. fi^g deceafed's next of kin adminiftration, XA'iTis. 382.. ' iit'U 1/ then another fpecies of adm.iniftration, which hath not hitherto been mentioned, becomes necef- fary, namely, an adminiftration de bonis non, that is, of the goods of the dcceafed left unadminifter* ed by the former executor, or adminiftrator, by the grant of which, fuch adminiftrator de bonis non be- comes the only perfonal reprefentative of the party y Ti Tin. Abr. orieinally deceafed ^ ;!4-.Coin Dig-. AdiTicr.(B 1.) Adminiftration of either fpecies is, generally 3 Bac. Abr.19. fpeaking, granted to the next of kin of fuch party. But in cafe there be a rcfiduary legatee, it fhall be granted to him in preference to fuch next of kin on the principle above ftated, becaufe the next 1 Com.Di?:. of kin has then no intereft in the property '. Thus 1 ve'ntr. 219. Vilicxt A, made C. executor and refiduary legatee, 2 Lev. 56. „P^i 3iiac.Abr.19, ' ^^^ 87 Ch. III. OF ADMINISTRATOR. and B. made C. executor without giving him the furplus ; and C. afterwards died inteftate : it was held, that the adminiilrator of C. fliould be admi- niftrator de bonis non of A. but that the next of kin of B. fhould be adminiftrator de boiiis non of B. ". " " vin. Abr. If the refidue be bequeathed to feveral perfons, 567. fuch adminiftration may be granted to all or either of them, as in the cafe of an original adminiftrator, although there be no prefent refidue ^ But for fuch i Com. Dig. purpofe there muft be a complete difpofition of vidTLef'V the property"*. If the executor be himfelf refi- n, ix vin Abr duary legatee, although he refufed, or before he ^')- J^« --5- proved the will, died Intejiate, an immediate admi- niftration with the will armexed fhall be granted to his adminiftrator ". If an executor be reiiduary n u vin. Abr. legatee, although he rcfufed or died before probate, |vV^^'-g^°^^' leaving a will, his executor will be entitled to fuch adminiilration ". If an executor and refi duary le- ° Com. Dig.f gatee, after probate, die inteftate, adminiftration de Dy."^-7a.^ bonis non, with the will annexed of the teftator, fhall be granted to the adminiftrator of fuch exe- cutor. If a feme covert executrix die inteftate, then as to the effects which flie had in that capacity, ad- miniftration fhall be granted to the refiduary legatee if any, or to the next of kin of the teftator. If fhe were herfelf refiduary legatee, it fhall be granted to herhuft)andP. 89.91.111. a P.Wms. i6t» 4 Burn Eccl. Where there are two executors, of whom only l. a56.3Salk:. one proves, and dies, and then the other renounces, 9^* "i. 95.108* the executors of the ac"ting executor have no con- popil'^|'o6.r'' cern with the adminiftration of the goods unadmi- niftered. gg ADMINISTRATION, HOW GRANTED, Book I. niftered, but the fame fhall be granted to the next Adm^r'. (B^' ) ^^ ^^^"' ^^ refiduary legatee of the firfl teflator f. Salk. 311. So, if there be two executors, one of whom ap- points an executor, and dies, and the furvivor dies inteflate, the executor of the executor (hall not in- termeddle with the firfl teftator's effects ; for the power of his testator was determined by his death, and the executorfliip veiled folely in the other ex- ecutor as furvivor. So where an adminiftrator is appointed during the minority of the executor of an executor, he has no authority to intermeddle with the effects of the original teftator. The ordinary, in either cafe, iliall commit adminillration de bonis Jion, to the «l 11 Vin. Abr. .... - , , p , • • , 67. in not. 8y. next oi Kin or reliduary legatee or the origmal Off. Ex. roi. fpffTfor*' Cro. Eiiz.iu. teiLaior . sBac Abr. 13. SECT. VIII. How adminijlration floall be granted — ivhen void-^ ivhen voidable — of repealing the fame — how a repeal affe6ls mefne acts. "..vin.Abr. ADMINISTRATION is generally granted by 70. 1 Show. writing under feal ; it may alfo be committed by Godoip?! 231, entry in the regitlry, without \t\.\.trs fub ftgillo), Admor'^'fB 7.) ^^^ ^^ ^^^^0^ ^^ granted by parol \ In 89 Ch.iii. when void. In letters of admrniftration, the ftyle of jurifdic- tion, as well as the name of the ordinary, ihali be , ^ infertea^ E ci. l. 229 A party may refufe the office, nor can the or- dinary compel him to accept it ^ "4 Burn ^ '^ *^ £ccl.L. 233. Where adminiflration is improperly granted, a diftinclion occurs between adininiflrations which are void, and fuch as are only voidable. If there be an executor, and adminiflration be granted before probate, and refufal, it fliall be void on the will's being afterwards proved, al- though the wall were fuppreffed, or its exiftence were unknown \ or it were dubious who was exe- a Com. dIjt. cutor «, or he were concealed, or abroad ^, at the piowd! ayg! time of granting the adminiflration. Or, if there *^^* be two executors, one of whom proves the will, Adtnor (B ^* and the other refufes, and he who proved the will Moore 636. dies, apd adminiflration is granted before the re- f Tivin.Abr fufal of the furvivor, fubfequent to the death of ^^--^^^'-^^^ his co-executor ; or, if granted before the refufal of the executor, although he afterwards refufe ^ \a°^^'^^^' ' o ' Admor. (B. 2 fuch adminiflration fliall be void. It fliali alto be B- i^O ^-Lev void, if granted on the ground of the executors , show. 411. becoming a bankrupt, as ic was before the flat. 2 8 Geo- 3. ^ 87. if committed durante minor itatey where the infant executor had attained the age of feventcen\ So, alfo, it fhall be void if granted by ".^.'^co^Vj^L an incompetent authority, as, by a bifhop, where 6 the Q WHEN VOIDABLE, Book I. k 3 Tiac. Abr. the iiitcflate had bona notahUia'\ or, by an arch- hkmo^i^'.t) bifhop, of effeds in another province '^ In all thefe inflances the adrniniflration is a mere ^ Hard. 216. ... ^-,, » • n i f • nullity. Ihe executor s nitereit the ordinary is incapable of divefling. But there is another de- j (^^^ |3j^_ fcription of cafes, where adrniniflration is not void, Admor. (B.6.) j^^j- voidable only by the acl of the fpiritual court, Sa'.k. 38., 1 1-. -c y • 'i\ -1 J Wins. 43- as, it aamimltration be granted to a party not next *" Com. Dig. of kin ', or to one of kin together with one not of Alo^!' ^^"^'"^ ^^^"> ^^' ^° ^ ^^^^^ ^"^ ^^^ hufband '"j or to the « 5 1 vin. Abr. Wife's iicxt of kin inilead of the hufband " ; or, if 85. 1 Sid. 40j. it be granted on the refufal of an executor, who 1 <^o"^- 1^1'- ^ had before adminiftered ° ; or, if it be granted, ja.dmor.; B.S.) . . . . ° Oif.Ex.4o.4:i. non "jocaiis jure 'uocandisy without citing the ne- p 1 1 Vin. Abr. ceiTury parties P; or, to a ftranger ° ; or, by fraud Admo!\'(i3.8') ^^^ mifreprcfentation, though otherwife duly I Lev. 305. granted '', as where the grantee, by falfe fuggef- ^ ' jJ''"! ■^'^I' tions, prevented a party in equal degree from ap- Tr- Av plyincj ; or, in cafe adrniniflration be granted in ^ u Vin.Abr. ^ ■' " . . o J14. 517. ccnfequence of the incapacity of the next of kin, Fitz 1 \303. ^^^ jj^g incapacity be removed '; or, if the grantee ' II Vin.Abr. n 1, , f J • , -r • 115. 1 Sid. 373. ihdili become nc?i coTiipos ?7ientis, or otherwiie inca- t,i Vin.Abr. p^blc ' ; or, if it be granted to a creditor before 115, T.16. thg renunciation of the next of kin"; it is not Ad^^or! (vSu) ^'^^^> ^'^^^ voidable, and may be repealed. I Salk. 38. 4 a49. stra. 911. If there be a refiduary legatee, and adminiflra- w c^^ j^; tion be granted to the next of kin, though not A.'!mor.(i>. 8.) void, it may alfo be repealed, whether there be any ■i Lev. 56. « r ^ r J Vcntr. 219. prelent rehdue, or not "'. Although Ch. III. OF REPEALING THE GRANT. qj Although a feme covert die entitled to feveral debts due to her before marriage, which by law do not belong to the huiband, and her next of kia appear, and take out adminiftration, it fhall be repealed, and adminiftration granted to the huf- '^nVm.Abr, , J 92. -n nr)t.n6, band'. u Mod. 4 32. If there be two grants of adminiftration, one by the metropolitan, and the other by the biPaop, where there were not i^ona netabilia^ the preroga- y n vin. Abr. tive adminiftration may be repealed y. "+• p"- ?'"'■• Aduior.(B. 8.) At common law the ordinary might repeal an adminiltration at his pleafure, but now, fnice the flat. 2 1 H. 8. if adminiftration be regularly granted « ir Vin. Abr. to the next of kin, according to the provifions of Ecci. L. h8. the fame, the ordinary has no fuch difcretion. If \^°- '^°™;^'^: he affign a caufe for a repeal, the temporal courts i P.wms. 43. . , f- ' r rr • ■.' ^i-? • ^^^- '^''d. Stin- are to judge or its lumciency ^. 1 bus, it was ner 156. held, that, where the ordinary had eleded to grant , n\ adminiftration to the father, he had no power of 3 Saik. 2a. n repealing the adminiftration at the fuit of a party i Kebi. (2^^^ alleging herfelf to be the widow ^ ^^■^^ ^ Sid.179. So where adminiftration was granted to a fifter, a married woman, pending a caveat entered by the brother, on appeal, it was adjudged, that the ad- b,ivin. Abr. miniftration ftiould not be revoked at his fuit''. *'v * ^*^^* 186. And, where adminiftration was granted to the younger brother, and the elder fued to repeal it, the decifion was the fame j but, in that cafe, it was 92 OF REPEALING THE GRANT. Book I. was intimated it would have been difl'erent if the c ,T Vin. Abr. adtiiiniftration had been granted pending a caveat". lit FitzgSb. Nor, if adminiflratlon be granted to a creditor, 3*>3- and, afterwards, a creditor to a larger amount ap- <» II Vin. Abr. pear, iliall it be revoked for him \ So, where ad- ii6. laMod. miniftration, during the infancy of the inteflate*s fifter, was committed to the great-grandmother, and, though the grandfather, the plaintiff in pro- hibition, fuggefted, that the adminiftration was granted by furprize, and, that as he was nearer of kin, it ought to be granted to him ; the court thought, in this inftance, propinquity to be no ground of preference, and, fmce the ordinary had no power at common law to grant fuch admiui- Ifration in the cafe of an infant next of kin, but only in that of an infant executor, having once executed his authority, the grant ought not to be *= II Vin. Abr, repealed ^ So where A., an infant, was made Mod"-''" 2^ executor, and refiduary legatee, and, if he died ikin. 155. under age, then B., another infant, was appointed refiduary legatee, and, on the Hke contingency, the refidue was bequeathed to C. ; adminiftration, during the minority of A., was granted to M. his mother ; A. died intef!ate under age, B. was ftill an infant, and on the queftion whether the admi- niftration might be repealed, and granted to C. the court feemed to be of opinion, that the ordi- nary had executed his authority, and that M. ftiould not be divefted of the adminiftration during the f 11 vin. Abr. . r c n t 116. 12 Mod. infancy ot i5. » 436. 438. Ch. III. OF REPEALING THE GRANT. q^ So alfo admlniftration t^e bonis 7ion, with the vill annexed, granted to one, where two had equal right is good, and Ihall not be revoked e, e n vin. Ahr-. Il6. a Jo. l6i. But, in general, if admlniftration be granted to a wrong party, in fuch cafe the ordinary may repeal it, and grant it to another, for he has not executed his authority, and it is a power incident to every court to rectify its errors^. ^ nVin.Ahr. 114. 4 Burn Eccl. L. 24!!, Therefore, where a feme covert had died in- a1?'^°"}P1^C ' ^ Admor. (B.8.) teflate, and her next of kin had obtained admini- i P- Wms 41. ft^• - 1 1 • n 111 ffd. vid. Sk.iit- ration, it was adjudged, that it inonld be re- ner 156. pealed at the fuit of the hufband, becaiife the or- • dinary had no power, or eleftion to grant it to anv ether th.n to him ■. , ' ;,'.:X?^- Er-cl. L. 24S. " Salk. 42. If the adminiflratlon be repealed for want of ^ form in the grant, in fuch cafe the ordinary mull re-grant it to the fame party, although there be others in equal degree ^ *" nVm.Abr, If adminiflratlon be repealed quia linprovidc^ that is, where, on a falfe fuggeftion in refpeft to the time of the inteflate's death, it iffued before the expiration of a fortnight from that event j or where the court on committing it took fecurity inadequate to the value of the property, it fhall be granted to the fame perfon '. * Com. Diu. *^ Admor. (B 3.) Nor can the ordinary revoke the grant on ac- count of abufcj although the letters were iffued after i Sid. 2v3- OF REPEALING THE GRANT. Book L 94 after a caveat entered, for he ought to take luffi- » iiVin. Ahr. cient caution in the firft inftance to prevent mal- ii5.c:om Di,*.'. adminiftration "". Nor can he revoke it on the ad- A^'mor.(B. 8.) , , . . -. >, I Ventr. ai9. mmiltrator's omiflion to bring in an inventory and n II Vin. Abr. accOUnt ". 1 1 6' Sty. I02. If the grant regularly ifTues, and fubfequent let- ters of adminiftration are obtained by collufion, fuch fubfequent letters are void, and lliall not re- • II Vin. Abr. peal the former adminiftration ". 114. 3 Co. 78 b. Some authorities maintain, that if the ordinary commit adminiftration to the wrong party, and then commit it to the right, the fecond grant is a repeal ? 11 Vin- Abr. q£ j-j^g f^^f]- vvithout any fentence of revocation ^ ; Ecci.L. 849- but in other cafes it is held, that the firft is not ,,. ., avoided except by judicial fentence '^. And the *i II Vin. Abr. r j j j.5,innot. practice is, to call in and revoke the firft admini- Cro. Ehz.3'5- ftj-^tion before the fecond is granted. But after an adminiftration by an archbifliop, if the biftiop to whom it belongs grant adminiftration, and then the ^rft adminiftration be repealed, the adminiftra- tion granted by the biftiop before the repeal ftiall' r Com. Dig. ftand-good"". Admor.(B. 3.) t Lo. 13s t). . .0 . . So, in all cafes where the firft adminiftration is repealed, the fecond ftiall be valid, though commit- ted after the grant of the firft, and before the re- s Com. Dig. peal of it '. Adnjor. (B.3.) ^ Vid.2 Brownl. "9- If the ecclefiaftical courts, in the granting or repealing of adminiftrations, fnall tranfgrefs the bounds Ch. IlL OF PROHIBITION. bounds which the law prefcribes to thcili, a prohi- bition from the temporal courts Ihall be awarded, as in the cafe above-mentioned, where the ordinary- has granted a regular adminiftration, and is pro- ceeding to repeal it on infufEcient grounds, fuch as mal-adminiflration ", or that the letters iffued after a caveat entered '' : but ho prohibition to the ecclefiaftical courts lliall iffue on fuggeftion that they are about to repeal an adminiftration granted by furprize, or that they refufed to commit the ad- miniftration to the inteltate's next of kin, but were proceeding to grant it to another, for the point, who is in fad: next of kin, is of fpiritual cogni- zance, and muft be conteded before the fpiritual jurilHidiion ^ How far the repeal of an adminidration affects the intermediate a6ls of the former adminiftrator remains now to be confidered. 95 ^ I Ventr. aig, AI. 56. "= I Lev. iU. Diib. iSid.371* I Lev. 1X7. et vid. fupr. 93, 2 Bl. Com. 112. 11Vin.Abr.92. ik;. Com.Dig. Admor.B.7.8. And here we mufl again recur to the diftinclion between fuch adrainiftrations as are void, and fuch as are only voidable. If the grant be of the for* mer defcription, the mefne afts of fuch adminiftra- tor fhall be of no vahdity ; as, if adminiftration be committed on the concealment of a will, and after- wards a will appear ; inafmuch as the grant was void from its commencement, all a£ts performed by the adminiftrator in that character ftiall be equally void% Or if adminiftration be granted before the refusal of the executor, a fale by the adminiilrator o^ the teftator's effeds fhall be void, although the 3Bac.Abr.50. H executor * Corti. Di^. Admor. B. id» 2 Lev. 182. £^ HOW A REPEAL Book!. f II vin. Abr. executor afterwards appear and renounce ^ Or, 95.iM0d.146. if the executor omit proving the will, whereby ad- miniflration is granted to a debtor, the executor may afterwards prove it, and then-fue the admini- flrator for the debt, which is not extinguilhed by « Com. Dig. the adminiflration 2. So, where an adminiftratrix i LcoH." 90.'°' fued a debtor of the intefl:ate, and, pending the fuit, 41Vin.Abr.94. another by fraud procured a fecond adminiftration to himfelf jointly with her, and after judgment re- leafed to the debtor, on which he brought an au- dita querela^ and in tlie mean time the fecond ad- miniftration was revoked, the releafe was held to ^ Com. Dig. be of HO avail '\ Admor. B. lo. Dyer 339. 6 Co. .9. Thus in all other cafes, the ads of the admini- lirator are of no eliccl where the adminiftration is unlawful ab initio. If the grant were only voidable, then another diftinQion arifes between the cafe of a fuit by cita- tion, which is to countermand, or revoke, former letters of adminiftration ; and on appeal, which is t (> Co. iS.b. always to reverfe a former fcntence '. In cafe of an appeal fuch intermediate acls of the adminiftrator ftiall be ineffectual, becaufe, as we have before feen, the appeal fufpends the for- mer fentence, and on its reverfal it is as if it had * 3 Term Rep, Hcver exifted ^. 119. J I Vin. But if adminiftration be only voidable, and the fuit be by citation, all lawful ads by the firft ad- miniftrator Abr. 117. Ch. IIT. AFFECTS MESNE ACTS. ^f miniftrator fhall be valid, as a bond fide fale, or a gift by him of the goods of the inteftate ; and fuch gift fhall be available, even if it were with intent to defeat the fecond adminillrator, or were made pendente lite, on the citation j although, by the flat. 13 EUz. c. 5. it be void as to a creditor '. So, if ad- Admor. b^§. minift ration be committed to a creditor, and after- I ^^^^'J"^: ' 6 Co. li;. D- wards repealed on citation at the fuit of the next 11Vin.Abr.95. of kin, fuch creditor fhall retain againfl the right- ful adminiflrator, and his difpofal of the goods pending the caufe, and before fentence of repeal, fhall be effeftual "'. If an adminillrator affign a "" ^Saik 38. J r 1 r • • f 1- " Vm.Abr. term, and on a lubiequent citation to repeal the 117. i ventr. adminiflration, it is confirmed, and on appeal the *^^' fentence is reverfed, the aflignment fhall be good, for the repeal is merely of a fentence on citation^ and therefore of the nature of a fuit on fuch pro- cefs, confequently the eflect is the fame as if the firfl adminiflration had been avoided In fuch fuitj and not as if an appeal had been brought in the firft inflance ". ° ilv'^^o.^*' 1 1 Yin. Abf. But where an adminillrator fold a tel-m ifi truft for himfelf, although the adminiflration were re- voked on a fuit by citation, and not on an appeal, the aflio-nment v/as decreed to be fet afide ■*» ** ^^ Y,? ^j?'" C" ■95- a Chan. C** Whether the adminiflration be void or voidable, a bond fide payment to the adminiflrator of a debt due to the eflace fhall be a legal difchal-ge to the debtor, by analogy to the Cafe before flated in re- gard to fuch payment under probate of a fofged H a wilL 1J9- rt ' -HOW A REPEAL Book I. .„ will P. So in a cafe as early as the time of Charles V Allen V. ■ . . n r 1 1 n- Dundas, the Second, where the adininillrator or the leliee Ls.^'supr.Ti- paid rent to the adminiftrator of the leiror, and the latter adminiitration was repealed, and granted to A. and he brought an action as well for the rent paid to the former adminiilrator of the lellbr, as for rent which accrued due fubfequent to there- peal» and obtained a verdict and judgment for the fame, the defendant was relieved in' equity in regard to the rent he had paid, inafmuch as he had paid it q II Yin. Abr. j^ ^j^^ vifible adminiltrator ^ 1 17. lin. Hep. 4.0. ' J I Vin Abr. 1 1 J.. Bro. Admor. pi 3- This, however, is to be underftood only where the grant is revoked on citation ; if it be reverfed on appeal, the adminiftrator's authority was fuf- pended by the appeal, and of courfe luch payments iluill be void. But whether the admlnhlration be void, or void- able, or be revoked on citation, or appeal, if an ac- tion be brought by the adminiHrator, and, while it is pending, adminiflration is committed to ano- ther, the writ fhall be abated ^ Or, if the adminiltrator before the repeal obtain a judgment for a debt due to the inteftate, he is not entitled to take out execution, but the dcfen- ioV.iiT.Coin. d^i^t ^^y avoid the judgment by an audita que- Dit'. Admor. ;.^,/^ s^ go^ }f the defendant be actually in execu- 149. 1 Mod. 62. tion, the judgment fliall be vacated in the fame Lutw. 343. jjianner, and the execution fet afide ' : for in fuch TiVvdv.^x'^! cafes the plaintiflliad ijo authority but by virtue jBac.Abr. JI-. of Ch. irr. AFFECTS MFSNE ACTS. 99 of a commlfTion from the ordinary, and when that is determined, his authority is determined with it. But on aflidavit to flay execution on a judgment recovered by an adminiftrator, on the ground that the letters of adminiftration were repealed before the judgment entered, it was held that the matter did not come legally in queftion before the court, and that the party ought to bring an audita que- rela''. "iiViii.Abr. 117. Sty. 417- If adminiflration be granted, and afterwards an executor appear, if the adminiftrator hath paid debts, legacies, or funeral expences, he fhall be al- lowed to dedud fuch payments in the damages re- covered againft him in an adion by the executor ^ ^ 3 Bac. Abr. H3 ( loi ) B o o K ir. OF THE RIGHTS AND INTERESTS OF EX- ECUTORS AND ADMINISTRATORS, tlHAP. I. OF THE GENERAL NATURE OF AN EXECUTOR'S OR u4DMlNlSTRAT0R'S INTEREST— DISTRIBUTION OF THE SUBJECT mrn reference to the different spe. CIES OF the DECEASED'S PHOFERTY. AN executor, or adminiftrator reprefents the perfon of the teftator, or inteftate, in refpedl to his perfonal eftate : the whole of which, gene- rally fpeaking, vefts in the executor immediately on the teftator's death: in the adminittrator on the grant of letters of adminiftration ' ; and fuch Admon.B.^io, grant hath relation to the time of the inteftate's i'-^-o-L'". o 209. 3 Bac. deceafe ". Abr. <;7. Off. Ex. Suppl. 47* The intereft which fuch reprefentative takes in Admon. B. n- the deceafed's property is very different from that'^^ Roll. A x, which belongs to him in regard to his own. In- {lead of being an abfolute intereft, it is only tempo- rary, and qualified. He is not entitled in his owa right, but in auter droit, in right of the deceafed. • Qff jtx sc He is entrufted merely with the cuftody, and diflri^ 83 Piowd.^ij. bution of the effei^s \ \'q'q.'uX!'^' H 4 Hence, 102 OF THE NATURE OF Book U, Hence, If an executor be attainted of felony, or treafon, he incurs a forfeiture of all his own goods and chattels, but thofe of which he is poflefled as executor fl;iall not be forfeited. If he grant all his property, fuch as belongs to vid^'f Roll.* him in the character of executor fhall not pais, un- Abr. 58- p]. 8- j^fg he be fo named in 'the iyvdut % or unlefs he have I Lfon. 26?. <-> Shep. Touch, no Other property '^. 94- ^ 1307! ^^^"^* If he become bankrupt, the commiffioners can- not feize the fpecific effeds of the teflator, not even ' Aur'i' l!^^ i^ money, which fpecifically can be diftinguifhed, f II vin. Abr. a"*^ afcertained to belong to the deceafed, and not 272.eom. Dig. to the bankrupt himfelf ^ Nor can the teflator's Airmen. Bio. , • r i. ^ » Off. Ex. 86. goods be taken in execution tor the executor s Ncwmair debts, either on a recognizance, ftatute, judgment, 4 Term Rep. or for his debts of whatever nature ^, unlefs there comra" See* be fufficient evidence, either direft, or prefumptive, BoourTbid! ^^ ^he executor's having converted the goods to his 625. ill not. own ufe *, E Vid. Farr v. Newman, and - , , , _,. aifo Quick v. Therefore, where an executor brought an action lud'puil! 293*": in the Court of Exchequer, fuggefling that the de- fendant detained from him one hundred pounds, which he owed to him as executor of J. S. where- by he was the lefs able to pay a debt due from him- felf to the crown ; the writ was abated, becaufe the court would not intend that the king's debt could be fatisfied by a judgment recovered by the b Off. Ex. 87. pUintifF in that capacity \ Nor loj: Ch. h AN EXECUTOR'S INTEREST. Nor can an executor bequeath the efFetls which ., .i»ri !• •!_ '^ !iVin,Abr. he holds in that right s. And if he die without a^,j. vunvd. will, his adminiftrator fhall not, as we may remem- s^^s- Otf. Ex. ber, intermeddle with the teftator's eftate.' Nor if an executor die in debt, lliali the effects of the teftator be Uable in the hands of the executor's re- prefentative, to the payment of the executor's debts". b Off. Ex. 86. So, if an executrix marry, all the perfonal chattels of which flie is pofleffed in her own right, are of courfe abfolutely vefted in the huiband. But in refpect of the goods of the teftator, they arc not transferred by the marriage '. » Off. Ex. Sf. Nor if the hufband of an executrix fue jointly with her for a debt due to her in that character, and . flie die after judgment, and before execution, can the hufband have execution on the judgment ; for although he were privy to the judgment, yet he fliall not recover the debt, becaufe it belongs to the teftator's reprefentative ^ Nor fhall a term in the ^g' ^"".Ex?' hands of the hufband in right of his wife as admi- cution. jiiftratrix be extendible for his debt K 1Cro.Eliz.29x, But where A. appointed his widow executrix, who continued in pofTellion of his goods during three months after his death, and at the end of that time married B. ; and, for half a year after the marriage, the goods were treated by them both as the goods of B. it was held, that they might be taken in exe- « Quick v. cutioi) at the fuit of B.'s creditor "", tTuil'. l^^f' Such ,^. DISTRIBUTION OF Book If. Such is the nature of the intereft to which an executor or admiiiiftratorj is entitled in that right, and fo diftinguifliable is it from that which pertains to him in his own. The perfonal property hi which they are thus refpedively interefted, .hat is of a faleable nature, ^,nd may be converted into ready money, is called aflets in the hands of the executor or adminidra- tor, that is, fufficient, from the French ajfe-z^ to make him chargeable to a creditor, and legatee, or party in diftribution, fo far as fuch goods and chat- s' a B' Ccm. tels extend ". ^lo. On. £x. £u V2i\. 52. The perfonal effects comprehend fo wide a circle, that in order to view them with any diliinclncfs, it is neceflary they fliould be arranged in a variety of clailes. I niall therefore firfl confider them as didfn- guiflied into chattels real, and chattels perfonal, in the deceafed's pofleffion at the time of his death. 1 fiiall then treat of fuch as were not in his pof- leffion. i\nd. Among fuch as were not in his pofleffion, of things in action, as well thofe where the canfe of action accrued in his life-time, as thofe where it ac- crued after his death. I fliall then proceed to the examination of fuch chattels as vclt in the executor or adminiftrator, 4 by Ch. II. THE SUBJECT. by condition, by remainder, or increafe, by affign. l-nent, by limitation, and by eledion. I fhall next enquire what chattels go to the heir, fucceflbr, devifec, or remainder-man. Then fliew to what the widow fhall be entitled. Then defcribe the nature of the interefl of a do* nee mortis caufcu And, laftly, point out how eiFe£ls which an exe- cutor or adminiftrator takes in that charader may l)e(;ome his own. T05 CHAP. IL QF THE INTEREST OF AN EXECUTOR OR AD^ MINISTRATOR IN THE CHATTELS REAL AND J'ERSONAL, SECT. L Of his interefl in the chattels reaU TTIRST, the perfonal reprefentative is entitled to • the chattels real, that is, fuch as concern or fa* vour of the realty, as terms for years of houfes, or }a?id, mortgages, the next prefentation to a church, eflates TC6 ^^ '^^^^ EXECUTOR'S INTEREST Book 11. eflatcs by ftatute merchant, ftatute flap'le, or elegit, interefts for years in advowfons, commons, fairs, corodies, eflovers, profits of leets, and the like. This fpecies of chattels is flyled by the civil law immoveable goods, and, inafmuch as they are in- terefts ilTuing out of, or annexed to real eftates, in the immobility of which they- participate, by our law they are defcribed as real. And alfo, as the utmoft period of their exiftence is fixed and limited, either for fuch a fpace of time certain, or till fucH a particular fum be raifed out of fuch a particular income, and confequently are diftinguifhable from the low^ eftate of freehold, the duration of which is neceffarily indeterminate, they are denominated -iBl.Com. chattels % 386. 3 Bac. Ahr. ^ijysitfio, ^4 i^V'in.Abr! Lauds devifed to an executor for a term of years 175. 227. Cro. for payment of debts, are alfets in his hands ^ Tao. J7I- Off. '■ -' ' i,x. guppl.j9. b II viii.Abr. Leafes are likewife afTets to pay debts, although ,40. i liruwn?. ^^^ executor allent to the de\nre of them \ And 4'' „. .. in cafe a term be devifed to the executor, and he *- II Vm. Abr. ' •i33. I than, enter, and die before probate, the term fhall -be Ca 2'7. . . "* ' deemed to be legally vefted in him by his entry, J Dyer 367.3. and the devife executed' without- the probate ^. So a Icafe for years determinable on lives is a chattel intereft, and fiiall vefl in the perfonal reprefentative * Off. Ex J4.. of fuch lefiee '. If an eftate be granted to A. pur autcr vie, bwt not limited to his heirs, and A. die in the life-time • of the fCjflui que vie^ or of him by whofe life it is holJeu Cn. 11. IN CHATTELS RITAL 107 holden, as there is no fpecIarocGiipant, the heir not being named in the grant, it {hall, by the jflat. 29 Car. 2. c. 3. go to the executor, and be affets in his hands for payment of debts, and after payment of the fame, the furplus of fuch eftate, by the flat. 14 Geo. 2. c. 20. fhall go in a courfe of diftribution hke a chattel intereft '. Thefe flatntes operate ^ ^ ^1. Com. ,, c n ... 120.258,159, equally on grants 01 eltates /«?• auter I'le m mcci- z6o." poreal hereditaments ; as if rent be granted to A. during the life of another, the rent by vlitae of thefc provifions has been holden to continue in the reprefentatives of rhe grantee dying in the life-time I ^J[^''^" ^^^ of the CCftld que l-te ^. Fearne'sCon- ting. Rem. 272, 233-3 P« In cafe of a tenancy from year to year as long as ^^!"^ ■^*" V* both parties pleafe, if the tenant die inteflate, the ift.46.Vid.alfa fame intcrefl as the deceafed had Ihall devolve on c. 17'! Sed vid. his adminiftrator \ 2Bi.C0m.160. Yaugh. 201. h Doe on dem. If the teftator were leflee for years, fifii, rabbits, Shore v. Por- , ' , . n 11 1 1 ^ 1 • *^^> 3 Term deer, and pigeons, ihall belong to his executor as Rep. 13. Vid. acceffary chattels, partaking of the nature of their ^/J^^-f j1J^%°" refpedive principals, namely, the pond, the war- ^^i"»'- 1 Black. ren, the park, and the dove houfe '. 6 Term liep. 295. If an executor hath a leafe for years of land of * o^'.v^tl. s^. , , - , •', , . iiVin.Abr, tne annual yalue or twenty pounds, rendering a i66.H.nrg. co. rent often pounds a-year, it fhall be alTets only for ^^•"•^*""^-'o- the ten pounds over and above the rent ". ^ 3 ^^^- Abr. 57-iiVin.Ahr, 230. pUz.S.C. A reverfion of a term is veiled in the executor F.x"suppi^J^*. mimediately on the teflator's death, ar.d fhall be f*^^ ^'d- <^ro, , Jac. 44.5. afiCts I08 OF THE EXECUTOR'S INTEREST Book 11. I II vin. Abr. aflets in his hands for its utmofl value '. If an ex- a+o. z Jo. 170. ecutor renew, the new leafe as well as the old fhall n> Pac Abr. ^6 afifets "". If A. be poffeffed of a term as execu- 58. aChan.Ca. tor, and he purchafe the reverfion in fee, he is ftill chargeable for the afiets in refpect of the term, al- though it be extinguiflied, fo that it fhall be inca- g Off. Ex. pable of vefting in his executor \ So, if the exe- 11 Vin. Abr. cutor of the leflfee furrender the leafe, it fhall be 117. p. I .1 . ^Qj^^^(3gj.gjj ^g affets, although the term be ex- yiCo. 87.b. . n.y ji Vin. Abr. "^" • 129. So, where A feifed of land in fee devifed it to B. for thirty-one years, for payment of debts, and appointed B. his executor, and, during the term, the fee defcended on B. ; it was adjudged, that, although by the defcent of the inheritance, the term was merged as to him, yet that it was in eje as to creditors and legatees, and fnould be aifets *"y!"Abr. in his hands % 529. ijn. jix. Suppl. 76. If A. has a term in right of his wife, as execu- trix, and he purchafes the reverfion, the term is extinct as to her, though flie furvive, but, in re- gard to a flranger, it fhall be confidered as alTets a Ti Vin. Abr. in her hands \ But, where A. on his mariiasre, 54. demifed lands to B., and B. re-demifed them to A, for a (horter term, fubjed to a pepper-corn rent, during the life of A., and, after his death, to an annual fum for the life of his wife, as her jointure, and a pepper-corn rent for the remainder of the term, and A. died, it was held, that the rc-de- mifed Ch. n. IN CHATTELS REAL, ,qq mifed term fiiould not be aflets to pay any of his debts, except fuch as affected the inheritance, in- afmuch as fuch term was raifed for a particular purpofe ^ So, where A. on the marriage of his ^ ^ ^' vVi^.""' ion B. fettled a leafc for years on him for life, 5- and on the wife for Hfe, and then on the ifilie of the marriage, and B. covenanted to renew the leafe from time to time, and to afiign it on the fame truft, and B. renewed the leafe in his own name, but made no aifignment to the truflees, and died ; the leafe was held to be bound by the agreement on the marriage, and that it was not aflets, nor liable to his debts ^ Nor, where a 237..2Vcm.*' leafe for years is granted on condition to be void ^^ on nonpayment of rent, and the condition is broken, and the leflee afterwards dies, fliall it be , ._ ., ' _ , « II Vin. Abn ailt^ts in the hands of his executor ''. Nor is the 228. z Leon. trufl: of a term, made aflets by the ftatute of frauds, ^^^' in the hands of the executor of ccjluy que trufl: % AbJ-"^2 V ^^'"* a Vern, 24.8. If the teflator die in pofleflion of a term for years, it fliall veft in the executor ; and, although it be worth nothing, he cannot waive it, for he mufl: renounce the executorflilp in totOy or not at all K But this is to be underflood only where the ^ Com. Dig. executor has affets, for he may relinquifli the leafe, b. 10. i sid!' if the property be infufficient to pay the rent ; but '^''- ^ j-"*'^* in cafe there are aflets to bear the lofs for fome 127- i Vcntr. years, though not during the whole term, it feems '' the executor is bound to continue tenant, till the fund is exhaufted, when, on giving notice to the vid. infr,^'*'** leflbr, he may waive the pofleilion ^ An J jQ OF THE i:XECUTOR'S INTEREST Book it An eflate, in fee, irt the plantations, is fubjeft to debts, and efteemed as a chattel, till the credi- tors are fatisfied, when the lands fliall defcend to *» itVin. Abr. ^]^q heir''. A leafehold eflate in Ireland is confi- vXtr^l'sl dered as perfonal eflate in England ; but, whether 4 Mo^d- ^^^^^^ a leafehold eflate in Scotland is to be regarded in L. 195. the fame light, feems not to be fettled '. » II Vin. Abr. a-)9. aP. ', A grant of the next prefentatlon to a living to J. S. during his life, is limited, and fhall not carry the prefentatlon to his executors, on his dying be- » IX Vin. Abr. fore the church becomes void \ 436. pi. 27,^8. Cro.Car.jo6. ^j^^^^g chattels real is alfo to be clafifed, the interefl flyled in law, the a?mwn, diem, et vajlwn, the year, day, and waRe, that is, where a party, who is not tenant to the king, is* attainted of fe- l6ny, all his lands, and tenements in fee finiple, are, after his death, forfeited to the crown, for a yeaf and a day ; and the king, or his grantee, and therefore his executor, during fuch period, hath not only a right to take the rents and profits of the eflate, but alfo to commit upon it whatever 1 3 Bac. Abr. % r i 6.. off. Ex. 54- waite he pieaics . i Bl. Com. Sii.'^iSj. Ti If rent be referved on a leafe for years, and the Vm. Abr. 175- \^(^q.^ ^-^^^ tj^e rent in arrear, at the time of his HyI'Lv^. ^^^^^^' ^^^^^^ so t^ ^^'»^ executor-. Abr. 63. ^ lefTee for years hath only a fpeciai interefl, and property in the fruit, and fhade of timber trees, fa long as they are annexed to the land, but he has a general property in hedges, bufliqs, and trees, not Ch. it. in chattels real. Ill nottimbe-r", and, confequently, the fame interefl "Com. Dig. ■fhall veil in his executor. If he be leflee, without ^co.^ea.b.Dy, impeachment of wafle, in that cafe, he has a ge- ^- ^- [ ^°'^- neral property, as v/ell in timber trees as others ; but, unlefs they are fevered during the term, they fhall not belong to him, or to his executor, but to the leflbr, as annexed to the freehold. Where fuch chattels concern corporeal heredi- taments, as leafes for years of houfes or lands, the executor is not deemed to be in poficffion of them, till he has aftually entered. But, in regard to fuch chattels as relate to incorporeal hereditaments, as leafes of tithes, the poffeiiion of the executor is neceflarily conftrudive, becaufe on them there can be no entry. At the indant, therefore, that the tithes are fet out, in a place however remote, he fliall be poffeifed.of them in contemplation of °cff. lix. xo8, If the leafe be of a reftoiy, confiding not only of tithes, but alfo of glebe lands, then, it ap- pears, that the executor is not in poffeiiion of the POfF. Ex. 109. tithes, unlefs he enter upon the lands p. The executor of tenant, from year to year, of an eftate under the annual value of ten pounds, 1 The King may gain a fettlement by refiding on it for forty v. the inh-^bi- j„-,- Q tants of Stone, "^y^ • 6TcrmJiep, a95- SECT. J J 2 OF THE EXECUTOR'S IxNTEREST Book II. SEC T. II. Of his intcrcfi in the chalids perfonal, animate, vegetablcy and inanimate. SECONDLY. Chattels perfonal are fuch things as are annexed to, or attendant on, the perfon of the owner ; and thefe, by the civil law, are deno- minated moveable. They are, alfo, to be didin- \^7. 380 °off. guifiied into animate, vegetable, and inanimate % The animate are alfo divided into fuch as are domltcSy and fuch as 3.vt feres naturce, fome being of a t.mie, and others of a wild difpofition. Thofe of a nature tame and domeftic, as fheep, horfes, kine, bullocks, poultry, and the like, are capa- ble of an abfolute property, and are tranfmiffible like all other perfonal chattels, to an executor. Thofe of a wild nature, as deer, hares, rabbits, pigeons, pheafants, partridges, and hawks, admit only of a qualified owncrfliip. Therefore, unlefs they are reclaimed, that is, rendered tame by arc, induflry, and education, or confined fo that they cannot efeape, and enjoy their natural liberty, or, unlefs they are incapable, through weaknefs, of flying, or running away, they are iiuUiiis in bonis, not regarded in the light of private property, and * a B!l. Cora, confequently cannot pafs to reprefentatives **. But Com. Dig. the animals, I have juft enumerated, provided they ■ens. ; . 2. ^^^ tame, fhali belong to the executor. He flrall, alfo. Cir. 11. IN CHATTELS PERSONAL. j j j alfo, be entitled to them, although not tame, if they be taken, and kept alive in any room, cage, or other receptacle S Nor can an abfolute property ^^O^"- ^x. 53. exifl: in filh, at large in the water ; but, fifli in a trunk, fliall go to the executor ". Alfo, hawks, ^B^.cc^^igs.' herons, and other birds, rabbits and other crea- tures, in nefts, or burrows, if too young to fly, or run away, are all to be claffed among perfonal cnatceis . ^ ^ni.com.yj^. Of the fame defcription are hounds, grey- hounds, and fpaniels, and, as accefifary to fuch chattels, a hunter's horn, and a falcon- er's lure^ And, fince the executor's intereft is ^ Oft. E:c. si- co-extenfive with that which was veiled in the teflator, the property in all his animals, however minute, in point of value, fhall go to the executor, as houfe-dogs, ferrets, and the like ' ; or although ^j Pj^^- Abn they were kept only for pleafure, curiofity, or }s! * " whim, as lap-dogs, fquirrels, parrots, and fmging- hlrds "^ " ' ^'" ^°"'' An executor fiiall, likewlfe, be entitled to deer in a park, hares, or rabbits, in an enclofed war- ren, doves in a dove-houfe, pheafants, or par- tridges, in a mew, fiih in a private pond, and, according to Bra6lon, to bees in a hive ; if, as we have before feen, the teflator were leflee for ^"P*"- ^^7- years of the premifes, to which they refpeftively ' 2 Bi Com. i , i 39^- Off. Ex. belong' 53.Hargr. Co. i^itt. 8. not.io. I 2 Thefe 114 OF THE EXECUTOR'S INTEREST Book U. Thefe various animals are no longer the pro- perty of an individual, or tranfmiirible to his re- prefentative, than while they continue in his pof- feffion. If they obtain their natural freedom, his property inflantly ceafes, unlefs they have animimi rcvertcndi, which is to be known only by their cufiom of returning. The law, therefore, extends this pofTeffion farther than the mere manual occu- pation. The qualified property in a tame hawk is not dlveded by his purfuing his quarry in the pre- fence of the fportfman, nor in pigeons, efpecially of the carrier kind, by their fiying at a didance from their home; nor in deer, by their being chafed out of a park, or foreft ; nor in bees, by their flying from the hive, if they are immediately purfued by the keeper, forefter, or owner. If they {bay or fly without the knowledge of the owner, and return not in the ufual manner, they are free, and open to the firft occupant. But, if a deer, or any wild animal reclaimed, hath a collar, or other mark put upon him, and goes and returns, at his pleafure, the owner's property in him fl.ill conti- nues ; but, if the deer has been long abfent, with- *" '- SI Com. Qu^ returning, fuch property fiiall ceafe ''. 392. Com. Dig. *^ 1. X J Biciis- F. 7 Co. 17. b. Perfonal efie£ls, of a vegetable nature, are the fruit, or other parts of a plant, or tree, when fe- vered from the body of it, or, the whole plant, or tree itfelf when fevered from the ground ; as apples or pears, which are gathered or fallen, grafs i 2 Bi. Com. which is cut, and trees, or their branches, which f^- ^^- ^^" are felled or lopped \ There Ch. II. IN CHATTELS PERSONAL. T 1 5 There are, alfo, various vegetables, ftyled ia law emblements, which are deemed perfonal, and go to the executor, although they are affixed to the foil. They are fo clalTed when they are raifed annually by labour and manurance, which are con- fiderations of a perfonal nature. The appellation of emblements, properly fpeaking, fignifies the profits of fown land, but, in a larger fenl'e, it ex- tends to roots planted, or other annual artificial profit ; it includes corn growing, hops, faffron, ^,^^^^1^^'''"' hemp, flax, and, as it feems, clover, faint-foin, Teimesdela and every other yearly produdion in which art, and o'ff.^Ex. 59- induflry mufl combine with nature \ ^^ ^^^^'; Dig. Bier.s. On the fame principle melons, cucumbers, ar- g^ L.tt'^'^^-'^ij tichokes, parfnips, carrots, turnips, and the like, belong to the executor ". The executor of tenant "^BurnEccl. for life has alfo been held entitled to hops, ai- Com. laj. though growing on ancient roots, as in the nature l^^^'Abr. 738. of emblements in refpefl of the cultivation, which « liaigr. Co. is neceffary to produce them''. Manure, in a not, I'J'^Cro. heap, before it is fpread on the land, is alfo a per- ^^^sis- fonal chattel P. PiiVin.Abr. 175. Sty. $6. Perfonal. chattels inanimate are houfchold goods, merchandize, money, pi6lures, jewels, garments, in fhort, every thing not included in the former claffes, that can be proper ly putinmotionj and '' - S^- '^^"^• fir 1 I a -^^7. 3«9- Off. transferred irom one place to another ''. Ex. j?. There are, alfo, fome other intereiis, which fall under the defcription of perfonal chattels. Of this fpecies is the teitator's property in the public funds, I 3 ' The ii6 "■ ri Vin. Abr. 17 3- Off. Ex. 5i- 72- « 3 Esc. Abr. 57. Otf. Ex. 56. t Off. Ex. 56. « 4 Bl. Com. 40^. Carth. 396.Ld.Rayin. 147. Salk.667. ^ Stra. II 15. 3266. Doiigl. •70. fed vid. Off. Ex. 5^. * Vid. flat. 5 Eliz. c. 4. I Bl. Com. 4275418. OF -THE EXECUTOR'S INTEREST Book lU The next advowfon, before it becomes void, as I have already ftated, is a chattel real, but, after an avoidance, it is a chattel perfonal ', The executor alfo has an interefi: in the perfon of a debtor, in execution at the tc(lator*s fuit, and, without the executor's affent, the party cannot be difcharged. This intereft is in the nature of a perfonal chattel, inafmuch as the debtor is merely a pledge to fecure the debt '. So, a prifoner taken in war is of the fame fpecies in refpeft of his ran- fom, and, on the captor*s death, fliall go to his executor'. Such, alfo, frems the intereft in ne- gro fervants, purchafed when captives of the na- tions v/ith whom they are at war ; though, accu- rately fpeaking, this property of the purchafer, (if it indeed continue,) confifts rather in their perpe- tual fervice, than in their bodies, or perfons ; but, fuch as it is, it veils equally in the eicecutor ", An executor has no intereft in an apprentice bound to the teftator. The contract is in its na- ture merely perfonaJ", and dies with the mafter.. Yet, although an apprentice be not jftridlly tranf- miliible, if, with the confent of all parties, and his own, he contir;ue with the executor, it is a continuation of the apprenticefliip ^'' ; provided, in the cafe of a trade, it be of the fame fpecies \ y Stat. 8 Ann. j^ji intereft in the teftator's literary property C. 10. 1, -Geo 3. r r 1 C.53. 8Gto.2. may devolve on the executor, purfuant to feveral c! 38. ^i?Gco! ftatutes^ An intereft may,- likewife, veftin him 5- c. 57. by Cn. IT. IN CHATTELS PERSONAL. I 17 by virtue of a patent granted to his teflator, for the invention of a new manufacture uithin the ; -^^t- '^ Jac. I. c. 3. realm ^ It feems, alfo, that a caroome, or a licence by the mayor of London to keep a cart, is a chattel interelt, and belongs to the executor ^ ^ Vcom d^i '' Bieiis. P>. The interefl in all thefe chattels is, at the inftant * ^'"' ^' of the teftators death, vetted in the executor, and from the death of the inteflate, by relation, in the admlniftrator, whether he has reduced them into ^OfF. Ex. loS, ' ^ 109. 3 bAC. his aftual pofleiTion, or not, and, however widely Abr. 57. Roll. difperfed, or remotely fituated, they are regarded, ' ^^ n law, as affets in his hands "", Therefore, where ,, viu.Abi. * he jury found affets in Ireland, the Hating of them ^'^°- m the fpecial verdidl to be in Ireland, was holden ^^^^■'^•^^'■••5^^ ' . . . in not. 6 Mod. furplufage **. So, if an executor live in London, j8i. R. in cvi- and have left goods in Briftol, he hath fuch an im- cj'^BolLrtUt mediate poffeffion of the goods, that he may main- ^\ ^^"^^f- . . . ^'- Spencer, 7 tain trover for them in his own name '. In like Term Rep. manner he fhall be deemed to be in poffeflion of a Rep.%,.'^i^"l iliip at fea. In ihort, in whatever part of the ^■''\- cockeril! ^ ' A et Ux. extx. V. world the teflator hath left effeds, the executor, Kynafton, whether in the manual occupation of them, or not, j^^. ^ '^^' is deemed, to all intents, and purvofes, their pof- d 3 Bac. Ahr. feffor in point of law ^ And, even, if goods be, si-y vin. in fa6t, taken out of his poffeffion, after he has ^ j-.^- p idminiftered, legally he is not diverted of them ; Oir.Ex.Suppi! hey are flill efleemed affets in his hands \ ii'vin°Abr."* . I 4 But, ii8 OF THE EXECUTOR'S INTEREST Book II. But, to give the executor a title, or to confti- tute aflers, the abfolute property of fuch chattels muil have been vefled in the teftator, and, there- fore, if A. take a bond in trufl for B. and die, it f -i B.1C. Abr. fii^ii form no part of the afTets of A. ^ So, if the ^ ' ^ ■^^* oblio-ee affign a bond, and covenant not to revoke the afiiq-nment, the bond Hiall not be included Ulltf^!' among his affets^. Nor fiiall goods, bailed or delivered for a par- ticular purpofe, as, to a carrier to convey to Lon- don, or to an inn-keeper to fecure in his inn, be afiets in the hands of their refpeftive executors. Nor {hall goods pledged or pawned in the hands of the executor of the pawnee, nor goods dif- tralned for rent, or other lawful caufe, be confi- dered as the afiets of the party diftraining. Nor, h a BI. Com. jf ^)^q teflator were outlawed at the time of his iiic.Abv. i8. death, fnall his effects be fo confidered ^. i Com. Dig. - Admon.B. 10. jf ^_ confent to a dlfpofition of the goods of Per two Juft. *^ . .-, Holt, c. J. the inteftate, and afterwards take out admmillra- ^^rs-'cs''' tion, he iliall be bound by the antecedent gift*; Saik. 16T.S.C. 1^ J. if the executor make a fraudulent gift of Carth 103. ' rt ,, • rr 1, s.c. Skin 274. them, they mall contmue aliets \ s. c. 3 Mod. ^ 3 B.-ic. Abr. Such deeds and writings as relate to terms for jsfcTo.Eiiz! years, or other chattels, belong to the executor '. 405. 'sBac.Abr. ^jfg tj-j^ property in the coffin, fhroud, and 65. OfF.Ex.63. ' , r , 1 3 1 1 • • 1. Other apparel of the dead body, remams m the exe- Chattel? Ch. ir. IN CHATTELS PERSONAL. 119 Chattels perfonal, in the hands of an executor, may, in certain cafes, be changed into chattels real, and fo vice verfd ; as, if a debt be due to J. S. as executor, on ilatute, recognizance, or judgment, and he fue out execution, and take the lands of the debtor in extent, the perfonal duty is, in that cafe, converted into a chattel real : On the other hand, if fuch eftate by extent, or a mort- gaged term, devolve on an executor, and the debtor, or mortgagor pay the money due, fuch chattels real are turned into chattels perfonal ". " Bl'coml.i^' CFL\P. ( lio ) CHAP. III. OF THE INTEREST OF THE EXECUTOR OR ADMINISTRATOR, IN SUCH OF THE CHAT^ TELS AS WERE NOT IN THE DECEASED'S POS^ SESSION AT THE TIME OF HIS DEATH. SECT. I. Of his intereji in chofes in aClion» PROCEED now to treat of fuch of the tefla- tor's effects as were not in his polTefiion at the time of his death ; and in this clafs I am firfl: to confider chofes^ or things in aftion, as well thofe where the caufe of adlion accrued in the teflator's life-time, as thofe where it accrued after his death. In regard to the firft, the executor is entitled to the teftator's debts of every defcription, either debts of record, as judgments, ft:atutes,and recognizances; or debts due on fpecial contracts, as for rent ; or on bonds, covenants, and the like, under feal j or debts on fimple contracls, as notes unfealcd, and promifes not in writing, either exprefs or implied ; and all fuch debts, when received by the executor, ' 9^ ^:?- ^^- ftiall be affets in his hands \ ■X. Bac.Abr. 59. Com. Dig. A»imon,i5.i3. ^^ executor Is alfo entitled, purfuant to flat. 4 Ed. 3. c. 7. to a compcnfation in damages for a trefpafs Ch. III. IN CHOSES IN ACTION. trefpafs committed on the teftator's goods in his life-time j and by *he equity of that ftatute, for a converfion of the fame, or for trefpafs with cattle in his clofe *i or for cutting his growing corn, which is a chattel, and carrying it away at the fame time ^ ; and by the fame liberal conftrudtion of the abovamentioned flatute, the executor is alfo enti- tled to a debt accrued to the teflator, under the (lat. of 2 & 3 Ed. 6, c, 13. for not fetting out tithes "^ ; to a quare impedit, for a dillurbance of his patronage ; to ejectment, for ejecting him ^; and, in fhort, to every other injury done to his perfonal eftate previoufly to his death. An executor fhall alfo have damages for the breach of a covenant to do a perfonal thing ^ ; and although the covenant found in the realty, as for not afifuring lands, yet if it be broken in the teila- tor's life-time, the executor fhail be entitled to da- mages 2 ; and the damages in any of thefe cafes, when /recovered, fhall be regarded as aifets. So the executor of the aflignee of a bail-bond fhall recover on that inllrument, inafmuch as it is a veiled interefl \ So an executor is entitled to damages againft a fheriff fgr permitting a party in execution on a judgment recovered by the teltator to efcape-, even although the efcape happened in the teftator's life- time '. An executor may alfo demand damages of ^ fheriff for not returning his writ, and paying money 121 Com. Disr. Admon.I3. 13. Off. Ex. 70. Lat. 168. ^ I Veiitr. 12/. ciSid. 8S.407. I Ventr. 30. Poph, 189. iOff.Ex.66,67. ePoph. 189. f Lat. 16S. 3 Bac.Abr.55, 8 Com. Dig. Admon. B. i j. Com. Dip. Co- venant. B. I, I Vcntr. 176. ?47. 2 Lev. 26, Off. Ex. 65. h Com. Dig-. Admon. B. ij. Fortef. 367. > Com Dig- Admon. B. i 5. Cro. Car. 297. Mod. Ca. \%i. J 22 ^^ *^^^^ EXECUTOR'S INTEREST Book IL k' Com. Dig. nioney levied on -^ fieri facias ^'\ or for a falfe re- Adtr.pn. B. \x. t^j-j^ ftatiniT that he had not levied the whole debt, Cro. Car. jo?. ^ when in fact he had '. So, if the teftator in his » I Sa . It. life.timc were entitled to a writ of error, or audita querela^ or to the antiquated remedies of attaint, ^//^ ceit^ or idcntitate nominis, the executor has a right to recover fuch compenfation as the teftator might have claimed ; and whatever he fo recovers, fhall w •, Bar. Abr. \^q alTcts in his hands ^. So, an executor is entitled 60. Off. Ex, 71. , 1 r T n to replevy goods or the teitator " ; or to recover Off f'^ 66* damages of an officer for removing goods taken in execution before the teftator, who was the land- Adm'on^.^i^. lord, had been paid a year's rent °. And, in ge- siia. 212. neral, an executor has a right to a compenfation, whenever the teftator's perfonal eftate hss been damnified, and the wrong remains unredreiTed at the time of his death. But an executor has no right to an aclion for an i>Lat.i6R,i69. injuj-y done to the perfon of the teftator % nor for 1 And. 243. . . . f. , Jon. 174.. a prejudice to his freehold ; as for felling trees, or cutting the grafs, for the trees, and grafs are parcel n ^ Ventr. 1 ?7. of the fame ''. Off. Ex. 68. An executor Ihall alfo have the benefit of any equitable title of the teftator in refped to perfonal property; and money recovered by the executor by *'3Bac.Abr39. decree in a court of equity, fliall be alTets '. Moore S58. a Chan.Ca.i 52. Brywnl. 76. jj^ ^\\ jj^g above-mentloncd cafes, I fuppofe the caufe of adion to have accrued before the death of the teftator. But where it accrues after that event, the ch. hi. in ciioses in action. the executor is equally entitled to the debt, or da- 123 masres. Therefore, if A. contract to deliver certain goods to B. on a certain day, and they are not de- livered in the life-time of B. but after his death to his executor, he lliall be pofTelfed of them In that character, and they iliall be alTets in his hands j as in cafe the contract had not been performed, da- mages recovered for the non-performance would have been fo confidered '. So if A. covenant with s off. Ex. S3. B. to grant him a leafe of certain land by a certain day, and B. die before the day, and before the grant of the leafe, A. is bound to grant It to the executor of B. and it Ihall be veiled in him as ex- ecutor, and confequentlv be a(Tets \ Or, If A. re- ^ ^^■. E^- 2'* fufe to grant the leafe, he is liable to make a com- au- Lof. NI. • • Pr tfS penfation to the executor of B. in damages, which Ihall alfo be alTets ", « Piowd. 28/j. So alfo a bail-bond may be affigned to a deceafed plaintiff's extrcutor, and he (hall be equally entitled to recover upon it, as if it had been ^iligned to the teflator in his life-time '^. " Fortef. 37«« So, if a defendant In execution at the teflatcr's fuit efcape after the teRator's death, the executor fhall recover damajres for the efcape, and the da- ^ ^. f, ^ Com. Dig. mages fo recovered mall be affets ''. So an execu- Admon. B. 13. tor is entitled to replevy goods taken after the vid. iRofl. ^ I Freem. 47'). lUT'"" ^^''' ^^ executor may alfo be entitled in refpeft of limitation j as, where the teftator devifed the bene- ficial J3I Ch. III. BY LIMITATION. ficlal interefl: of a leafe far twenty-one years to B. his wife, and executrix, for fix years, with a pro- vifo, that if C. his fon, who was then abroad, fhouid come home within that perioJ of time, he ihould have the refidue of the term, but that if he fhouid fail to do fo, then that D. anocher of his fons, ihould have it until the arrival of C. B. the wife entered, D. died within the fix years, at the expiration of which C. was not returned. It was held, that this was not a mere polfibility in. deed, but was coupled with an interefl in the term after the fix years elapfed, and was therefore tranfmif- fible to D.*s executory. So, it is held by fome 1/9. clo-lac*. authorities, that where a term is devifed to A. and 509' the heirs male of his body, and if he die without iffue male to J. S. and J. S. die in the life-time of the firft devifee, yet that his poifibility of having the term under fuch devife (hall belong to his ex- ecutor ^ But by other authorities it has been ad- * nVin.Abr. •jji.i_ TTo ^ ^ i?9. Off. Ex. judged, that the executor or J. o. cannot enter, 241. becaufe he had only a poifibility and no inrereit, and that this cafe is diftinguiihable from that above Hated, inafmuch as in this cafe the whole term was veiled in the firil devifee, whereas in that cafe only » n vin. Abr. a part of it was fo veiled \ l^l'J^ ^f;^ 4 Leon. 246. If a legacy out of the perfonal eilate is be- queathed to A. to be paid zvhen he is of the age of twenty-one years, and he dies before that time, J'^!,^ J,'"th^^[' his executors are entitled to the legacy ; immedi- Com. Dig. ately, if it be payable with intereil; if not, when chan. k. m'. A. would have come of aee\ But if fuch le- ^X''%^'^'" K 3 gacy is9. J «,2 ^^ THE EXECUTOR'S INTEREST Book IE «: Com. Dig. gacy be bequeathed to A. at his ap;e of twenty-one Chancery ;.Y , ■ r \ n ^^ • l r s. 2 Vcntr. merely, or ij he ihall attain the age of twenty-one, ^j^*S"'""^^^' 3nd he die before that period, his executors have ad hcl. 719. _ * ' . T r ^ . .u r ■ r u • i. ^Vcf.44. i Bro, In relpect to thole cales where portions have Ch. Rep. 119. been given out of land, and no time of payment AmhL"6"?2'3o exprefled, it feems difficult to reconcile the deter- ^66./;7 5.iBi-o, minations. According to one clals, their mterelt is in not. 19.. Sc veiled immediately, and tranfmiffible ; according i,'y"°^' ^^•^' ^"' to another, fuch portions fliall not veil, if the chil- i^p.wm-.ug. dren die before they want them K 17i.aP.Wms. ^ G\%. not. I. Free. Ch. 195. But if lands be devifed for payment of portions, iilro.ch.Rep* and one of the children entitled to a portion die 124- in not. r • ■ ^' , 1 I 1 r 111 39?.?indvid. atter it is become due, though before the lands are 2Atk.j33.vid. fold, the perfonal reprefentative of fuch child will Abl-.^ ?6y,'"'64. clearly be entitled to the money ^, ^ Vern. 3^6. 347.2,Vern.35. An executor may alfo claim by election; as knVin.Abr. where the teftator at the time of his death was en- 1^3. i Vem. titled out of feveral chattels to take his choice of . u- r rr 1- rr 1 Com. Dig. one or more to his own uie. Ir nothing pailes to Eiedtion B. the grantee of a chattel before his eledion, it ought lSu?.'^* to be made in his lifetime ^ As if A. give to B, m , R„ii. ^br« fuch of his horfes as B. and C. fhall chufe, the 7^^* election ought to be made in the lifetime of B, "* K 4 ■ But - ^ . OF EXECUTOR'S INTEREST. Book II. But where an interefl: veds immediately by the grant, the election may be made by the executor as " ^^-i?'- Co. ^y^u ^g i^y |.|-^£ p^j.^y hiinfelf ". As, if a fine be le- Lilt. 145. . vied of a hundred acres, and the conufee grant fifty to the conufor for a term of years, his execu- tor may chufe which fifty he will have. So, if A. gives one of his horfes to B. and ()., B. may ele£t after the death of C. which he will take, for an in- • T Tlol!. Abr. tereft vefled in them' immediately by the gift °. So, if the election determine only the manner or degree, in which the thing fhall be taken, the exe- cutor, as well as the grantee himfelf, m.ay make it; for in fuch cafe, alfo, there is an immediate inte- U^tT-^^o' ^^^ ^' -^^^ ^^ ^ ^^^^^ ^^ granted to A. for ten, or twenty years, as he fiiall eleft, the executor is en- titled to the eledion. CHAP, ( 135 ) CHAP. IV. OF CHATTEL INTERESTS WHICH DO NOT VEST JN THE EXECUTOR, CTR ADMINISTRATOR. SECT. I. Of chattels real which go to the heir, PROCEED now to enquire under what fpecial circumftances chattel interells ihall go to the heir of the lad proprietor. The principle, which generally pervades the cafes, in which the heir, as diftinguiflied from the executor, fliall be entitled to chattels, is this : that they are fo annexed to, and confolidated with, the inheritance, that they ihall accompany it wherever * ^ Bl. com. it veils \ ' ^'^* "'^• And, firfl, in regard to chattels real : If A. feifed in fee, grant an eftate tail, or a leafe for life, or years, referving rent, fuch rent as accrues after his death, being incident to the reverfion, fhall go to his heir, and not to his executors ", \ 3 Bac. Abr. ° ^ '62. Harg, Co. although they are exprefsly named in the cove- Litt.47. nant '. If A. feifed in fee, make a leafe, referv- « Harg. co. ing rent to him, his executors and affigns, and cS cir"°o^ die, the rent is determined, for the executors are not 136 OF CHATTELS REAL Book U, not entitled to It, inafmuch as they are ftrangers to the reverfion, which is an inheritance, nor fliall «i Hargr. Co. it go to the heir becaufe he is not named ^ But, Roll Al-ir \^o. if A. feifed in fee, make a leafe for years, referv- I Vcntr. 161. jjig rent to him, and his alugns, or to him, his executors and afligns, during the term, although *SeeNoy96. there be dccifions to the contrary % the words, 1aC0.36.Crc. ^ 5, n 11 ■ r rr • 1 Eliz. 217. 3 " durmg the term, mail be iulncient to carry the hi"not^^' ^^' ^^^^ ^o ^he heir. Where the rent is lb referved, ■ the intention of the parties is clearly expreffed, f Hargr. Co.' that the IclTee is to pay the fame during the conti- Lin.47- not. 8. p , , . . , it>ki. 2oi. :, nuance or the demile'. Y.ac.Ahr. 6i. a S'TUiid. 36^. J Vefitr. 14S. In cafe the leafe referve rent at Michaelmas, or 113. 2 Lev. 13. ten days after ; if the rent be not paid at Michael- mas, and before the ten days are expired, the lefTor dies, his heir, and not his executor, (liall re- ceive the rent ; for, although it were in the elec- tion of the leffce to pay it at Michaelmas, yet the ten days after are the true legal term, and, confe- quently, the rent was not legally due before that g 3 Bac. Abr. period of time, and therefore is no chattel s. So, 63. 10 Co. 127- -r ^i^g leffor die on the day on which the rent is payable, after fun-fet, and before midnight, the heir, and not the executor, may demand the rent, for it is not, in ftriftnefs, due till the lafi: minute of the natural day, although it may be more con- h 3 Bac. Abr. . . , r k o 1 63. Hargr. Co. venient to pay it berore^ 'oo, where rent is ^'^i Sau'nd."^' granted to A. and his heirs, for life, and the lives 287 saik.578. of B. & C. the heir fhall have the rent as a party i II Vin. Abr. fpeciallv nominated, and as heir by defcent'. So, 16S. Cro Jao. \ , ^ r . c • *U a8i. vid. a Bi. although, lor the arrears or a mmme pcena^ the Com.2j9. . grantee Ch. IV. WHICH GO TO THE HEIR. ^ ^ „ grantee himfelf, and, therefore, his executors, , . ,, . , . k ,x V;n. Abr. may have an aaion or debt, yet the ?io?mrie pixncs^ 1:8. i;ir/r. as an incident to the rent, iliall defcend to the co,x.iti. 162. heir''. So, a term for years, in truft to pay j ^ ^j^ ^i^^. debts, and afterwards to attend the inheritance, 172- * Vern. n II 1 1 • 1 1 I ''^j. Coin. ihall go to the heir, and not to the executor '. Dig. Biens. B. So, if a term be raifed for a certain purpofe, and *^^^-*^'^-'5^' that purpofe be anfvvered, the heir fhall have the mnvin. Abr. beneficial intereft in the fame, whether it be fo ^^^- ^ Vemr. expreiTed or not" ; but he Ihall take it as a term, „ ,, vin Ab and, confequently, as a chattel". So, an annuity, 171- aVem. althoufih a chattel intereil, is defcendible to the '^^' ^ ' ^ ° II Vin. Abr. *\eir . 1,3. Arg, 10 Mod. 237 Vide alio i r But, if a debt be owing to A. and, in fatisfac- Vin. Abr. 146. tion of it, the debtor grants him an annuity, Litt^'374. b!' charged on lands for his own life, and redeemable, fuch annuity fliall be part of A/s perfonal eflate \ Bienrcf '^* ^ut a term conveyed, as a fee, by leafe and re- ^ Vcf. 4.)^. leafe, to J. S. and his heirs, by the word *' grant.'* although it cannot operate as a fee to veft in the heirs of J. S. yet fliall go to his perfonal reprefen- tative''. So, if a leffee for twenty years, make a \ll <^\^^^c. '"' leafe for ten years, referving a rent during the lall P^^*^- 4'^o- mentioned term, to him and his heirs, it Ihall be void as to his heir, and fhall belong to his execu- tors ^ So, if A. poflelTed of a term for years, ' * v^^^-^^'S' devife It to B. for life, remainder to the heirs of B., it feems that, on B.'s death, it Ihall go to his executor, and not to his heir % So, if A. ,5V,p"wms! feifed in fee, make a leafe for years, referving ^9- rent, and devife the rent to B., B.'s executor, and not j^g OF CHATTELS REAL Book H. not his heir, fliall be entitled to the rent, becaufe riiVin.Abr. B. had DO more than a chattel interefl; '. So, 145. Dyer 5. b. ^^erc a copvhold eftate was rrrantcd to A. for the not. I ibia. i^-' . , Cro. Eli/.. 6j7. lives of A. B. Sc C, and A. died inteftate, it was sl\'. ""^ held that his adminlflrator fhould have the eftate « II vin. Abr. during the lives of" B. & C. ". J 51. in not. So, a leafe granted by a copyholder for one year only^ fhall be no forfeiture, for it is warranted by the general cuftoni of the realm, and fhall be '^ 11 Vin, Abr. accounted aflets in the hands of the executor of Harg^^c'o.'^^* the leflee^^ Litt.59. not. 4. 4L0. 26. 9 Co. 75. b. w. Jo. If A. grant a rent in fee to T. S. with a provifo, a4.9-Litt.Rep. , .^.\ . , -^ ■ u 233. that it It be m arrear, the grantee may enter the lands, and retain, till he be fatisfied ; the power of entry is an inheritance, and defcends to the heir : but when entry is made, the party has merely a ^ n Vin. Abr. chattel intereft in the lands, which, with the arrears, ^ym^7;?'' fliall go to his executor \ 15S. I Sid. 223. 362. 34i. j£ jl^g. gj.j^ntee of a rent In fee take a leafe for years of the lands out of which the rent iffues, and die, his executor Ihall have the land, and the heir * II Vin, Abr. is precluded from the rent '. 147. Litt. Rep. '^ So, a bond given by one parcener to pay the other, her executors or adminiftrators, an annual fum during the life of J. S. for owelty of partition, or as a compenfation for her (hare's being of the lefs value, fhall go to the executor and not to the heir. Becaufe, in fuch cafe there is no grant of a rent, but Ch. IV. WHICH GO TO THE HEIR. but a mere contra£t, and therefore the obh'gor had it in her eleftion, either to pay the fame, or to for- feit her bond ". And where articles of agreement " " ^''"- Abr. were executed for the purchafe of land, and fix 133. hundred pounds paid, but intereft paid ^ for the money by the vendor, and rent for the premiles by the vendee : it was held, that on the latter's dying before the conveyance, his executor was entitled to the fix hundred pounds, as part of his perfonal w ,,vin.Abr. eflate w. ''^9- * Chan. KCp. 13S. On the other hand, where A. died inteflate, leav- ing two daughters, and after his deceafe four hun- dred pounds were found hidden; which the widow laid out in land, and fettled it to herfelf for life, re- mainder to her two daughters in tail, remainder to her own right heirs: The • adminiftrators of the daughters claimed from the heir at law of thewidow, two thirds as perfonal eftate, and witneffesproved, that the fame four hundred pounds were applied in the purchafe: although the Mafler of the Rolls de- creed for the adminiftrators; yet on appeal the Lord Keeper reverfed the decree on the ground, that money had no ear-niark, and could not be followed when invefled in a purchafe ". But where an exe- j.^_ 2 VenJ * cutor in truft for an infant of a leafe for ninety- ^40. nine years determinable on three lives, on the lord's refufal to renew but for lives abfolutely, complied with his requifition, and changed the years into lives ; on the infant's dyin? under ,. ,,, , nri- 1^" Vin. Abr. twenty-one, this was held to be a truit tor nis ad- 155. jp.Wms, miniftrator, and not for his heir y. Bo where ^^' truliees I40 OF CHATTELS REAL Book. II, « 11 Vin. Abr, 151. 2 Chan. Kep. 377. * 11 Vin. A.br. 151. aVern. 192. a Freem. 109. 1 Vern. 435- b Powell on Mortgages, 2d vol. 68z— 69S. trudees purchafed lands in fee fimple with the in* fant*s money, and the Infant died in his minority, it was held that the land Ihould be accounted part of the perfonal eftate, and (hould go to his admlni^ ftrator ^ So, where committees of a lunatic in- vefled part of his perfonal eftate In the purchafe of lands in fee, the court declared it fliould be deemed perfonal property, decreed an account, the land to be fold, and the money to be divided among the next of kin. For it fhall not be in the power of a guardian or trudee to change the nature of the eftate. But it appears, that if in fuch cafe the truftees obtain a decree in equity for the purchafe, the court will maintain its decree, and then the eftate fhall go to the heir, and not return to the perfonal fund, if there be no ground to impeach the truftees of fraud \ With refpefl: to mortgages, Inafmuch as courts of equity confider fuch contracts as merely perfonal, the mortgage money Is In general held to be part of the perfonal eftate, and to belong to the execu- tor of the mortgagee. But, under fpecial circum- ftances, it (hall be regarded in the light of real pro- perty, and fliall go to the heir ^. At law, if the condition or defeazance of a mort- gage of Inheritance make no mention ehher of heirs, or executors, to whom the money fhall be paid. In that cafe the money ought to go to the executors, Inafmuch as It was originally derived out of the perfonal eftate, and therefore in natural juftice Ch. IV. WHICH GO TO THE HEI-R. juftice ought to return thither. If the defeazance appoint the money to be paid either to the heir, or executors, and the mortgagor pay the money at or before the day, he may ele6l to pay it either to the heir, or the executor. If the day of payment be pad, and the mortgage forfeited, all election is gone ; for at law there is no redemption. There can be a redemption only in equity, and equity will not revive the election ; but confiders the cafe the fame as if neither heir nor executor had been named. And as in that cafe the law will give it to the executor ; equity, which ought to follow the law, will decree it to the fame perfon. Hence, therefore, when the fecurity defcends to the heir of the mortgagee attended with an equity of redemp- tion, as foon as the mortgagor pays the money the land (hall belong to him, and the money only to the mortgagee, which is merely perfonal, and fo accrues to his executor. Nor will it appear hard, that the heir fliould be decreed to make a re-con- veyance without having the money which comes in lieu of the land, if it be confidered, that the land was no more than a fecurity, and that after pay- ment of the money a truft exifts for the mortgagor, which the heir of the mortgagee is bound to exe- cute. Nor is It material that the executor of the mort- gagee has aifets vv^ithout fuch money. Afiets Ihall not be the meafure of juftice between the parties. The heir either ought to have the money if there were no alTets, or ought not to have it althougli there 141 . , ^ OF CHATTELS REaI Book 11. there were. Nor is the principle varied by there being no perfonal covenant on the part of the mortgagor to pay the money : For although the claim of the mortgagee's executor vi^ould be ftrengthened by fuch a covenant, yet it fhall avail ciiVin. Abr. him without it ^ And although a mortgage m Ifvlcm^lt fee be conditioned, that the mortgagor Ihall pay the money to the mortgagee, his Tieirs, executors, adminiflrators, or affigns, and the mortgagee die before the forfeiture of the mortgage, whereby the mortgagor has his eleclion at law to pay the money to either, yet in equity it fhall belong to the ex- ecutor ; for in mortgages in fee, the mortgagee's izYev.ir.351. heirs are truftees for his perfonal reprefentatives % Barnard. 50. , n j j • • 1 In Ihort, mortgages are deemed m equity to be mere chattel interelfs, and to belong to the execu- tor of the mortgagee, unlefs his- intention to the contrary be declared in exprefs terms by the con- Suppi'.^.?." tract % or by his will, or be evidently implied by Hargr. Co. j^jg condud. As, if he foreclofe, or procure a re- leafe of the equity o'f redemption, and obtain adual poflefTion of the premifes. So, where a mortgage in fee defcended on the heir at law of the mortgagee, and the perfonal reprefeniative of the mortgagee ten years after the money had been paid to fuch heir, filed a bill for the fame, it v/as decreed to f aVentr. 34?- him, but without interefl^ Nor fhall a fpecific legacy to the executor bar him of m.oney due on mortgage; as, v\^here a mort- gagee in fee, after bequeathing feveral legacies, gave one hundred pounds to his executor, exprefsly I diredingj Ch.iv. wmcH go to the H£iR. 1^2 direaing, that his legacy fliould not be paid till debts and other expences were difcharged, yet the court decreed in his favour agamlt the heir =♦ oo, j veru. 412. if the mortgagor fliall fail to redeem, the heir of the mortgagee flvall convey the land to the execu- tor. As, where the mortgage was forfeited, though the heir of the mortgagee were in poiTeiTion by defcent, and there were no deficiency of aflfets, on the mortgagor's not offering to redeem, the heir of the mortgagee was decreed to make fuch convey- ance : for fince the mone}-, as part of the perfonal eftate, would have gone to the executor, he is en- titled to the land as a recompence". So, where a ^J,^^!"^"'^^' copyhold was mortgaged by furrender to A. who was admitted tenant, and died, leaving B. his fon, and heir, and executor : B. entered, and was alfo admitted, and afterwards by his will, but without any furrender to the ufe of the fame, devifed it to C. who, on B,.'s death, became the perfonal repre- fentative of A. and exhibited his bill againfl Do who was heir at law of A. and B. and who claimed this as a real eftate, the forfeiture having been fo long incurred, tv/o defcents having been caff, more being due on the eflate than its value, the mort- gagor having by his anfwer refufed to redeem, and fubmitted to be foreclofed, and the devife by B. to the plaintiff being void at law for want of a fur- render to the ufe of the will : it was decreed to C. as the perfonal reprefentative of A. inafmuch as there was no foreclofure, nor releafe of the equity of redemption in the life-time of the mortgagee, 1 Eq.^Ca". Ibt". and, on appeal, the decree was affirmed '. ^^.-V ^''^^' ^"^* ^* ' a Vern. 103. L If ^ , , OF CHATTELS REAL Book II. 144 If on a mortgage being forfeited, the mortgagor releafes to the heir of the mortgagee in fee, yet the executor of the mortgagee fliall have the benefit of the eftate, although there be no debts. So, in the cafe of foreclofure of a mortgage, or that the mort- gage be of fo ancient a date, as in the ordinary courfe of the court it is not redeemable, it fhail belong to the perfonal reprefentative of the mort- gagee : for unlefs the mortgagee were adually in poffeffion, it fhall be confidered as perfonal fc sVern.193. eftate ^ So, where a wife had a mortgage in fee of a copyliold, and died leaving ilTue, and the ififue was admitted, and died, and then the huf- band, as adminlftrator to his wife, claimed the copyhold as a mortgage, and confequently part of his wife's perfonal eftate; it was decreed to him againft the heir at law, although the latter had i I Vci-n 170. been admitted '. So, a mortgage of an inheritance to a citizen of London hath been held to be part of his perfonal eftate, and divifible according to the « I Chan. Ca. p,,aom'" 285. iVeni.4. CUlLOm . But if the poflelTor of the eftate conceive him- felf to hold it in fee, his intereft will not be conft- dered as perfonal againft his evident intention ; as, if an eftate in mortgage be fold by the mortgagee abfolutely and fraudulently to a third perfon, the purchafe money, on repayment by the vendor after the death of the vendee, will go to his heir; for the intention of the vendee was to alter the nature of his property, and to inveft the money in the pur- chase of landj and therefore the court will ccnfider it Ch. iV. WrilCH GO TO THE KEIR. j . - it as real property ". So, if it appears to be the in- niVern.271, tention of the mortgages that the mortgage fliould pafs by devife as a real eftate, the executor vAU not be entitled". As, where the teftator had feveral * ^^^'^ ^' mortgages, and among the reft a mortgage in fee of lands in F. and devifed his mortgages to his two daughters, their executors, and adminiflrators, and his lands in F. on which he had entered on for- feiture of the mortgage to them, and their heirs : M. one of the daughters died without iflbcj H. her hufband and adminiilrator claimed a moiety of the lands in F. as a mortgage not foreclofed, nor of ■which the eqliity of redemption was releafed, and therefore part of his wife's perfonal eftate ; but it Was held, that although it were a mortgage, as be- tween a mortgagor and mortgagee, and therefore perfonalty j yet the teftator's intention was, that ic fhould pafs to his daughters as a real eftate to them and their heirs, and that, inafmuch as M. was dead without ifiue, it defcended to her lifters, as her heirs at law, and that H. was entitled to no part of the fame in the nature of perfonal eftate p. But where p zVem. s2ii JTJ ia^r<.j Gilb. Rep. in a mortgage was deviled as real eitate alter a decree chan. a Chan, of foreclofure «//z, that is, unlefs caufe were ihewn ^^^^.265, to the contrary, it was held to be perfonal eftate for payment of debts, if the aifets were infufficient, although confidered as real eftate between devifor and devifee'^. A mortgage will not pafs as land ^Mofely, 364*; under a general defcription applicable to it in point of locahty, if, from other circumftances, it be evi- dent that the owner regarded it as perfonal pro- i-perty'. ''^ L z Where 2 Etirr. 969J 146 OF CHATTELS REAL Borrn IL Where money fecured by mortgage, to which the executor was entitled at law, was articled to be laid out in land, and fettled on the iflue of the mar- riage, on fpecial verdict it was adjudged to be Wmi IF7'. bound by the articles '. If the parfon of a church be feifed of the ad- vowfon in fee, and die, in fuch cafe the heir and not the executor fhall prefent ; becaufe at the fame time the avoidano*! vefts in the executor, the inhe- ritance defcends to the heir ; and where two titles concur in an inflant of time, the elder fhall be t II Vin. Abr. preferred \ But if A. be feifed of an advowfon ia Abr.6i.^Lev. grofs, or in fee, appendant to a manor, and an 47.3SalkzSo. avoidance happen in his life-time, his executor and not his heir fhall prefent, inafmuch as it was a " " yi"-,^^'"- chattel veiled, and fevered from the manor ". But 14 c. Fitzn. p . , . , . N. B. 33. if the next prefentation be granted to A. his heirs, and affigns, it is clearly a mere chattel, notwith- ftanding the w^ord " heirs :" It is but one turn, and where the thing is a chattel, the word " heirs" w II vjn. Abr. cannot make it an inheritance "•". So, if a man 173. Br. Chat- r . r t_ 1- 1- teis, pi. 6. grant the tv/o next preientations or a church, they are chattels, and, if the grantee dies, the executor ^ II Yin Abr. {IyjH have them, and not the heir ^ 173. 'Br. Chat- telb, pi. ao. If an inheritor of tithes die after the tithes are fet out, they fhall go to his executor, and not to 7 Com. Dig Bicns, A. a. Off. Ex. 60. 3 Bac. Abr. 64 Bicns, A. a. his hcir y. off. Ex. 60, The interefl denominated the year, day, and * Vid. fupr. ■walle, which has been already explained % is but a 9 chattel J Ch. IV. WHICH GO TO THE HEIR. j . « chattel ; and although granted by the crown to A. '~' '-' ' z II Vm. Abr. and his heirs, fhall go to his executors ^. 175. Off. Ex. 54- Charters and deeds, court rolls, and other evi- dences of the land, as well as the chefts in which they are ufually kept, fhall pafs with the land to the heir, and fliall not go to the executor'. So, 3 ^ac. abr, 6j. where a bill was filed in chancery for an antique horn, with an ancient infcription, on the ground that it had immemorialiy gone with the plaintiff's eftate, and been delivered to his anceflors by which to hold the land, the court was of opinion, that if the land were of the tenure called cornage, the heir had a title to this monument of antiquity at law ^ J^^ j veni!''^' So, if land be fold by A. on condition, that if the a73-Harg.C(.). . , , 1- • 1 J 1 Litt. 107. purchafe money be not paid by a limitea day, then that he fliall re-enter; and A. die, here, although there be a debt due to the executor, and no land defcended to the heir of A. yet the heir fhall have the deeds, inafmuch as upon him the condition ^ defcended ^ But if A. deliver a charter to B. to ' ^' ^* redeliver to him, and his heirs having no title to the land, his executor, and not his heir, fhall have this charter, becaufe it was only a chattel without the land*^. J nVin Abr. 14';. Fitzh. Detinue, pi. 7. So, if the writings of an eflate are pawned or pledged for money lent, they are confidered as chattels in the hands of the creditor, and in cafe of his deceafe, they will go to his perfonal reprefen- ^ tative as the party entitled to the benefit accruing 65. Noy,Max. from the loan \ ^°' L3 SECT. 48 OF CHATTELS PERSONAL Book IL SECT. IL Of chattels perfonal which go to the heir: and herein of heir -looms. WITH refpecl to chattels perfonal, and ani- . ' mate, the heir has a qualified pofTeirory property, in deer in a park, hares, or rabbits in a warren, doves in a dove-houl'e, pheafants, and partridges in a mew, fwans, though unmarked, in a private moat or pond, or kept in water within a manor, % Hargr. Co. °^ ^'^ large, if marked, and in bees in a hive, or, jlitt. ?. Com. as it has been held by fome authorities, thouyjh not 3R0II. Abr. m a hive, raiione foli^ m reipect or nis ownerlnip |^'.?vin.''* in the foil. He is, alfo, entitled to fifli in a pri- Abr. ler. 2. yj^fg pond or pifcavy. Thefe various animals fhall Burnjiut. 369. . . . 1 • • • 7C0. i<;b. allgo with the inheritance, for without them It IS lu- iBiXom.'iz?! complete'. And fuch, we may remember, is thp property^that fliall veft in the executor, if the tef. b Hargr. Co. tator had a leafe for years in the land ^', Litt, S.not. 10. Vid. fupr. 107. ^-3. With regard to chattels perfonal, and vegetable, not only timber trees, as oak, beech, chefnut* vvalnut, afli, elm, cedar, fir, afp^ lime, fycamore, birch, poplar, alder, larch, maple, and horn- beam, but alfo tre6s of every other defcription, belong to the foil, and, unlefs fevered during th^ c Com. BIgo life of the anceftor, are the property of his heir''. aBac.Abr. 64. So, Hkewife, are all fpecies of fruits, if hanging Off. Ex. 59. Q^ jhg |.j.gg g^j. j-hg tjmg of jjjs anceflor's death. Graf§^ Ch. IV. WHICH GO TO THE HEIR. j . g Grafs, alfo growing, though ready to be mown for hay, fhall defcend, v/ith the land, to the heir, for thefe are either natural or permanent profits of the earth. He is alfo entitled to fuch hedges and ^ Bac.Abr?!^. bufhes as are (landing at that time •*. But, as I have already ftated, corn, which is raifed by_yearIy_cultivation, (]Tall_go_to the _ex£- cutor, to co mpenfate for the expence and labour of tilling, jTian uring, an d fowing, th e lands, and for the'^couragement of hufbandry, which is of ^ jj.^^," AbV.^i. io"public a concern ". ~ ' The fame law, on a fimilar principle, extends to other emblements, as hops, fafiron, hemp, and *" ^^- f ,^- 59- , ... , ^ ' » r^ 3Bac.Abr.64. the like ^ It has been afferted by a learned writer s, that s Off. Ex. 6j, roots of all kinds, fuch as parfnips, carrots, tur- Glib.L.^of* nips, and fkirrets, fhall go to tlte heir, fmce they ^^' *'*9- cannot be taken without digging and breaking the earth, which mufl of necelTity be a detriment to the inheritance. It feems, however, perfedly clear, that thefe articles, as requiring an annual cultivation, fall within the like reafoning, which the law has adopted in regard to corn, and, con- ^ Hargr. Co. fequeritly, fliall belong to the executor^, aBi.com.1a3. But things which produce no annual profit are not comprehended under the name of emblements ; therefore, although the teftator himfelf hath fown the land with acorns, or planted it with oaks, ^ L 4 alders. ^ ^^ OF CHATTELS PERSONAL Book IT. 1 50 alders, elms, or other trees, they fhall not be s 1 Bl. Com. clafled as emblements, but Hiall belong to the heir". 123. Com.Dig. o T I n. • 11 1 j BicHs. G. I. So, it the teltator unproved the natural produce, Liu^'V^b. either by trenching, or by fovving hay- feed, fuch increafe fhall go to the heir ; for the executors have no property in the natural produce, and, in fuch inflances, that which was artificial cannot be I*: Com. Dig. diflinguifhed from it ^. Wall fruit alfo, though GiibrL.<"fEv. greatly improved by culture, feems to fall within ^^'utt^^'e ^^^ fame principle, and to be the property of the heir. But the executor, we have feen, is entitled to hops, though growing on ancient roots, for i.kf'^^*- b° ^^^y ^^^ produced by manurance and induftry K Cro. Car. 515. Although timber trees originally belong to the foil, yet, if A. feifed in fee, I'ell the timber trees on his land to B. and B. die before they are felled, m 3 B.ic Abr. they fliall belong to his executor "'. So, if a man 60. '^ ^^' fell his land, referving the timber trees, they re- main in him by particular contract, as chattels didinct from the foil, and fliail i2;o to his executor. For, in both thefe cafes, in conflruftion of law, they are abftrafted from the earth, although they * 3 B^c. Abr, ^Ye not aduallv fevered by the axe ", «54. Off. Ex, ^ ^ to. But, if a tenant in tail fell the timber trees on his foil, fuch faU will not be eifeQ:ual without docking the intail, uniefs they were actually felled in the life-time of fuch tenant, otherwife they will o sBac.Abr. defcend, with the land, to the iiTue". So, if A. 64. Hob. i73.,p,iriT • 1 ?j Co. JO. kaie lands for life or years, e:j^cepting the trees, they Ch. IV. WHICH GO TO THE HEIR. 151 they continue parcel of the inheritance, fo long as they are annexed to the land, and defcend with it to the heir. So, if a feoffment be made excepting the trees, and the feoffee afterwards buy them, they are re-annexed to, and become part of, the in- heritance p. So, where a leffce for years purchafed BiJp""^^^'^* trees growing^ on land, and had liberty to cut them n Co. 50. . , . . , 11 r . L 1 , 4 Co. 63.5. withm eighty years, and he afterwards bought the inheritance of the land, and died ; it was held, that the executor fhould not have the trees, forj although they were once chattels, yet, by the pur- chafe of the inheritance, they were re-united to ^^g.^ qw ■^^''' the land ^. Such perfonal chattels inanimate, as go to the heir with the inheritance, and not to the executor, are, for the mod part, denominated heir-looms. The termination loom, in the Saxon language, fignifies a limb, or member"; confequently heir- looms denote limbs or members of the inheritance. They are fuch things as cannot be taken away without damaging or difmembering the freehold. "Whatever, therefore, is ftrongly affixed to the in- heritance, and cannot be fevered from it without violence or damage, qiicd ah czdlhus non facile re- vellitur, is a member of the fame, and fliall pafs to the heir, as chimney-pieces, pumps, tables, and benches, which have been long fixed '. The law ' * E'- com, is the fame in regard to coppers, leads, pairs, la Mud. 520. ports, rails, window-lhutters, windows, whether of glafs or o.therwife, wainfcots, doors, locks, keys, mill-ftones fixed to a mill, anvils, and the like. 152 OF HEIR LOOMS. Book II. like. I'hey are annexed to the freehold, and are ! 4 Burn Feci, j^ y ^^ ^^^^ ^ ^f j^ ^ L. 256. 3 B.ic. r Abr. 63 Off. 63,64! Although pictures and looking-glalTes generally go to the executor, as perfonal chattels, yet, it has been held, that if they are put up inftead of wainfcot, they ihall belong to the heir. He has * a\ern. jc8. ^ j-jght to the houfe entire, and undefaced \ But, at fo remote a period as that of Henry the feventh, it was adjudged, that if the leiiee annexes any chattel to the houfe for the purpofes of his trade, he may difunite it during the continuance of his intereft, if he can do fo without prejudice to the iTeehold. And, therefore, that if fuch leflee be a dyer, and ered: a furnace in the middle of the floor, not affixed to any wall, he, and by confe- quence his executor, may take it down, during the term, if it can be removed without injury to the inheritance ; that, while the term continues, he is the owner both of the floor and of the fur- nace, but that, if it be not fevered while his in- tereft fubfifts, it goes to the leflbr, or his heirs, « 3Bac.Abr. inafmuch as the leflee is not mafter of both the 63. Keihv. 88. -, , . o r i Ow. 70, 71. lubjects 01 alteration ". Off. Ex. 60, 61. lAtk 477. Salk. 368. jn m.odern times the doctrine of annexation has, on principles of public policy, been gradually relaxing ; therefore, if things of this fpecics can _ ., be removed without injury to the fabric of the " 3 Bac. Abr. -^ '' 63. in not. houfe, or the foil of the freehold, they ftiall, in a^Str. 1V4V. general, be the property of the executor '•'•'. Thus, inodern Ch. IV. OF HEIR LOOMS. modern tables, although faftened to the floor, grates, iron ovens, jacks, clock cafes, in whatever mode annexed to the freehold, have by more recent cafes been held to belong to the executor '^. So, alfo have hangings, tapeftry, beds faftened to the cieling, and iron backs to chimnies K So, likevv^ife in favour of trade, brewing vefTels, vats for dyers, and foap-boilers coppers. So alfo furnaces, though fixed to the freehold, and purchafed with the houfe "'. It has alfo been ruled, that a cyd' r mill creeled on the land fliall go to the executor and not to the heir. And in a cafe where the litigating parties were the executor of the tenant for Hfe, and the remainder-man, the Lord Chancellor feemed to be of opinion, that a fire-engine fet up for the be- nefit of a colliery, as between heir and executor, might in fome inftances be confidered as perfonal property ". Such latitude encourages improve- ments, and is beneficial to trade. But if the fub- jed be not capable of removal without injury to the freehold ; as, if a furnace is fo affixed to the wall of a houfe as to be elfential to its fupport, it fliall not be taken away by the executor °, The ancient jewels of the crown are alfo held to be heir-looms, for they are neceffary to maintain the ftate, and to fupport the dignity of the exifting fovereign ^ So, alfo the collar of S, S, is an heir-loom, and Ih^U go to th^ heir "^^ ^52 k 4 Burn Eccl. L. 257. ' .1. Burn Eccl. L n6. 1^9- T. 0Ni.Pr.34. a St. 1 141. 1 Atk. 477. <" Sail-. 368. L.ofNi.Pr.34. I Atk. 477. j! Att. 14. 16. It Vin. Abr. 167. 172. I Freem. 249. Hargr. Co. Litt.53.not5. n Lord Harol- vvicke in Law- ton V L.iwton. 3 Atk. 15. ° Off. Ex 61. 4 BurnEccL L.zfD. II Vm. Abr. 166. p 2 Bl. Com. 4^8. Hargr. Co.Litt. 18. b. 1 II Vin. Abr. 167. Ovf. 124. There ^54 OF CHATTELS Book II. There are alfo other perfonal chattels, which dc- fcend to the heir in the nature of heir-looms ; as ancient portraits of former owners of the manfion, though not fallened to the walls, a monument or tombffcone in a church, or the coat-armour of his anceftor there hung up, with the pennons, and '^ ^n ^^^6 ^^^^^ enfigns of honour fuited to his degree \ Litt. i8. b. Pews, alfo, in a church, may immemorially defcend from the anceftor to the heir, as appurtenant to his s z m. Com. houfe % 429. iz Co. J05. By the fpecial cuftom of fome places, carriages, and alfo various articles . of houlehold furniture, and implements, may be heir-looms. But fuch 1 2 Bl. Com. cuftom muft be ftriclly proved '. «z8.Harg. Co. •' '^ Litt. iS.'b. , On the other hand, a granary built on pillars in Hampfhire, is, by cuftom, a chattel, and belongs to "iiVin.Abr. the executor ". 154. The heir is likewife entitled to other perfonal chattels inanimate, to which this appellation of heir-looms does not belong. An annuity, although w Vid. fupr. ^^i„ ^ chattel-intereft, is, as we have feen "', de- 137. -' ^ ,.. -. fcendible to the heir "". So, a o;rant from the crown * iiVin Abe ■' o 153. argdo of one thoufand pounds per aniium, out of the four vid. aifo^"^''* and a half per cent. Barbadoes duty, with collate- ^6^1!'^^^' ^"^ fecurity for payment out of other revenue, al- Dr. & Stud, though a mere perfonal chattel, having no relation to lands or tenements, nor partaking of the nature Biens a'-^' ^^ ^ x^ui^ was adjudged to the heir ''. a Vcf. J 70, So, Ch. IV. WHICH GO IN SUCCESSION. jrr So, where a copyhold tenement was burnt down, and money, colleded on briefs for rebuilding ic, was lodged in the hands of a guardian of the tenant in tail who died under age; it was held that the money fliould go to his heir, both becaufe of the intail, and becaufe it was copyhold ; but that allow- ance fliould be made to his perfonal reprefentative for the amount of the intereft of the money from the time it was fo lodged to the death of the in- ° 2; Com. Dig. fant '•. _ Biens (B). 1 Vcf. 4.60. If A. recover land and damages, or a deed rela- tive to land and damages, and die before execu- tion ; his heir fhall have execution for the land or deed, and the executor for the damages '. 145.159.Cro.' Car. 227, Off» Ex. 93. SECT. III. Of chattels which go in fiicccjjton* CHATTELS given to a corporation aggregafe, as the dean and chapter of a cathedral church, the mayor and commonalty of a city, the head and fel- lows of a college, fhall go in fucceflion: but in cafe of a fole corporation, whether created by charter or prefcription, as a bifliop, parfon, vicar, mafter of a hofpital, and the like, chattels real and per- fonal in pofTeiTion, and in a£lion, belong to their refpeclive executors. Such property fhall no more go to their fuccefTors, than it fliall go to an heir; for ^ OF CHATTELS Book It. for fucccffion in a body politic is inheritance in cafe « Com. Dig. of a private perfon *. So, if the chattel be granted Fninchifes to fuch fole Corporation and his fucceffors : As, if F.16. 4.co.6^. ^ |.gj.j-,^ for years be granted to a biPnop, and his Litt. 9. a."* fucceffors, his executor fliall have it ^. So, if an biRoii.Abr. obligation or other fpecialty be executed to him ^^^" and his fucceffors, he can take it only as a private c 4 Co. 65. individual, and not in his corporate capacity ". Dv. 4{i. a. 2 Bl. Com. 430i4-3i' j5^(. |-,y cudom a corporation fole may take goods -and chattels in fucceilion, as in London, where the chamberlain is a fpecial corporation for taking bonds for orphanage-money. And fuch <5 Hargr, Co. cuftom has been frequently adjudged good ^ Alfo Lit 9 a. not.i. jj,^ (omQ inftances, Darticularly of chattels in aftioHj 4 Co. 64. b. ^ ^ -^ , n -c L Cro.Eliz 4<^4- the law is the fame without a cuftom ^ As if the prelident of the college of phyficians recover in Litt.9.a.riot.i. debt againft a party for pradifmg without a licence, Vni^ Abr. i^j fucceffor, and not his executor, Ihall have a t t. C orpora- •' , ' tion L. fclr£ facias on the judgment, for the debt was reco* .. „ „ ^, vered as due to him and the coilege ^. So, if the mailer of an hofpital recover in that charader the arrears of an annuity due to the hof* pital, and die, they go to his fucceffor, and not to E , Roll. Abr. i- ^ ' ^ ^ ^j^^ his executor •. SECT. Ch. IV. WHICH GO TO A DEVISEE. 157 « 2 Bl. Com. 428. SECT. IV. Of chaiiels which go to a devifee, or reinamder-rnan : and herein cf emblements, ojid heir-lGoim. A DEVISEE of the lands is entitled to all thofe chattel interefts which have been flated to belong to the heir ' ; and in one refped he has an advan- tage to which the heir is not entitled. Such devifee, and not the executor of the devifor, fhall have the emblements. Thus it has been held, that if A., felfed in fee of land, fow, and devife it to B. for life, remainder to C. in fee, and die before feve- rance, B. Hiall have the emblements, and not the executor of A. Or, that if B. die before feverance, his executor fhall not have them, but they fhall go to him in remainder. Or that, if the devife be only to B 5 and B. die before feverance, there his executor fhall have them, although B. did not fow. Thefe points were fo adjudged on the principle, that the devifee, in relation to the chattels belonging to the lands, flands in the place of the executor by the exprefs terms of the will ^ This diflinaion, li^'^^^^'/J- ^ ' Glib. L, of Ev. however, feems not very reafonable^: It appears 248.Vid.H0b. ftrange, that the corn fliould pafs to the devifee as '•'^" appurtenant to the foil, and yet fhall not defcend Li.t. tj.b. * to the heir. But a devifee of the goods, flock, "°'^- ^' and moveables is entitled to growing corn in pre- ference both to the devifee of the land, and the ex- l, of N. Pnus ecutor ^ 24. In 158 OF CHATTELS EooicIL In rcfpecl to the rights of the executor of tenant for lifcj as oppofed to thofe of the remainder-man, it is a general rule, that where a party hath an un- certain interert in land, and his eflate determines, yet he hath a title to the corn that is fown, and the other emblements on the land, though the pro- «G'lb. L. of pt^rty of the foil be altered *=. With the view of Ev. 240. giving all poffible encouragement to agriculture, the law has created a property in the emblements, diflini^ and feparate from that of the foil, and has provided that fuch property fhall be at the entire difpofal of the owner, that he may not decline cul- tivation, left the harveft fhould be reaped by a flranger. Moreover, the tenant who has fown. has acquired a property in the corn by his expence and labour. It was his own in its original ftate, and before it was committed to the earth ; and his pro- perty fhall not be divefled by its being fown on his own ground, and the lefs, on account of the fkill Ev^'sAo^ a *il ^^^ induflry he has employed in raifing it *. On thefe principles the doclrine of emblements in refpecl to the executor of tenant for life is founded. Therefore, if fuch tenant fow the land, eGilb. L. of and_die_b_efQie_j£yeranc_e, inafmuch as his eflate r-^'^"^";^ was uncertain, and determined by the act of God, }iargr. Co. ' J ' Liu. 55. b. his executor fhall hayejhe^xorn, and he mayjake it koi1.Abr.7a6, from off the ground o.fjhexen\ainder_-nian^. So, it ^-7- has been held, that at common law, on the death of cenant in dower, her executor was entitled to the J> zo II. 3. c,«. corn J and that the ftatute of Merton ^ which gives her Ch. IV. WHICH GO TO THE REMAINDER-MAN. j .g her the power of devifinp; ir, was paflcd only in af- firmance of the common law '. i G'!b. L. of hv. i4 •;. ]I,irj;r. To. If A., feifed in fee of land, fow, and then con- ^'^^- ^s- ^' vey it to B. and die, before feverance, the corn fhall belong to B. and not to the executors of A. on the principle, that every man's donation is to be taken mod jflrongly againll him, and, therefore, it fliall pafs not only the land itfeif, but alio the chattels, which are incidental to it ^ If A., feifed \G\\K L. of in fee of land, fow, and then convey it to B. for life, with remainder to C. for life, and B. die be- fore the corn is reaped, C. fhall have it, and not the executors of B., for B. had no property in the corn arifmg from his own charge, and induftry, but merely by A.'s donation of the land, to which the corn is appurtenant ; and by force of the fame donation, by which B. had a right to the corn, C. •ij-r ujur-Di ' G'^'^- L- of IS entitled to it after the death or i5. . Ev. 2^7. Hob. i.r-.Roll.Abr. 727. If A., feifed in fee, fow land, and give it to B. for life, remainder to C. for life, and they both die before feverance, it fhall go to A. ; for when the force of the donation is fpent, the property fliall refult to the donor »". If diffeifor of tenant ''^ GUb. L. of for life fow the land, and fuch tenant die before Hub.*i3i. feverance ; his executor, and neither the diiTeifor - nor the reverfioner, fhall have tbe corn ". But » 3 Bac. Abr. trees fhall not be regarded in favour of the execu- ,^3^ '^'^' tor of the tenant for Hfe,, any more than of any other executor, as emblements,, or 2^ diftin£l from ^ the foil; for they are parcel of the inheritance, M and ^(jQ ' OF CHATTELS Eook II. and are planted for the benefit of future genera- « Glib. L, of tiwns ". Therefore; if fuch tenant plant oaks, or i.v. 141. 1 151. _ ^ " Com. lav Co. Other tin'iber trees, or trees not timber, or hedges, '^^' ' or buflies, they fiiall not go to his executor, but to ■ EK\[^'<,.'ium. him in remainder''. If, as we have feen, the te- jjig. i;'cn'. fj^i;i|- ill fj^g make a leafe, exceptino; the trees, and G I Ii. Ii;iig. . ' r o :> Co. Litt.ij.b. afterwards grant the trees to the leilce, they arp ^ ■ -''^' not re-annexed to the inheritance, but the leffee has an ablblute property in them, and they (hall go to KSrH""'- his executor -. . 4 Lo. 63. b. But if tenant by the curtefy, or in dower, or after pofhbility of ifllie extintl, cut down trees, they «■ Com. rig. fliali not go to the executor, but to the remainder- BiensH. 4C0. nian, or reverfioner "■. So, if A., tenant for life, 63. II Lo 8i. ' _ ' ' ' ^. with remainder to B. for life, cut down trees, they » ( om D's- , , . ■' liieiis. k. fnall bcloncj to him in reverfion '. Al.Si. ^ Yet, if there be a leiiee for life, or years, with- out impeachment of wafte, he has fuch an intereft, and property in timber trees, that, in cafe they are cut down in his life-time, or during the term, th'ey t Com. Dig. n n 1 1 1 • iVciKs. H. ihall belong to his executor '. llargr. Co. l.itt 220- Moore 327. If the trees are thrown down by tempeft In the II Co. 82. b. life.time of fuch leffee, or during the term, they fliall go to his executor, and veil equally as if I Ron "rc^ '^^^y h^^ ^^^^ fevered by the acl of the party ". j2j- But a leffee, though without impeachment of walle, has not an abfolute property in the trees ; for if they are not cut dov/n in his life- time, or during the term, his executor ftall not have them, but they fliafl X Lat. 163, Ch, IV. WHICH GO TO THE REAIAINDER-MAN, j 5 j fhall so to the lefTor, as annexed to the freehold ^. ^' 1 Roll. Rep. So, if A., tenant for hfe, without impeachment ot wafle, with power to cut trees, and to make leales for three lives, leale for three lives, excepting the trees, and die before they are cut, the trees are re- annexed, and fliall not be fevered by his execu- tor \ A tenant pur aiiter -vie, is confidered by the law, in regard to emblements, in the fame light as a tenant for his own life; and, therefore, if a man be tenant for the life of another, and the ccjiui gue vie die after the corn be fown, the tenant pur autcr vie, ■ mid in cafe of his death, his executor, ihall have the emblements K y z B1. Com, 113. The advantages of emblements are alfo extend- ed to the parochial clergy, by the flat. 28 //. 8. r. 11.^ « a Bl. Com. The leffees of tenants for life at common law, on the death of the leilbrs, exercifed the unreafon- able privilege of quitting the premifes,-and paying rent to nobody for the occupation of the land fub- fequent to the lail quarter-day, or other day aflign- ed for the payment of rent. To remedy which, it is now enafted by flat. 11 Geo. 2. c. 19. § 15. that the executors of tenant for life, on whofe death any leafe determined, fhall recover of the lefTce a rate- able proportion of rent from the lall day of payment « , bi. Com, to the death of fuch lefTor '. 124. M 2 If l62 OF CHATTELS. Book II. If a leffee for life of a manor feize an eftray, and die before the year and day are elapfed, it fhall be- b II Vin.Abr. lonff to his executOF ''. 1+5. Moore 1 1 ° « Snpr. 15 i. dL.ofNi.Pr. 34- * Lnxvlon v. Lawton, 3 Atk. n. Lord Dudley V. Lord Warde, Ambl. 113- In regard to heir-looms, I have already flated, that the Itriclnefs of the ancient rule has in later times been relaxed, as between the executor and the heir ^ But it has been flill more fo, as between the executors of tenant for life, or in tail, and the reverfioner ''. Hence it has been adjudged, that a fire-engine fet up for the benefit of a colliery by tenant for life, or in tail, fhall be confidered as his perfonal eitate, and fiiall go to his executor, and not to the re- mainder-man. And indeed reafons of public con- venience opfrate more ftrongly as between fuch parties, than even as between heir and executor. A tenant for life would be difcouraged from mak- ing improvements, if the benefit of them might de- volve not on his perfonal reprefentatives, but on a remote remainder-man, perhaps the next day after the improvemenis were effeded % CHAP. ( 1^3 ) C II A P. V. OF THE CHJTTELS WHICH GO TO THE JVIDOIV. S E C T. I. Of the chattels real ivhich go to the widow : a7id herein alfo of fitch chattels real as belong to the . furviving hufband, IN contemplation of law, a complete unity of perfon fubfills between the hufband and wife. As long as the relation continues, they are regard- ed as one individual. The very exiftence of the wife is fufpended during the coverture, or entirely merged or incorporated in that of the hufband. On this principle, whatever perfonal property be- longed to her when fole, is veiled in the hufband by the marriaee \ ' * ^;l- ^°^: '' ° 433- Com. Dig, Baron &Femc, And, firfl, in regard to chattels real : Some are in the nature of a prefent vefted intereft, in others fhe has only an interefl poffible, or contingent. Of the fir ft clafs are leafes fOr years, eflates by ftatute- merchant, flatute-flaple, or elegit, or any other chattel real in her poflefTion. The fecond clafs is diftinguifhed into fuch as are called pofTibilities, and fuch as are denominated contingent interefts ; as, if a term of years be devifed to A. for life, and M 3 after i64 OF CHATTELS "REAL Book H. after A.'s death to B. B.'s interefl in the refidue of the term operates by way of executory devife, and i? ftyled a pofliibility. But, if a real eflate be limited to A. for life, and after the deceafe of A., and if B. die in A/s life-time to C. for a term of years, this operates not as an executory devife, but as a re- mainder, and, therefore, is confidered as a contin- f Hargr. Co. -ok j:.itt.3ii.not.i. gent mterelt ". In the chattels real of the wife, prefent and vefi:- ed, an interefl: in the nature of a joint-tenancy of the hufband and wife is created by the marriage, and is a confequence of their legal unity, but fub- « Plowd. 41^. t^Q- ^Q alienation by the huiband in his life-time ' ; for example, in cafe of a leafe for years, he Ihall, during the coverture, receive the rents and profits of it ; but if he does nothing more, on his dying before his wife, it fiiall furvive to her, and fhall nop go to his executor ; but he may during the cover- ture alienate it, either dire6lly, or confequentially, by fuch acts as fhall induce an alienation. He may fell, furrender, or difpofe of it in his'life-time at his pleafure. On his attainder or outlawry, it fhall be * 1 Bi. Com. forfeited to the kino;, or it may be taken in execu- 4uHnrgr.Co. ..,.,, ,^ ^ Litt. 46. b. tion lor ins debts . I'luwd. 26]. ■ ' He has alfo during coverture a right to affign fuch poffible, and contingent interefts as have been juft mentioned, unlefs, perhaps, in thofe cales where the pofTibilit)^, or contingency is of fuch a nature tliat it cannot happen during his life. As where a leafe is granted to the hufband and wife for Ch. V. WHtCH GO TO THE WIDOW. j ^ ^ for their lives, with remainder to the executors of the furvivor '. Or unlefs in equity at lead, the fu- H,n"t;?''c,o.'" ture or executory interefi: in a term, or other chat- J-'^f *^'; h. - t T • J L r c Com. Dig. B*- tel, were provided for the wiie with the content or run .v I'cmc, the hufband before marriage, for in that cafe his '" ^" difpofition of it would be a breach of his own f nargr. Co. agreement ^ Lit. 35. -not.,. If the hufband difpofe not of the chattels real of the wife in his life- time, and die before her, they fliall not pafs by his will, nor fhall they go to his executor; for, not having altered the property in his life-time, they were never transferred from the wife; but, after his death, fhe fliali remain in her ^ ^ ^i,^"?- / ^ 4.14. Plov\d. ancient pofTeffion ». 4'S. But, if the hufband grant the term, on condition that the grantee fhall pay a fum of money to his executors, thou2:h the condition be broken, and the executors enter, this is a difpofition of the term, and the wife is barred of it, for the whole intereil h c-om. Dir. was paffcd away'. ITh';;"?'' Co. Litt, 46.11. If the hufband and wife be ejecled of the term, . ^nd the hufband bring an ejedment in his own name only, and recover, this alfo is an alteration of the term, and veits it in the huiband ' ; for his * i Roll. Rep. fuing alone is exprefllve of his intention to dived co Lut.V.b. the wife of her interefi, and to treat the term as j^t^^iJ'"^; ""^' ^• cxclufively his own. M 4 So, i66 OF CHATTELS REAL Book IL If he fubmit tbe term to the arbitration of A. who awards it to B., it will be a difpofition by the k Dyer 183. hufband againfi: his wife''. _ So, the hufband may make a leafe of the term, to commence after his death, and it fhall be good, although the wife fur- 'Cro.F.liz.28-. vive ' ; but he cannot charge fuch chattel real be- Foph.j. yond the coverture; as, if he grant a rent-charge cut of the term, and the wife furvive, flie fliall avoid. the charge, for by her furvivorfliip fhe is remitted mHargr. Co. to the term, of which the coverture did not divefl Lilt. 351. Up^ m l'lowd.4.18. • Nor if there be judgment againfl: him, can exe- cution be fued out after his death againfl the " I Roll. Abr, term " : nor (hall it after his death be extended on a ftatute or recognizance acknowledged by him ": o , Roll. Abr. .. ^ ^ i,j r u- . .U 346. nor, as it feerns, for a debt due rrom him to the p 2 Poll. Abr. king P. Nor has his difpofition of part of the term Abr. 3+6!"* »he effta of a difpofition of the whole. As, if A. be pofiefled of a term for forty years in right of his wife, and grant a leafe for twenty years, referving a rent, and die; although the executors of the huf- band firall have the rent, for it was not incident to the reverfion, inafmuch as the wife was not party to the leafe, yet fhe fhall have the refidue of the q llargr. Co. ^gj-rn q. If the term be extended, the wife fhall „ „ . , have the term after the extent is fatisfied '. If the T I Roll. Abr. , , . r 344. hufband and wife mortgage the term, and the nuf- band pay the money, and enter and die, the wife 5 I Roll. Abr. lliall have it'. If the wife and her hufband were ^'^^' joint-tenants of a rent-charge for their lives ; the wife, in cafe fhe furvive, fhall have the arrears incurred Ch. V. WHICH GO TO THE WIDOW. T67 incurred during the coverture '. If the hufband f 1 Roll. Abr. and wife make a leafe refcrving rent, and fhe af- -gs"; fent after the death of the hulband, (lie fhall have 1 • I-' IT .' u r\ -c »!. " I Roll. Abr. the arrears incurred in his hte-time ". Or, it the ^^^^ hufband be entitled to an advowfon in right of his wife, and, after an avoidance, but before prefenta- tion die, his wife and noc his executors fliall pre- "^ Com Dig. ' Baron «r erne, fent"^. E. 3. Lo. Litt. 351. In cafe the wife die before the hulband, all the chattels real of the wife, in v/hich there exills a prefent, adual, and veiled intereft, become abfo- "Co.Litt.soo. lutely and entirely his own by furvivorfliip "", and Baron ScFeme, that without taking out adminiftration to her ^. ^' *• To entitle himfelf to her chattels real, which are t,^""^:?'^- not fo veiled, he mud make himfelf her reprefen- E.a.RoU.Abr. tative, by becoming her adminidrator. It feems ^'^^' formerly to have been doubted, whether, if, having furvived his wife, he died during the fufpenfe of the contingency on which any part of his wife's pro- perty depended, his reprefentative, or his wife's next of kin, had a right to the benefit of it ; but by a feries of authorities it is now fettled, that the hufband's reprefentative is beneficially entitled, as well to this fpecies of the wife's property^, as to U^^^^^^'*' any other, which devolved to him either as furvivor, not. i. ot by virtue of the grant of adminiftration. And, although the hufband's right to fuch grant be per- fonal only, and not tranfmiffible, and, as I have before flated ', the fpiritual court be in fuch cafe asupr. gs. obliged by the (tat. 31 jE". 3. to commit admini- ftration to the next of kin of the wile, yet luch grantee 168 OF. CHATTELS REAL Book II. *> Sed vid. llargr. Co. Litt. 351- not. I. iHargr. Law Ir. 475. in not. c jMoorc 7. d Com. Dip. Baron Si Feme, E. 3. H:irgr. Co. Litt. 351. « Com. Dig. Baron &Feme, I Fonbl. 98. J Vern. 7. 18. 2. 2 Vern. . 50a.ca.Tcmp. hquity, alio, confiders money due on mortgage ia.k. i6i;. ^g ^ ^^^^ jj^ action, and it feems to have been f®r- merly underflood, that, fmce the hufband could not difpofe of lands mortgaged to the wife in fee, without her, and the eilate remained in her, Ilie, Of her reprefentatives, were entitled to the money, as incident to it ; but, that in regard to a mort- gage debt, fecured by a term of years, as the huf- band had an abfolute power over the term, there was no obftacle to the debt's vefling in his repre- fentatives ; but this diftin£lion is exploded, and it is now held, that, .although, in cafe of a mortgage in fee, the legal fee of the lands in mortgage con- tinue in the wife, flie is but a trullee, and the » Hargr. Co. trufl of the mortgage follows the property, of the Litt. 35'. not. , , ,. iP Wms. debt". 45S. 2Atk. ao;. If the hufband and wife have a decree in equity, in right of the wife, and the hufband die, the be- o iiargr. Co. nefit of the decree belong^ to the wife, and not to Litt. 3u not. ^1^ executor of the hufband °. I. I Chan- Ca. '^' But, ch.v^ which go to the widow. 173 Bat, if the wife's fortune b)e in the court of chancery, on the hufband's death his rcprefenta- tives fliall be entitled to it, ful^ject to the fame equity as before, in favour of the wife. In cafe of her death it fhall become the abfolute property of the hufband ; and it has been held, even where the court detained the fund, in order to enforce a provifion for the wife, and made a decree for that purpofe, and fhe furvived her hulband, yet, that on her death, his reprefentatives were entitled to it, inafmuch as it had abfolutely veiled in him by law. In thcfe cafes, it feenis to make no differ- ence, whether there be any ifiue of the marriage, p i Fonbl.sg, or- not p ^ ^?- ^'"'^'^• ^^ "^'- • Ciian 418. Ambl. 509- In cafe the hufband furvive the wifs, her chat- tels real, as we have feen, {hall become his abfo- lute property. But her c/jo/es in adion fliall go to -her reprefentatives, excepting the arrears of rent due to her, vi-hich, as I have before itated, on her death are, by (tat. 32 Ihvi. 8. c. 37. given to the hufband. The ground of the diftinclion is this : The hufband is in abfolute pofTeflion of the chattel real during coverture, by a kind of joint- tenancy with his wife, and therefore the law will not wrell it from him, though if he had died firft it would have furvived to the wife, unlefs he had al- tered, the poffelTion in his life-time : but a cbofe in action was never in his pofleffion : He could ac- quire it only by fuing in his wife's right, and, ?:s after her death he cannot as hufband bring an ac- tion in her right, becaufe they are no longer one a-'^J the 174- q 1 Bl. Com. 43 5- OF CHATTELS PERSONAL Book IL the fame perfon in law, therefore he can never as fuch recover the poffeffion. But, in the capacity of her adminiftrator, he may recover fuch .things in aftion as became due to her before, or during the coverture ". ' 2 Bl. Com. 43<;. 3 Bac. Abr. ^.';. Dr.& Stud. Dial. i. cap. 7. « Com. Dig. Baron 5: Feme. E. %. I Mod. 179. J Sid. 337. « Com. Dig. Barun ic Feme. E. 3. a Roil. Rep. »34. " I Fonbl. 87- Prec.Chan.24. I Atk. »7z. In chattels perfonal, or chofes in poffeffion of the wife in her own right, as ready money, jewels, houfehold goods, and the like, the hufband hath an immediate, abfolute, and adual property de- volved to him by the marriage, which never can revell in the wife, or her reprefentatives ^ Such chattels alfo as are given to the wife after the marriage fhall belong to the huiband, and he Ihall be entitled to them, although they had not come to his poffeffion at the time of her death *. Thus it hath been held, that if a legacy be left to a wife, to be paid twelve months after the tefta- tor's death, and the wife die within that period, her hufband is entitled to it, for an immediate in- terefl was veded in him, and fubjedl to his releafe before the time of payment '. Such are the legal confequences of the unity of hufband and wife ; but courts of equity, although they recognife the rule of law, which confiders the huiband and wife as one perfon, yet, in fome cafes, will treat their interefls as diftincl". If property be given generally to the wife, it fliall vefl in the hufband, both in law and equity ; nor 7 fliall Ch. V. WHICH GO TO THE WIDOW. j - - lliall it be fuppofed to be foi" her feparate ufe, though file live apart from thehuPoand^^ But ''iVcrncjfir. where it is given to the leparate uie or the wire, Ihe fliall be entitled to it in equity independently of her hufband *. And though it were always " » "^'^^- 455- clear, that (lie was thus entitled to fuch property, if truftees were interpofed, yet it was formerly a doubt, whether fhe could take it where none were appointed'. It is now, however, fettled in the ^p ■J^^!^!,''',^^;" affirmative. It has been 'held, that, where A. de- aP. Wm8.79. vifed lands in fee to his daughter, a feme covert, for her feparate ufe, without naming truftees, it fhould be a truft in the hufband, for it makes no difference, whether the truft be created by the adl of the party, or by the a6c of the law ^. So, ^^^ ^- '^.f^' where a bond was bequeathed to a wife, for her .799. com. Dig. fole and feparate ufe, and no truftees nominated, Feme. b.i. it was held to be completely vefted in her in * Bunb. 127. equity \ And equity will not only raife a truft, where the gift is exprefsly for the feparate ufe of the wife, but will infer it from words not technical, or from the circumftances under which the gift is made, or, as it feems, merely from the nature of the fubjeft ; thus, where an eftate was given to a huf- band, for the livelihood of his wife, he was con- fidered as a truftee for her feparate ufe ''. So, ^ 3 Atk. 399. where diamonds were given to the wife by the huf- band's father, on her marriage, it was held, that they were a gift to her feparate ufe, and that fhe was in equity entitled to them in her own right % * 3 Atk. 39J. N And, JL'jb T FonM. 98. Alk. 393. OF. CHATTELS PERSONAL Book IL And, where a foreigner luude the wife a prefent of trinkets, though not exprefsly for her feparate ufe; Lord Hardwicke, C. feemed to think they Ihould be fo conftrucd'> (1 1 Atk. 270. « I Alk. I?!. 3 Atk. 393. f 3 Alk.:93. Gifts, likewife, from the hufband to the wife, although the law does not allow the property to pafs, fhall, without prejudice to creditors, be fup- ported in equity, whether trudees be interpofed, or not''. Thus, where the hufband transferred one thoufand pounds South Sea annuities in the name of his wife, ihe was held entitled to- them, as given to her feparate ufe % So, trinkets given to the wife by the hufband, in his life-time, were decided to be her feparate eftate ^ And, where a hufband allowed his wife to make profit of all butter, poultry, fruit, and other trivial matters arifmg from the farm, beyond what was ufed in the family, out of which fhe faved one hundred pounds, which the hufband borrowed, on his death, the court of chancery allowed the agree- ment, as a reafonable encouragement of the wife's frugaHty, and admitted her to come in as a credi- tor for that fum =. So, where the hufband agreed that the wife fliould take two guineas of every te- nant, beyond the fine paid to the hufband for the renewal of a leafe, this was allowed to be fhe h ;, p.Wms.} .vvife's feparate moneys But, in all fuch cafes, to entitle the wife to fuch allowance, there rauft be a fufiicient fund for the payment of debts'. Nor will the court, in any cafe, permit a gift of the whole of the hufband's eftate, while he is liv- ing, J ^ p. VVms 337- 339. I Foiibl. 95- V 3 P. Wms. .'39- ch.v. which go to the \vido-\v. J-- intT, for that would not be in the nature of a mere provifion, which is all fhe is entitled to '. i 3 Aik. 72. But, if the hun:)and and wife live together, and he provide her with cloaths and other neceffaries, and fhe demand not, but fuffer him to receive the rents and profits of her feparare eilate, or her pin-money, or if fhe accept payments fhort of what file is entitled to on his death, neither flie, nor her reprefentatives, fliall have an account of fuch feparate eftate, farther back than a year, for file fliali be prel'umed to have waived her right to the antecedent produce''. Yet, under particular '' ^P-Wm*. circumltances, it may be otherwiie ; as where the Wms. 355. wife had three hundred pounds per aiinum pin- ^^^^-^-^yO' money, and the hufband, for feveral years before his death, paid her only two hundred^ but promifed her that fhe fhould have the whole at lall, fhe was \ » Atic. ^rq. held entitled to all the arrears '. Ca^ Abr.'uo". pl. 7. In like manner fhall flie be entitled to all arrears, n 3 Atk. c^s- !f fhe lived feparate from her hufband ""'. ^ ^''^^- *&^- But, if A. propofmg to give a married woman itioney for her feparate ufe, and, to fecure it, give her a note for a certain fum, as received, pro- mifin^ to be accountable, it fliall be aifets in the hands of the executor of the hufband. So, like- wife, if a married woman depofit money in A.'s hands, to be kept for her feparate ufe, it fhall be confidered as part of the huiband*s eftate ". « Bunb. 188, N 2 SECT, 178 E:. Cr-.-n. OF PARAPHERNALIA. Book IL SECT. III. Of the wife's paraphernalia. THE wife, alfo, may acquire a legal property in certain effects of the hufband at his death, wiiich iliail furvive to her over and above her join- ture or dower, and be tranfmiffible to her perfonal '^A\^r. W6^. reprcfentatives *. Ex. Siippl. 61, oj. II Vin. Ab'-. 178. Such elFecls are ilyled paraphernalia ; a term, which, in law, imports her bed, and neceffary ^■^--^.Dig, apparel, and alio I'uch ornaments of her perfon as Feme F. v are agreeable to the rank and quality of the huf- o.'irsvvinb! band p. Pearls and jewels, whether ufually worn part 6. f. 7. t)y the wite % or worn only on birth days, or other <5 cro. Car. public occalions ', are allb paraphernalia. 3 . t. ,94- y^ what amount fuch claims fhall prevail ixS a point which cannot admit of fpecific regulations. It mud be left, on the particular circumftances of s ^ Bar. Abr. the cafe, to the difcretion of the court *. 66. Cru. C;ir. 343- ,. - ,;j-„«Wi- ,-, * -?:- In the -reign of queen Elizabeth, jewels, to tjie value of five hundred marks, were allowed, in the t i Leon. t66. c^fe of the wife of a vifcount ^ A^diaraond chain, of the value of three hundred and feventy pounds, "^'^%nrV'52- "^v^^^"*^ ^^^ ^''^'^y ^^'^s the daughter of an earl, and Koil.Abr.911. wife of the king's ferjeant at law, in the reign of 175. s. C Charles the firft, was confidered as reafonable ". Jewels Cm.v. of paraphernalia. 179 Jewels and plate, bought with the wlfe*s pin-mo- ney, to the amount of five hundred pounds, which bore a fmall proportion to the hulband's eflate, were regarded in the fame light "* : And Lord ^^^''^^ ^'''''"' Hardwicke, C. held the widow of a private gentleman to be entitled to jewels worth three thoufand pounds, as her paraphernalia, and that the value made no difference in the court of chan- cery ''. By the cuflom of London, a citizen's wi- *^ ^Aik. 77, dow may retain fome of her jewels as paraphernalia, t , i vir,. Abr. but not ally. i^°- ^^'^'i- Chan.Kep.179,, If the hufband deliver cloth to the wife for her apparel, and die before it be made_, flie fhall have the cloth, as of this fpecies of property ^ If the "^ 1 Roll. Abr. hufband prefent his wife with jewels, tor the ex- prefs purpofe of wearing them, they fhall be efteemed merely as paraphernalia, for, if they were confidered as a gift to her feparate ufe, (lie might difpofe of them abfolutely, and fo defeat his in- » 3 Atk. 398. tention% The hufband, if inclined to fo unhandfome an exercife of his power, may fell or give away, in his life-time, fuch ornaments and jewels of the ^^Bl. com, . , ^ . 436. 3 Atk. wife, but he cannot dilpofe of them by will ''. 394- In cafe of a deficiency of aflets for payment of e iP.wms. debts, the widow fhall not be entitled to fuch pa- ^^°' l/^^^- ' -T 369. JMoore raphernalia% not, even, if they were prefents made a«6- 3B10.P to her by the huPoand before marriage ''; nor fhall a\. ^tk 104 ^ ihe be fo entitled where there are not allets at the N 3 time i8o OF PARAPHERNALIA. Book II. <= a P. Wins, time of the hufband's death, although contingent ^^" aflets fliould afterwards fall in ". But, fuch ornaments, though fubje£l to the debts, fliall be preferred to the legacies of the huf- band, and the general rules of marfhalling aflets, f 2 p. Wms. (which will be treated of hereafter,) are applicable ^p.Wms'.'7S9. in giving effea to fuch priority ^ a p. Wms 542. If the huiband pawn his wife's paraphernalia, and die, leaving a fund fufficient to pay all his debts, and to redeem the pledges, fhe is entitled to have g 3Atk.395. them redeemed out of the perfonal eftates. So, where a hufband pledged a diamond necklace of the wife, as a collateral fecurity for money bor- rowed on a bond, and authorifed the pawnee to fell it, during his abfence, at a fum fpecified, it was held, that this amounted not to an alienation, if it were not fold in his life-time, and that it was «» 2 Atk. 393. redeemable for his widow \ If a woman, by marriage articles, agree to claim fuch part only of the effeds of the huiband as he Ihall give her by his will, fhe is excluded from her * 3 Bnt. Abr. paraphernalia '. But her necelfary apparel fhall, in i4Von"&^'^' all cafes, be protefted, as decency and humanity Feme. F. 3 require, even ao-alnft the claims of creditors ^ 2 Vcrn. 49.83. I'd 436-^^ RoIl' If the hufband bequeath to the widow her jewels, Abr, VII. f^j. j^gj. lifg^ ^j^(j tlien over, and fhe make no elec- tion to have them as her paraphernalia, her execu- I 2 Vern. 246. tor (hall hare no title to demand them '. CHAP. Ibl CHAP. VI. OF THE INTERIM ST OF A DONEE MORTiS CAUSA. A NOTHER fpecies of interefl In the perfonal pro- perty of the deceafed remains to be conlidered. Such as vefts neither in his executor, nor his heir, nor his widow, in thofe refpedlive characters. It is created by a gift under the following circumftances. When in his lafl illnefs, and apprehenfive of the approach of death, he delivers, or caufes to be de- livered to a party, the poflellion of any of his per- fonal effeds to keep in the event of his deceafe. Such gift is therefore called a donatio caiifd inortis. It is accompanied v/ith the impHed trufl, that, if the donor live, the property fhall revert to him, „, ^ ... V ^V 1 ^ r 1 t ■* 2 Bl. Conv mice It IS given only in concemplation of death ^ 514. n Vm. Abr.176.Prec To fubftantiate the gift, there muft be an adual tradition or delivery of the thing. The poiTeflion of it muft be transferred in point of fad. The purfe, the ring, the jewel, or the watch, muft be given into the hands of the donee, either by the donor himfelf or by his orders But there are ^^ ^\^^■^v^ r • 1 . t r- rv Ml a vel.juii.ui cafes, m which the nature of the fubjecc will not iF.wms.4i>4 admit of a corporeal delivery; and then if the party goes as far as he can towards transferring the pof- feffion, his bounty iliall prevail. Thus, a fhip has been held to be delivered, by the delivery of a bill of fale defeafible on the donor's recovery. And N 4 ia 4^i. l82 OF A DONATION MORTIS. CAUSA. Book 11. in a recent cafe, the Lord Chancellor feemed to be of opinion, that fuch donation might be efFeded « zVcf. jun. by deed or writing \ 120, The delivery alfo of the key of a warehoufe, in ' which goods of bulk were depofited, has been de- termined to be a valid delivery of tlie goods for ««zVcf. 434. fuch a purpofe ''. So the delivery of the^key of a trunk, has been decided to amount to a de- ePrec.inChan. livery of the trunk, and its contents \ Nor in vuiaiiblvVf! thofe inftances were tlie key and bill of fale con- jun. 116. fidered in the light of fymbols, but as modes of attaining the pofleirion and enjoyment of the pro- f 2 Vef. 443. perty \ So a bond given in profpeft of death, al- though a chofe in action, is a pood donation Tiiortis e3Alk.2i4. r?r • JU1.J1- 2 Vef 441. caufa^ lor a property is conveyed by the delivery^. 4Ur0.Ch.kep. gm^i^^ likewife, have been the decifions in regard to bank notes ''. In all thefe cafes, the donor de- 404 3" p.Wnis. livers as complete a poffelhon as the fubje£t matter But bills of exchange, promifTory notes, and checks on bankers, feem incapable of being the j .-??, Wms. objefts of fuch donation '. The delivery of thefe 4Br0.ch.Rcp! inftruments is diftinguhhable from that of a bond, »si- which is a fpecialty, and itfelf the foundation of the action, the deltrudtion of which deftroys the demand ; whereas the bills and notes are only evi«. fe 2 Vef. 44a. dence of the contrail % Nor fhall a delivery merely fymbolieal Ii^Ve fuch operation. As, where, on a deed of gift not to take Ch. VI. OF A DONATION MORTIS CAUSA. g^ take place till after the grantor's death, a fixpence was delivered by way of putting the grantee in pof- feffion; the ecclefiaftical court held fuch delivery to be infufficient for the purpofe, and pronounced for the inflrument as a will '. So it was determined ' zVcf. 440. in chancery, that the delivery of receipts for South Sea annuities was in like manner ineffedual, and that, to make it complete, there ought to have been a transfer of the ftock"'. Lead of all fhall fuch '»4Vcf.43t. donation be effeduated by parol, as, merely faying, «' I give,'* without any a6l to transfer the proper- ty ", Nor fhall a prefent abfolute gift be confidered . ^ v^f. ^^^ as of this denomination. To bring it within the ^Vef.jun.iao. clafs, it muft be made to take effefl: only on the death of the donor ^ Therefore, the gift of a "aVeCjun.iao. check on a banker, " Pay to felf or bearer two hundred pounds,'* and alfo of a promiflbry note, being; abfolute and immediate, was held clearly on „ ^ . that ground to be no donatio mortis cauja^. nvX ,n.4Bro. where the donor gave a bill on his banker, with s.c.^^' an indorfement, expreffing that it was for the do- nee's mourning, and giving diredions refpedling it, the bill was decided to be an appointment in the nature of fuch donation, fmce it was for a purpofe neceifarily fuppofmg death \ VJ.'I.Tl' aVef.jun.iii. Simple contraQ: debts, and arrears of rent, are Incapable of this fpecies of difpofition, becaufe there caa be no delivery of them ^ r aVef. 436. 44Z. Whether i84 OF A DONATION MORTIS CAUSA. Book IT. : Whether the delivery of a mortgage deed will amount to fuch (rift of the money due on the fecu- s Vid. 3 P- . . ? . Wins. 358. in rity, is an undecided pomt '. not.aVef.4i6. Ambl. 318. If the donor die, the interefl of the donee is completely vefted ; nor is it neceflary that the gift *"Tp.wms. Should be proved as part of the v/ill '; nor is the 44i.3i'.Wms. executor's alTent to it requifite, as in the cafe of '^"' a lesjacy". But the gift, however regularly made, U5Bl.C0m- O J t. ' O J 5i4.2Vtir jun. Ihall not prevail againft creditors ^■. JtiO. "/•^Vefjun- Such is the interefl which the executor, the heir, sjo. the fucccfibr, the devifee, the remainder-man, the widow, and the donee mortis cavfd of the teftator, refpedively take in the perfonal efFeds. ioo on CHAP. ( i85 ) C H A P. VII. HOJV EFFECTS WHICH AN EXECUTOR TAKES IN ' THAT CHARACTER MAT BECOME HIS OfVN. 'T^^HE property which an executor takes In his re- prelentative capacity may, in certain inftances, be converted into his own. As, firft, in regard to the ready money left by the tellator. On its com- ing into the hands of the executor, the property in the fpecific coin mufl of neceility be altered ; for when it is intermixed with the executor's own money, it is incapable of being diftinguiilied from it, although he (hall be accountable for its value ; and therefore a creditor of the teflator cannot by jieri facias on a judgment recovered againfh the ex- ecutor, take fuch money as de bonis iejlatoris in execution \ So, if the teftator died indebted to » oflf. Ex. 2j. the executor, or the executor not having ready money of the teftator, or for any other good reafon, fhall pay a debt of the reflator's with his own mo- ney, he may eled to take any fpecific chattel as a compenfation ; and if it be not more than ade- quate, the chattel by fuch eledion fhall become his own ^ '' Off. Ex. 89. But if the debt due to him from the teftator amount to the full value of all his effeds in the ex- ecutor's hands, there is a complete tranfmutation 3 ^^ Dy. 187. b. Plowd. i«5. ^ g ^ HOW EFFECTS BECOME EXECUTOR'S. Boo^ I[. of the property in favour of the executor, by the mere adl, and operation of law : in the former cafe, his eledion, and in the latter, the mere operation of law, fhall be equivalent to a judgment and exe- c Plowd. J? 5. cution, for he is incapable of fuing himfclf ^ So, in the cafe of a leafe of the teflator devolved on the executor, fuch profits only as exceed the yearly value (hall, as it has been already ftated, be held to be alTets : it therefore follows, that if the executor pay the rent out of his own purfe, the * Off. Ex. 90, profits to the fame amount {hsll be his"*. There §1. ... are likewife other means of thus changing the pro- perty. As, if the teflator's goods be fold under a Ji^ri faciasy the executor, as well as any other per- fon, may buy fuch goods of the fherilT; and in cafe he does fo, the property, which was vefled in him as executot, fhall be turned into a property In jure •Off. Ex. 91. propno\ If the executor among the teft:ator*s go'ods find, and take fome, which were not his, and the owner recover damages for them in an adlion of trefpafs or trover, in this, as in all fimilar cafes, the goods fhall become the trefpad'er's property, becaufe he I Off. Ex. 92. has paid for them '. nmb*; GHAP. CHAP. vin. OF THE INTEREST OF AN JDMIKISTR^ITOR, GENERAL AND SPECIAL—OF A- MARRIED WOMAN, EXECUTRIX OR ADMINISTRATRIX— OF SEVERAL EXECUTORS OR ADMINISTRATORS— OF THE EXECUTOR OF AN EXECUTOR— OF' AN ADMINISTRATOR DE BONIS NON— 0/^ AN EX- ECUTOR DE SON TORT. S an adminiftiator has the office andqviality of an executor, the iniered of the one in the property of the deceafed, is in all refpefts the fame as that of the other \ The intereft of fpecial or * 2^S,^-.*5». Off. Ex. SuppI, limited adminiftrators is, alfo, during its continu- 43. 5 Co. 83. ance, the fame as that of an executor '■' ; but they ^ ^■'^"^'■'•4^ are not invefted, as will be fhewn in its proper ^'Fonbl.sXj. place, with the fame powers and authoritv as be« " uVin.Abr. , . ' 104, 105. long to mm '. - lUc. Abr. 13, 14. If a married woman be executrix, or adminiftra- trix, the hufband has a joint intereft with her in the e&cls of the deceafed ; fuch as devolves the whole adminiftration upon him, and enables him to act in it to all purpofes, with or without her affent \ ^Ld.RajTn., c r ' 369. Com.Djf. Therefore it is held, that he may furrender or dilpole Ac'mon. n. of a term, which was vefted in her in that capacity, off! Ex^'igg- and fuch Turrender, or difpofition, fhall be binding jTerm Rep. upon her^ So, a gift or releafe of airy-.part of the eB,".Rep.8oj. deceafed's perfonal property by the hufband alone, Ihall go OF A MARRIED WOMAN EXECUTRIX Book II. fSalk. 117. ^^^^ ^^ equally available'; but the wife has no Ort'.Ex. 208. right to adminifter without the hufband; and fuch adts, as have been juft mentioned, if performed by her without his concurrence, will be of no vali- f Salk. 3t)6- dity ^. In cafe of the hufband's death, the interefl:, ^^8" Com^.Dig. never having been divelled, fliall farvive to her; Admon. D. but if fhe die, it fliall not furvive to the huflrand, vid. lupia 4- jj^^^-j^y^h as it belonged to him merely in her right, h ofF. Ex.ios. 2is reprefentative of the deceafed ". And although, Ba^on -vFe'me. generally fpeaking, a feme covert cannot make a F. I. Dy. 33'- ^m without the afl'ent of her hufband, yet without his aifent fhe may make a will, and continue the executorfhip in refpecl to the property thus veiled 1 1 Bl. Com. jn her in auier droit '. Hence, if the wife of A. 199. 3 Bac. have debts due to her in her own right, and is alfo Ex'^Supp^fo. executrix to B., and make a will without her huf- band's aflent, appointing an executor, the will in refped: to the goods and credits which belonged to her as the executrix of B., fhall be valid, and her executor may prove it in oppofitlon to the hufband. But as to the debts due to her in her private capa- city, the will fhall be void, and the hufband may take adminiflration : flie fliall be confidered as dy- ing teftate in regard to the property of which fhe was poffefTed as executrix, and as inteflate in re- gard to that to which fhe was entitled in her own kOff.Ex.aoz. rights If there be feveral executors, or adminiflrators, they are regarded in the light of an individual per- fon. They-have a joint and entire interefl in the teftator's effeds, which is incapable of being di« vided ; Ch. VIIL OF SEVERAL EXECUTORS, 8cc. o_ vided ^ ; and, in cafe of death, fuch interefl fliall ' Com. Dfg. veil in the furvivor -. Dy"'-"^" b"' "* 3 BacAbr. JO. So alfo an executor of an executor, in however "1 9 Co. 36. remote a feries, has the fame interefl in the goods fupia 16. of the firll teftator, as the firft and immediate exe- ^ n ' Com. Diff. CUtor °. Admon. G. c)*r. Ex. 259. . II Vin. A\w. An admmiltrator ae bonis non^ has alfo the fame 4*°- 4 Bum intereft in fuch of the effefls as remain unadmini- ^ ' *^^^* flered, as was vefled in the executor, or antecedent adminiiirator. ■ An executor de Jon tort has no interefl: whatever in the property, and therefore can maintain no ac- ° n vin Abr. . . 1 ,1 T r 1 215. It Mod. tion in right ot the decealed ". 471,472. 2 Bl. Com. 507- But if the executor dc fon tort take out admini- p h vin. Abr. ilration, it fhall to mod purpofes qualify the wrong, i2'Mo^d.^47r, and veil the fame intereft in him as in other admi- 4-7^. Moore 126. 2 Ventr. niftrator?, and confequently fuch as fliall have rela- 179.3 Bac.Abn tion to the time of the inteftate's death \ Kcp'.^jgo!^""* 2 H. Bl. aS. ( J9I ) BOOK in. OF THE POWERS AND DUTIES OF EXECU- TORS, AND ADMINISTRATORS. CHAP. I. ■ 4 BiirnEccl.L. vidl'sModSt ^n point of law, neverthelefs, it is the duty, both of an executor and an adminiftrator, of their own istat.2iHen.8. ^ccord', to exhibit an inventory; the former, within ^ ^' ^ "^'' a reafonable time, the latter, at the time limited by the condition of the adminiilration-bond. And the courts formerly confidered the neglect of this duty in a light unfavourable to the party, efpecially where there was a deficiency of aflets ; and although not couclufive againft him, yet as expofmg him to im- putation ; and that the omiffion was the lefs to be excufed, fmce neither at law nor in equity is the inventory fmal ; it is permitted him to fliow that the aflets come to his hands amount, from un- forefeen circumflances, to lefs than he may have m4BiiniEccr. originally ftated them "'. But although fuch be the ^252. a t . j^^^j obligation impofed on an executor or admi- nifl:rator, in every cafe, to produce an inventory, yet the pradice of the fpiritual court feems in this point to have been gradually relaxing: at one period, it appears to have been ufual for the executor or adminiftrator, after probate or adminillration, to exhibit an inventory, which was confidered as authenticated by the general oath he had taken for the due execution of the will, or admrniflration of the effects, and for exhibiting a true inventory. Yet 19, 344- o Ex rclat. Ch. I. OF THE INVEMTCRY. Yet then he was liable to be called upon to exhibit a farther inventory on his fpecial oath, at the fuit of a party interefled ". But according to the prac- j,^/."! 165? ' tice which at prefent prevails, neither the executor 2 Mod. '18* not°"tn Yet a creditor may ftate objeftions to the inven- tory, which the party is bound to anfwer upon oath ; but no evidence is admifTible to contradid the anfwer. If the creditor be flill dififatisfied, he baFonbT.+TS. ^^^.y have recourfe to equity for more effedtual re- nct.(d;. J,^ SECT. III. Of his collecling the offers. THE next duty of the executor or adminiflrator is to colledl all the goods and chattels fo invento- ried. For that purpofe, the law inverts him with large powers and authority. As reprefcntative of deceajfed, we have feen, he has the fame property in the efl'efts as the principal had when living ; he a a Bl. Com. has alfo the fame remedies to recover them '. 510. i-iargr. Within a convenient time after the teftator's death, Co. Litt. 309. • 1 1 • 1 or the grant of adminiftration, he has a right to enter the houfe defcended to the heir, in order to t1yid.fupr.24. remove the goodb^, provided he do fo without vio- lence ; as, if the door be open, or at leaft the key be in the door; and, although the door of entrance into the hall and parlour be open, he cannot there- fore juftify forcing the door of any chamber tq Ch. I. OF COLLECTING THE EFFECTS. to take the goods contained in it ; but is empower- ed to take thofe only, which are in fuch rooms as are unlocked, or in the door of which he fliali find the key. He has, alfo, a right to take deeds and other writings, relative to the perfonal eflate, out of a cheft in the houfe, if it be unlocked, or the key be in it; but he has no right to break open even a cheft. If he cannot take poiTcifion of the effefts without force, he mufl defiit, and refort to his acllon ^ On the other hand, if the executor ' ^^' ^-." ''^' 9.V n ^ in- or admlnldrator, on his part be remifs in removing Abr. 167. the goods within a reafonable time, the heir may j ofr. Ex. 93, diftrain them as damage feafant ''. Piowd. z8o, The executor has alfo a right, on producing the probate at the bank, and caufing fo much of it as relates to the teflator's interefts in the feveral {locks to be entered in the proper offices, according to the ads of parliament which regulate this fpecies ^'^i^^*^',!^' of property, to have the fame transferred from the teftator's name into his own, or to fuch perfon as he fliall appoint ; and even in the cafe of a fpecific bequefl of ftock, the executor is entitled to call upon the bank for a transfer; and on their refufal, they are fubje£l to an aftion at his fuit. It is per- fonal property, and fubjecl to all its incidents*. ^TheB^nkof The adminiftrator has the fame right on producing Mofft 3 Bro. the letters of adminiflration. L".^;'^-*^''- ■ id. alto Doug!. 524. The executor or adminidracor has likewlfe au- thority to fell or difpofe of the dtceafed's efFecIs, and 200 ^^ COLLECTING THE EFFECTS. Book III. and convert them into ready money, to anfwer the 5xo.VvS: purpofesofthetru{l^ Abr. 270. em. 445' j^^ jg entitled to recover by a£lion, or other le- gal remedies, or by fuit in equity, whatever pertains KVidfupr.iao. to fuch perfonal eflate ^ He is alfo empowered to redeem fuch chattels as ftVuifupr.126. the deceafed may have left in pledge \ CHAP. ( 201 ) CHAP. II. OF HIS PAYMEWr OF DEBTS IN THEIR LEGAL ORDER. SECT. I. Of debts dm to the crown by record y orfpecialty — Of certain debts by particular Jiatutes. ^""HE difpofition of the property when thus col- "*• lecled, and which conftitutes aflets, is next to be difcufled. And, firft, I fhall treat of the ap- plication of the aflets in the order prefcribed by law. He mullj in the firft place, pay all funeral charges, and the expences of proving the will, or of taking out letters of adminiftration \ Secondly, he muft pay * *i^off.Tx. the debts of the deceafed, and in fuch payment he i30> is'* muft be careful to obferve the rules of priority ; for, if he pay thofe of a lower degree firft, on a de- ficiency of aflets, he muft anfwer thofe of a higher out of his own eftate ^. The more clearly to trace ^ ~ Bi. Cora, the order which the law prefcribes for the payment of debts, and which the executor or adminiftrator is thus bound at his peril to obferve, it is neceflTary to confider them under a variety of clafles. They are diftinguifhed, then, firft, into debts due to the crown, by record, or fpecialty : fecondly. Cer- tain debts created by particular ftatutes : thirdly, Pebts 5^1- 20 2 ^^ DEBTS DUE TO THE CROWN Book III. Debts of record in general : fourthly, Debts due by fpecialty : fifthly. Debts due by fimple contrad ; firft, to the king j and fecondly, to a fubjed. To all other debts of whatever nature, as well of a prior as of a fulSfequent date, fuch as are due to c ^, vin. Abr. ^■'^^ crown, by record or fpecialty, claim the prece- 295.3Bnc.Abr. dence^ 79. Off. y.-x. 1 3 J. ! ro El^z. "j^l^oTc'l' Debts fecured to the king by fpecialt)^, are of I Saik. 80. the fame degree with thofe of record: for by the ftat. 33 //. 8. c. 39. it is enaded, that all obliga- tions, and fpecialties, taken to the ufe of the king, ••ofi. Ex. 134. fl'^all be of the fame nature as a ftatute-ftaple ''. The king, by his prerogative, is to be preferred before other creditors, inafmuch as the law regards the royal revenue as of more importance than any *^ ' C)ff Ex'^ private interefl '. Therefore, an executor, whofe 133' teftator was indebted by matter of record to the king, may plead to an aftion brought by a judg- ment creditor, or any other creditor, that the tef- tator died thus indebted to the crown, and hath not left aflets more than to fatisfy the fame, and fuch plea fliall be valid ; but the defendant muft fhew the com.Dijr^^'* record in certain*. So if the creditor proceed to Adaion. C.2. fue out execution on a ftatute-merchant, or ftaple, the executor on fetting forth this matter, will be E 3Bac. Abr. ,. , 7- , -r^ , ^ , , 79. Off. Ex. relieved on an audita querela ^. iiut the debts due '*"^^* to the crown, which are fo privileged, mud be fuch as are due by matter of record, or by fpecialty, h B.ic Abr ^'^^^ch, as we have juft feen, are of the fame na* 79. Off. Ex. ture \ And, therefore, fums of money owing to the i33>i3i- Ch. IL BY RECORD OR SPECIALTY. the king on wood fales, fales of tin, or of other his minerals, for which no fpecialty is given, fhall not be preferred to a debt due to a fubjeft by matter of record. Hence, though fines, and amercements in the kinc-'s courts of record are clearly debts of record, and entitled to fuch preference, yet amerce- ments in the king's courts baron ^ or courts of his honours, which are not of record, have no fuch priority ; nor have fines for copyhold eftates, nor money arifing from the fale of eftrays within his manors, or liberties : for thefe are not debts of re- cord. So, whatever accrues to the king by attain- der, or outlawry, is confidercd as a debt by fimple contrad before office found ; and, although debts due to the perfon outlawed, or attainted, be by obligation, or other fpecialty, and the outlawry or attainder be of record, yet the law does not recog- nife the king's title before office found : for, till then, it does not appear by record that any fuch debt was due to the party '. So, if the king's debtor by fimple contrad, be outlawed on mefne procefs, the debt is not altered in its nature, nor fhall it have precedence, as i( the outlawry be fubfequent to the judgment, and the debt therefore of record ". Nor does the preroga- tive extend to a debt affigned to the king. There- fore it was held, where the obligee of a bond, alter the death of the obligor, affigned it to the king, that the obligor's executors were warranted in la- tisfying a judgment recovered againft him in his life-time in preference to the bond \ So, alfo, the arrears 203 h 3 Bl. Com. 25- i ^, Bac. Abr. 80. Off. Ek. i'?^.. 'v om.Dij. Admon. C.2. k Com. Dfg. At'.mon . C.i. I S.Vik. 80. 11 Viii. nbr. 291. 1 Com. Dig. Atliiior 1. C.i. 11 Vin. Abr. 301 L; iiic 65. 204, ^^ DEBTS OF RECORD IN GENERAL. Bo6k IIL arrears of rent due to the crown, whether It be a fee-farm rent, or a rent referved on a leafe for « 3Bac.Abr. years, fliall, it feems, be regarded in the light of ,2}, ' "' a debt by fimple contraft ". Such is the law in regard to debts due to the crown, by record, or fpecialty. Next, in order, are certain fpecifiic debts, which, fubfequent to thofe of which I have been treating, are, by particular ftatutes, to be preferred to all others, as, forfeitures for not burying in woollen, by 30 C^r. 2. c. 3. : money due for letters to the So. in not. poll officc, by g ^n72. c. 10.: and money due 4 Burn Ecd.^ from the overfeers of the poor, by 17 Geo. 2, L- 3o»- c. T,S. \ SECT. IT. Of debts of record in general. — Of judgments : and herein of decrees. — Of ftatutes^ and recognizance's, — ' Of docqitetting judgments. TO thefe fucceed debts of record In general, of which there are two clafles : firft, judgments in courts of record : and, fecondly, ftatutes and recognizances. The former are of a higher na- ture, and of a greater dignity, than the latter ; for 205 Cm. If. OF JUDGMENTS. for judgments are recovered on judicial proceed- ings in litigated cafes, and in a regular courfe of juftice ; and the records of fuch judgments are en- tered on publick rolls, entruded to the cuftody of a fworn oflicer ; alfo judgments confeflfed by the teftator, are on the fame footing ; for, though, in point of fact, they were voluntarily acknow- ledged, yet they, as well as other judgments, are prefumed to have been given adverfely, the law go^ n'tf e^^"^ fuppofes, quod judicium rcdditur in invitum^. i3'''- i.^9- *^*^ i -/ Com. Dig. Admon. C. 2. Hence iudo-ments, as well fuch as were reco- ^"'^•Abr.9 6. -* ° Cro. Lliz. 793. vered againft the teftator, as thofe which were con- felTed by him, are in a precedent degree to flatutes and recognizances ; for ftatutes and recognizances, (of the nature of which I fiiall more fully fpeak,) are entered into by the confent of the parties; the former, and, till enrolment, the latter, are car- ried in pockets, or depofited in efcritoirs, in ^ 4 co. 60. fliort, are in the private keeping of the creditor eJ^", 3^/.* fSb! himfelf. Nor does priority of date make any dif- ^95- n Vin. ference in favour of fuch laft mentioned fecuri- noL'^^'^'^B'- ties ^ An executor is obliged to difcharge a I'^ter Com.i6o.3+.. judgment, in preference to a ftatute or recoo-ni- '= Off. Ex. 137. r- . " Com. Dig. zance, prior m pomt of tmie '. Admon. c.z. 4 Co. 59, 6a. Such is the preference to which judgments, as diftingiiilhed from the more private records, are entitled. Nor is this privilege confined to judg- ments in the courts of Weftminfter-hall, but ex- tends itfelf to judgments in all other courts of re- cord j that is to fay, courts in cities, or towns corporate, r OF JUDGMENTS. Book III. corporate, having power, by charter or piclcrip- tion, to hold plea of debt above forty fhillings, as, in London, Oxford, and other places : for, although, in the firfl inftance, fuch goods only can be taken in execution on thofe judgments as lie within the jurifdidion of thofe refpedive courts ; yet, formerly, if the record were removed into the chancery, by certiorari^ and thence, by mittimus, into one of the fuperior courts of law, execution might have been had upon the defen- ^Off. Ex. 139. dant's goods in any county in England '^ ; and, now, by the ftat. 19 Geo. 3. c. 70., any of his ma- jefty's courts of record at Weftminfter, may, on a proper application, caufe the records of fuch judgments to be removed thither, and may ilTue writs of execution againft the perfons or effeds of the defendants, in the fame manner as on judgments obtained in thofe fuperior courts. So, a judgment in 2. pie poudre court, which is a court of record, incident to every fair and market, and «3Bl.Com.32. is the loweft court of juftice ^, known to the law f II vin. Abr. of England, claims the fame preference^ ; and, by 397. a Vein. j}^g above ftatute, its procefs, after judgment, Ihall be aided in the fame manner. Nor does the priority of a judgment, in any degree, depend on the original caufe of aftionj a judgment againfl the teftator on a debt by fmiple contraft, is of the fame g vid. 2 Bi. nature as a judgment on a fpecialty ?. So, if the VhrAb/i'o tellator were bound in a recognizance, on which Com. Dig. 2i fcire facias was brought, and judgment given Fitzg. 76. " againfl him in his life-time, although this judg- ment be not quod recuperet, as in cafe of actions 7 on Git. ir. or JUDGMENTS. ' 207 on debt, but quod haheat executionem^ yet, fince execution is the fruit and efl'ect of all judgments, this is, in fubftance, of the fame nature, and may ^ Off. Ex.159, well be clafied as a debt by judgment ''. A.imon.i-. 2. Vid.alloYclv. Nor, as between or.e judgment and another, is priority of time material. The judgment_jcredi- tor, \vh o Jirfi: fues out a fcire fac ias^ mu H be pre - fer_red ; but, be fore fuch writ be fued out, the executor has it in his eledion, where there are two Judgment credicors, to pay w^hich of the m_ he pleafes firft ; and, if each bring 2, fcire facias on his judgment, yet the executor may confefs either adlon, at his option, and that, although iho. fcire facias v/ere brought by the one crediior before the other'. So, whereafter verdicl for the plaintiff ' Off. Ex. v^?.- in a/fianpfUy and before the day in bank, the de- 299. 301. fendant died, and judgm.ent was entered the next term, purfuant to the ilat. 17 Car. 2. r. 8. on fcire facias brought again fl the executor, it was held, that the judgment fliould by relation be regarded as given in the life- time of rhe teilator, and be payable accordingly ''. But where the defendant in ^ Com. Dig. an adion on (imple contraft, atter an interlocutory n-Vin. Abr. judgment, died, and on fcire facias againff his ad- ^77. 1 Mod. miniflrator, a writ of inquiry ilTued, and damages afleiTed, judgment was entered up againft the in- teftate ; the court inclined to the opinion, that the judgment purfuant to the (fat. 8 & 9 W. 3. c. 11. ought to have been encered up, not againfl the in- teffate himfelf, but againil his_repref entatr\ 'e ; and was therefore not pleadable by the adminiftrator 6.S.C. -,Qg OF JUDGMENTS. Book III. 1 II vin. Abr. to nil adlon brought againft hmi_on a bond '.' In rc?m! Dif'.*^'' ^'^^'^^ manner, where a defendant died after a writ Pleader. 2D.9. of enquii'y executed, and before the return of it, it was adjudged that -a fcire facias hiy againd his executor, to fncw caufe why the damages alTcfled ra I wiir. 243- fliould not be recovered "'; nor in fuch cafe fliail the JLu|£ment, if on fimple contract, be preferred to a debt by fpeciahy. A judgment figned at any time during the term, or the vacation immediately fubfequent, re- lates back to the firft day of the term, akhou^h the defendant died before the judgment was ac- tually figned ; and an execution, tefled the firft day of the term, may be taken out upon it againll L^jgmcid!' ^^^ goods ". But, if the writ of execution be not 7 Term Rep. tefled till after the defendant's death, it is irregu- lar, and, in fuch cafe, it is necelTary to revive the 368. Vid. aHo judgment by fcire facias againft his reprtfen- 7 Term Rep. tative °. 24. p^: Bac. Abr. 81, Orf. Ex. 137. ^ 11 Vin. Abr 297- in not. 1 Freem, 10-5. Vid, , L. ofNi, Pr. 127. ' 11 Vin. Abr J9'- 2 Fonbl. 406. 2 Vern. 540. Doujjl. I, If a judgment be kept on foot merely to de- fraud other creditors, or, if there be any de- feafance of it in force, fuch judgment fliall not avail to preclude them from their debts p. A judgment quod computet, ia the obfolete ajc- tion of account, is of a nature too incomplete to be privileged like other judgments''. • A judgment in a foreign country is regarded, ui our court&j nierely as a debt by fmiple contraft ^ Nor, Ch.ii. of judgments. 209 Nor, as we have juft I'een, are judgment s agaliifl: an executor co mprehended within the fame claf s as thofe which are recovered agai nfl the teltator ^. • x. 3 • In cafe 2.fcir€ facias be brought on a judgment after the executor has exhaufted the afTets in the difcharge of fuch of the king's debts as are above- mentioned, or in the fatisfadion of other judgments, the defendant may plead generally, that he hath fully adminiftered ; and on that plea he may give evidence of thofe fa£ls, and that will be a fuf- ficient defence y. But if an action be brought yofr.Ex.13g. •againft an executor on a fpecialty, or other debt of ^ I'cnn Rep. an inferior nature, and a judgment againft the tef- ^ Jf^c.^Abn'go. tatbr remains unfatisfied, it muft be pleaded fpe- & in not. Cially ^ I Ld. Riym. -' 67". Salic. 51 1. 2 SauuJ. JO. It is held, that an executor by bringing a writ of error on a judgment, may poftpone it to a ftatute, and the fatisfaclion of the debt on the ftatute, pend- ing the writ of error, fliall be no dcvajlavit, be- caufe it was out of his power to withftand the payment of it. The eifed of the judgment is by a ,,Y\n. Abr. the writ of error totally fufpended \ ?,^.^^; "' ""'^• J ^ i.-iii. 298, 199. in not. Cro. But, if no writ of error be brought on the judg- Ji^i ^J; j^',, ment, and a creditor by ftatute take out execution, Yeiv. 29. the executor is bound to avail hiinfelf of his remedy by audita querela ; in order to fecure a fund for the fatisfaftion of the judgment^: and feme au- fcff. £x, 137. thorities maintain, that though a writ of error be brought on the judgment, if he lail to refort to an P 2 audita OF JUDGMENTS. Book III. 2IO < Off. Ex. 137. audita, querela^ and fufFer the ftatute to be executed, in not. vid. jf ^\\\ 5g ^ devajlavit '. Cro.Eaz.8j2. ^ Nor is an executor bound to take notice of judgments in the courts of king's bench, common pleas, and exchequer, unlefs they are docquetted ; that is, abllrafted and entered in a book, purfuant to the flat, of 4 & 5 ^F. & M. c. 2o\ Accord- ing to the true conflrudtion of that acl, a judgment not docquetted is put on a level with fimple con- tratSl debts \ If the executor have notice of the judgment, although not docquetted, he may per- haps be warranted in giving it a preference as a judgment, but if he in that cafe pay other debts firfl, he is clearly not liable as on a devq/lavU; thus, to charge him, it feems that no other than the prefcribed notice would be fufficient ^ And a plea of p/ene admhiifrravit to an aftion brought on inch a judgment, v.ill be fupportcd by evidence of payment of debts by fpecialty, or by fimple con- trad «. A 3 Bl. Com. 397- • Hickey v. Hayter admt- niftratrix, 6 Term Rep. 3S4. * Per Lord Kcnyuii C. J. ibid. t 6 Term Rep. 3^'7> 3 U. On the fame principle, a judg ment not docqu et- ted according to the directions of .the ilatute, can- h Steel vRoke, not bFpTeaded to an action on fimple co ntract ^ But of fuch judgmentsjvhen jocquetjcd, an ex- 307. — — y I3 «.ic.Abr.8j. ecutor fhall be prefumed to have coornizance '. in not. Cro. ^__ * — — " — _ Eli.'. 79^. viJ. The provifions of the ftatute do not extend to judgments in inferior courts of record, yet the executor is bound to take notice of them at his peril ". A decree 3 Mod. 1 1 5. II Vin Abr. 874, «9i. >■- II Vin. Abr 494. 3 P.Wins, 117. Off. £jc. Ch. II. OF DECREES IN EQUITY. 211 A decree in a court of equity is, in refpeft to the courfe of adminiftering affets, equivalent to a judgment at law, and fhall ftand in the fame order i „ vin. Abr. c _t 1 33'' 'I Bac. of payment J. Abr.s1.3Lev. 355. 1 Vef. 496. In general, aftual and exprefs notice of a decree ^ plwms'. 401! is neceflary to make it binding on purchafers. I^Pj^^^^^^jJ; Notice by implication, in refpect to them, is effec- 2,7. 4 Bro. * H C ^87 See tual only where a fuit'is depending. It never was affo'^ Fonbl. the doctrine, that a decree, after a caufe is ended, 4ia. not. (s). fhall be conftrudive notice to purchafers ; but it is the pendency of a fuic that creates fuch notice in their cafe, on the ground, that a fuit is a tranfac- tion in a fovereign court of juftice, and every man is prefumed to be attentive to what pafles there"', noMn"^i"pf ' and, alfo, on the policy of preventing the transfer Wms. ^sa. of rights in litigation. But an executor fhall be 3 Atk." 391. affected with implied notice of a decree obtained ^"'^'- ^7^" againft the teflator ; therefore, where an executor paid a debt due by fpecialty, before a debt due by a decree, of which he had no adual notice, he was n3Bac.Abr.8r. decreed to pay it over again out of his own eftate". ^p^y;^^^" g^* Although an executor cannot plead, or give in evidence at law ° a decree of a court of equity, yet " "?'":''^^''' , . 291. rreem. he Ihall be proteded, and indemnified in paying Rep. 333, 334- due obedience to fuch decree, and all legal pro- ceedings againfl him fhall be flayed by injunc- o p 3 p. Wms. "On ^ 401. not (F). I Vern. 143. But if the decree be not conclufive of the mat- ters in queflion, as if it be merely to account, and * P 3 does 212 OF RECOGNIZANCES. Book HI- does not afcertain the fum to be paid, It is analo- gous to a judgment quod computet at law ; and that is no complete judgment till the account be dated. Therefore, it has been holden, that, pending a bill in equity, and after fuch decree, an executor may- pay any other debt of a higher, or an equal nature, q z Atk. 385. in cafe the affets be legal, although he has no power \ S^a^k. 507! of fo doing as againft a final decree ''. II Vin. Abr. 297. 3 Bhc. Abr. 83. Next in rank to judgments, are recognizances 'Off. Ex. i4o. and ftatutes ^ aBl. Com. 511. Com. Dig. Admon, c. %. ^ recognizance is an obligation of record ; it ro.jac.9.35. ^^^ ^^ entered into by the party before a court of record, or. magiftrate duly autharifed, conditioned for the performance of a particular ad ; as to ap- pear at the aflizes, to keep the peace, to pay a debt, or the like. A recognizance is in moft refpeds like another bond. The chief diflindion between them is, that the latter is the creation of a new debt, or "an obligation de novo \ the former is an ac- knowledgment on record of a prior debt, of which the form is: " That A.B. doth acknowledge to owe " to our lord the king, to the plaintiff, to C. D. or " the like, the fum of ten pounds," with condition to be void on performance of the thing flipulated. And in fuch cafe, the king, the plaintiff, or C. D. is called the cognizee, as he that enters into the recognizance is called the cognizor. This inftru- ment being either certified to, or taken by, the of- ficer of fome court, is authenticated only by the « a Bl. Com. jg^ord of fuch court, and not by the party's feal % 8 - Of 213 " Vid. 3 BI. Cn. IT. OF STATUTES. Of fecurltles by flatute there are three fpecies : ftatutes merchant, ftatutes ftapic, and recog- nizances in the nature of ftatutes ftaple ; and, though they are fiillen into difufe, yet, as they are frequently alluded to in argument, efpecially on this fubjed, it feems neceffary to give fome expla- nation of them ". In order to form a diflinft no- Com. 160. tion of their nature, we mud recur to different a6ls Eng*^Li*i6o'. ' of parliament. ~ '^v- * Reeve's ^ Hift. Lng. L. 2,5:5, 15 4 Siill. By ftat. iT,E,'i. called the ([:\Uite de moratori- Lc^. 15.5,156. bus, a merchant is empowered to caufe his debtor to appear before the mayor of London, or before fome chief warden of a city, or of any other town which the king (hall appoint, or before other fuffi- cient men, chofen and fworn thereto, when the mayor or chief warden cannot attend, or before one of the clerks, to be appointed by the king, and acknowledge the debt, and the day of payment. And the recognizance, that is, fuch acknowledge ment, fliall be duly entered by a clerk on a double roll, of which one part fhall remain with the mayor, or chief warden, and the other be depofited with the clerks; one of whom, with his own hand, fhall write an obligation, to which writing the feal of the debtor {hall be affixed, with the king's feal, provided for that purpofe ; which feal fhall be of two pieces, of which the greater piece fliall remain in the cuftody of the mayor, or the chief v/arden, and the other piece in the keeping of fuch clerk ; and, if the debtor do not pay at the day limited, the merchant fliall again appear before the mayor, - P 4 and 214- OF STATUTES. Eook III. and clerk, with his obh'gation ; and, if it be found by the roll or writing, that the debt was acknow- ledged, and the day of paynicnt expired, then the ftatute prefcribes certain fteps to be taken for the recovery of the debt. This obhgation is called a llatute merchant, In regard to the kind of (latutes fecondly above- mentioned, the flaple, that is to f^iy, the grand mart for the principal commodities and manufadures of England, was, by the flat. 27 E, 3. held in certain trading towns. And, in order that contracts made within the fame might be more effeftually enforced,, that acl directs a courfe fnnilar to a flatiUe mer- chant, and enacts,, that every mayor of the flaple fliall have power to take recognizances of debts arifing on fuch contrads, in the prefence of the conflables of the flaple, or of one of them ; and, that in every flaple there fnall be a feal remaining in the cuflody of the mayor, under the feals of the. conflables ; and all obligations which fliall be made on fuch recognizances, fliall be fealed with that feal. Such obligation is denominated a flatute flaple. The benefit of this mercantile tranfaclion is ex- tended to all the king's fubjeds in general, by vir- tue of the flat. 23 //. 8. c. Q. by which it is enafted, that the chief juftice of the king's bench, and the chief juftice of the common pleas, and in their abfence, out of term, the mayor of the flaple of ■yVeflminfter, and the recorder of the city of Lon- doDj Ch. it. of recognizances and statutes. ryje don, jointly, fhall have full power and authority to take recognizances or acknowledgments of the king's fubjefts for the payment of debts, according to a form fpeci^ed ; and that every obligation fo acknowledged fhall be fealed with the feal of the cognizor, and alfo with fuch feal as the king Ihall appoint for the fame, and with the feal of one of fuch juftices, and be fubfcribed by him, or with the feals of fuch mayor and recorder, with their names fubfcribed. The ftatute then directs, that fuch recognizance fhall be duly inrolled in a manner fimilar to the fl.atute merchant, and provides, that in default of payment of the debt contained in fuch obligation, the cognizee fhall have the fame advan- tages in every refpecl, as in the cafe of an obligation by ftatute flaple. The obligation purfuant to this acl is ftyled, a recognizance in the nature of a fta- tute flaple. Such are the three fpecies of ftatutes. Although recognizances are entered on the rolls of the king's courts, while ftatutes are configned to the cullody of the party (and hence are called pocket records'}, yet both fpecies of fecurities tjCo. is.b. having been entered into voluntarily, and privately, are regarded as equal jn their nature, and payable in the fame order ". Nor is it material in regard " Off. Ex.140. to payment by the executor, which of them are prior, or fubfequent in point of date. Therefore, where there are many cognizees, he may prefer a fubfec^uent to a prior ftatute, or recognizance, for they 2l6 OF RECOGNIZANCES AND STATUTES. Cook III. they all equally affe£l the perfonal eftate; although, as to lands, the firlt in point of time {hall have the •Off. Ex 140. f „ ., Hac.Abr. 8i. preference ^ Koll. Abr. 915. Admou. c. 2. If the flatute or recognizance be defeafanced for the payment of a fum of money at a day certain, although the day be not arriyed, yet It is a debt of the fame clafs with other ftatutes ; for it is a pre- fent, and immediate duty, to be difcharged at a » Ti Vm. Abr. future period *". So, where a teftator acknowledcjed Rep. 405. a recognizance in the nature or a itatute Itaple, or awg . iO:>. Yi'hich the defeafance, after reciting, that the tefta- tor, and cognizee as his furety, were bound in an obligation to J. S. for the debt of the teftator, with a condition for payment of one hundred pounds at a future day, provided, that, if the teftator, his executors, or afiigns, fhould pay the one hundred pounds to J. S. at the day, the flatute fhould be void ; it was held, that although the day of payment were not yet come, and it were a collateral fum to be paid to a ftranger to the flatute, and not to the cognizee, and therefore no duty to him, and al- though the heir of the teflator might polTibly pay the money at the day, yet, inafmuch as the flatute was for the payment of a certain fum of monfey, with which by intendment the executor would be charged, he might, although before the day of pay- ment, plead this flatute in bar to an aftion of debt yjiVin. Abr. on a bond ^ But, if the teftator in his life-time ^^^ ' ' enter into a flatute for performance of covenants, and none of them are broken, to an aclion of debt on fpecialty, the executor cannot plead this flatute ; 3 for. 2 17 Ch. II. OF RECOGNIZANCES AND STATUTES. for, perhaps, the covenants may nevt-r be broken, and it would be unreafonable to allow him to elude a jult debt on a contingency which may never happen ^ So, if it be for payment of money when * "^ ^^^^ ^^f- an infant fhall come of age, it fhall be no bar to other debts, for the infant may die before that time '. 'y- """■ If a ftatute be joint and feveral, the cognizee may ele6t to fue either the furviving oognizor, or the executor of him who is dead, or both, in fepa- rate a£lions. If it be joint only, the furvivor alone i-? liable *> ' " "VinAbr. ^^ "^'^^^ • a88. I Mod. i6 The remedy on a f^atute is more expeditious than on a recognizance ; fmce execution may be taken out on a ffatute without a fcire facias^ or other fuit. But in cafe of a recognizance, if a year pafs after the acknowledgment, no execution can be fued out againfl the party without 2, fcire facias^ and, in cafe of his death, although a year be not elapfed, yet a fcire facias muft be fued out againfl his executor ", « Off. Ex. 140. If a fcire facias be fued out on a recognizance, an executor fhall not defeat it by a voluntary pay- ment of a debt by (tatute-, but, if, before judgment on the fcire facias, execution be fued out againft f II ViQ,.Ahr. able by the executor ^ Of all of which, as well as llg[ ' ' of thofe by recognizance or ftatute, he is bound to « vid. iVern. take notice at his peril ^. SECT. III. Of debts hyfpeciahy^ — and herein of rent : — of debts byfimple contract, THE clafs of debts next in fuccefTion are debts by fpecial contracts; as for rent, and alfo on bonds, covenants, and other inftruments under the feai of the party. Although in regard to rent, the lefTor has a remedy often more efficacious in his own hands, by diflraining; yet, between a debt by obligation, and a debt by covenant for a fum certain, or for da- mages on a breach of covenant, and a debt for rent, there is no diflindion of rank, they are all • ' debts Cm. II. OF DEBTS BV SPECIALTY. debts of the fame degree '. Nor does it make any difference whether the rent be referved by leafe, in writing, or by parol : for in the latter cafe, the rent arifes equally from the profits of the land, and is re garde d as a debt by fpcciaky. Nor is the nature of the debt changed by the determination of the leafe : the contrad remains in the realty, although the right of diftrefs be gone ''. But it is neceflary to confider rent a s_di(]:inguifh- cd into fuch as hath been left in arrear^ the tef- tator, and fuch as hath accrued due fubfequent to his death. 219 'Off. Ex. ,46. i Hl.Com-jii. Com. Dig. Admori. C. i. 3 Burr. 1:84. Seealfo i Salk. 326. ^ 3 Bag. Ahr. 82. 96. 3 Lev. 367. a V^ntr. i?4Com.Rep. ^•7-M5-Comb. 185. II Vin. Abr. 7i?9 in not. Vid. 3 Bl. Com. II. Stat. 8 Aim. c. 14. For rent, which was in arrear in {he teftator's life-time, the executor is liable merely in that cha- racter ; as the teftator's debt he can be fued for it in the detihet only, and to fuch aiKon may plead, that he has fully adminiilered ' : Whereas, for the ' fubfe quent r ent, the executor is in general regarded S'"' ^\ as perfonallY_ refponfibl e. He has no right, as we have already feen '"j to waive the term, for he muft renounce the executdrlhip in toto, or not at all ; and if he enter on the demifed premifes, as bv his office he is bound to do, the leffor may charge hiin as affignee in the deh&t^ and detinet for the rent in- curred fubfequent to his entry °. Wilf. "»Supr. log. I Snlk 197. 7. Off, Ex. If the profits of the land exceed the amount of the rent, as the law prima facie fuppofes, fuch of the profits as are fufficient to make up the rent, fhali be appropriated to the payment of the leffor, and cannot 14; 2 20 OY DEBTS BY SPECIALTY. Book III. cannot be applied to any other purpofe. There- fore, if in fiich cafe the leffor bring an adion againft the executor for the rent, he cannot plead pkne ad?ni?ji/iraz>if, for that plea would confefs a mifap- plication of the profits; fmce no other payment out n 1 Salk. 317- of them can be juflified til! the rent be anfwered ". On the other hand, the profits of the land may be inadequate to the rent. In a variety of cafes, they may be eafily fuppofed infufficient for a given pe- riod, although the leafe may on the whole be bene- ficial. As in refpect to rent for the occupation of premifes from Michaelmas to Lady Day, efpecially> where almoft the whole profit is taken in the fum- mer ; as in the cafe of a leafe of tithes, or of meadow «? Off. Ex. 149. grounds, which are ufually flooded in the winter ". So the profits for a feries of years may be lefs than the amount of the rent, although the leafe for the whole term may be of no fmall value ; as in the cafe of a leafe of woods, which are fellable only once in eight or nine years, and the felling has been very p Off Ex. 149. recent ^. In thefe, and the like inftances, the exe- cutor is perfonally liable only to the extent of the profits,' and for fuch proportion of the rent as fhall exceed the profits, is chargeable merely in the ca- pacity of executor, or, in other words, as far only as he has affets ; and, in fuch cafe, to an action brought by the leflbr againft him in the dei?ef, and detinet, he muft difclofe the matter by fpecial plead- ing, and pray judgment whether he fhall be charged otherwife than in the detinet only, for more than ^i Salk. 317. the adual profits ^, Thus Ch. II. 01^ DEBTS BY SPECIALTY. „ >, Thus the profits of the land are to be applied by the executor, In the firfi place, to the difcharge of the rent, and, if that fund lliould prove infullicient, the refidue of the rent is payable out of the general aflets, and ftands on the fame footing with other debts by fpecialty. Debts by bond, an d_other inflruraents under the feal of the party, are of the fame ciafs with debts for rent ' ; and an execu tor is bound to pay a d ebt ' Off. E::. T415, on fp ecialty be fore a debt by fimple contract, al- thoug lTtTrel^Q nd be not yet due. For the oblif^a- non is a prefent duty, and the condition is but a defeafance of it \ Hence it hath been adjudged, 30" ZeonaJj: that if an action be brought againfl an executor on a fimple contra<5l of the teftator, he may plead that his tellator entered into a bond payable at a future day, and it fhal! cover ailets to the amount of the fum payable by the condition '^. But if the teftator " 3 P^c Abr. die indebted to A. in one fpecialty, and to B. in 315. 3 Lev.'jj. another, and of A.'s debt the day of payment is ca"T^m' ^^'*' paft, and of B/s debt the day of payment is to ^^^^^' a*^- come, the executor has no right to pay B. in pre- ference to A. : Yet if A. forbear to demand or fue for his debt, till the debt of B. become payable, then it is in the ele6lion of the executor to pay which of ?hem he thinks proper '\ By the cuftom "'Off. Ex. 14 j. Qf London, if a citizen of London die Indebted by Adm'on/c. 2. fimple contraft, fuch debt is eqiial to a debt by fpecialty, and the payment of it by the executor ''iBac. Abr. fiiail be binding on the obligor of a bond, though 409. No"y, 53!* a ftranger, and no citizen "". ^"'^ 'J^'"". 5!^- ° 5C0. Sa.b. ij. In OF DEBTS BY SPECIALTY. Book HI. 222 In the adminifli ation of aflets, a contingent fecu- rity, as for example, a bond to fave haimlefs, fhall y II vin. Abr. j. fj-gj^^j {ji ^he way of a debt by fnnple contradl ^. 305. zVern. •' ■' ^ xoi. And, if fubfcquent to the payment of the fmiple contraft debt the contingency fhould happen, it feems reafonable that evidence of fuch payment lliould be admitted on the executor's plea of plene ^oV. Allen, 40", admhiifiravlt^ to an adion by the fpecialty credi- Sed vid. f „ z Guldfb.141- "-"^ * But where the contingency has taken place, al- though the debt confequent upon it has not yet been paid, it may be pleaded to an action by a fimple contract creditor. As, where the teftator had executed a bond to A. in two thoufand eight hundred pounds, conditioned to indemnify him a^ainll another bond for eight hundred pounds, which he had executed jointly with the teflator to B. for the debt of the teftator, in whofe life-time the eight hundred pounds had become due, and were (till unpaid ; on the executrix's difcioling thefe fads in a plea to an aftion of ajfumpftt, and dating that fhe had adminiftered all, except fo much as would fatisfy fuch indemnity bond^ it was •Coxv.jofeph, held to be a fufficient defence \ 5 Term Rep. 307- A bond merely voluntary, fhall be pofiponed to fnnple contract debts which are bond fule owing j but fuch bond, if not to the prejudice of credi- tors, mufl be paid by the executor, and in prefer- ence to legacies. For a bond, however voluntary, transfers a right in the life-time of the obligor ; 6 whereas Ch. II. OF DEBTS BY SPECIALTY. 2 2'^ whereas legacies arife from the will, which takes ^ ^^ ^..^ ^^^ effe£l; only from the teftator's death, and therefore 304, -,05.1 Eq! they ought to be poftponed to a right created in j^^'. ^Ba^!' his life•time^ But an executor has no authority Abr.8i,i?2. to Dav a bond founded on an ufurious contraa, or Talbot. 156. a bond e% turpi caufd. Such payment will amount \^^^[^^',Ym\ to a dcvajlavit, as well ^gainft legatees as againfl l^ep. 23a. creditors ^ ^ ,r- au <= II Vin. Abr. 307. Brow'il. If there be a joint and fe j eral obli.G^atio n, an ex- ^^yJJ^j^'^'^^' ecutor of a deceafed obligor may pay the debt out of the eflate of the tcftator, and plead it to other . actions by creditors on fpecialties. But if the ob- ligation be joint only, there the furvivor raufl be charged oufof his"o\vn efiate, and the executors of the deceafed obligor are not liable on the inftru- ment ^ ^^S- Freem. Rep. 137,. A demand arifmg from a covenant, as I have before obferved, is of the fame nature, whether it be for a fpecific fum, or whether it found merely 1 ^ nnt. ^1- ^ J .. • «3Buvr, 13S0. m damages^, ihus the grantor s covenant ma'' ^ marriag-e fettlement for him and his heirs, that the premifes are free from incumbrances, Ihall rank equally with debts on bond ^ So, to an a<5lion on / 3 Bac. Abr, fimple contract againfl an executor, he may plead ^lo^nVm.Abr. that the tellator entered into certain covenants, . and may Tnew the breach of them, and flate the amount of the damages incurred, and that he has not affets more than to fatisfy them : The plea will be good, although the dama^^es are not liquidated^. ^ ^^ Y'^'r^P^' o ' 5 D _ X ^ 205. 6 Mod. But where the hulband by marriage-articles havmg 144. Q^ agreed ^ II Vin. Abr. a88. 1 Mod. ^24- OF DEBTS BY SIMPLE COm^RACT. Book IIL agreed to fettle one thoufand five hundred pounds per mmum on the iflue, made a deficient fettle- ment, and devifed all his unfettled eflates for pay- ment of debts, it was adjudged in equity, that as the fettlement was of lefs than the ftipulated value, the widow and infant were to be compenfated in damages; but that as the articles made no mention of any fpecific land, nor contained any covenant in reorard to its value, they were to come in after cre- 290. 305. ditors by bond ". 3 Vern. 272. If A. covenant to pay a fum of money, and die before payment, it may be recovered againft his i Cro Eiiz. executors ' : Whereas it has been held, that if he %:,Z. bht-ph. , , . nil •> i-pit. fj90. covenant that his executors Ihall pay the money, no a£lion can be maintained againil them, on the principle, that it could not be a debt of the execu- k II yin.Abr. tor, where it was not a debt of the tellator ■"; but 53a. vfd.'co.''' this latter cafe is of very doubtful authority, for Litt. 386, there alfo the teftator was himfelf bound, and the lien falls upon his reprefentatives, though he him- felf could not have been fued ; and it feems that 1 vid. % T^^rr. on either covenant they are equally refponfible '. Lafl in the order of payment, are debts on fimple contraiSl ; as on bills and notes not under feal, and waBl. Com. verbal promifes "". On contracts of this nature, 511. oiT. Ex. -^^y^^^ ^^^ ^^ ^^ j^j^g ^^^ Ij. fggj^s, be fatisfied be- n 3 Bac. Abn fore debts which are due to fubjefts " ; the wages 80. m not. ^^^ ^£ jQn-ieftJc fervants, and of labourers, appear with great reafon entitled to a preference; but, with the exception of thefe, the executor has a right Ijkewife Ch.ir. OF A CREDITOR'S GAINING PRIORITY. Hkewife in this fpecies of debts, to prefer in payment whichever he pleafcs ^ 225 y 2 Bl. '~orr. 511. I Roll. Abr. 9-7. II Vin. Abr. 2-4. in not. Sheph. Epit. ijZd. SECT. IV. Of a creditor's gaining priority by legal, or equitable procefs. — Of notice to an executor of debts by fpe- cialty, or fimple contra^, SUCH is the order which the law prefcribes to an executor for the payment of debts ; and, al- though he has a right to pay one creditor in pre- ference to another of the fame degree, yet this election may be controlled by legal or equitable proceedings againfl him, of\vhich he has due notice'. ^ off. Ex. 145 Thus, if an adion be properly commenced againft an executor for any fpecific debt, it muft be pre- ftrred by him in payment to others of the fame clafs, Nor, in that cafe, Ihall he be warranted in making »ny voluntary payment of fuch other debts, to defeat the party of his remedy". Yet, although one creditor commence an aftion, if another creditor, in equal degree, commence a fubfequent adion, and firft recover judgment, he muft be firft fatisfied. Hence, an executor has it in his eleftion to give a preference, by con- fefling judgment in the adlion of the one, and pleading fuch judgment to the adion of the other '. But if, for the purpofe of favouring the Q^ 2 claim ^ IT Vin. Abr. 296. in not. % Vern. jioo- 2 Fonbl. 41a. Com. Dig. Admon. C. a. 3 Bac.Abr. 83. ■2. Chan. Ca. aoi. 2Vcrn.62. Off. Ex. 143. 146. e Off. Ex. T45. II Vin. Abr. 296. in not. 301. I Lev. 200. 1 f.Wras. 295. Carter %%%. 2 Vern. 300. a Fonbl. 411, 412. 5 Term Rep. 238, .139- . 2 25 OF A CREDITOR'S GAINING PRIORITY. EookHT. claim of one plaintifF in prejudice to that of an- other, he plead a matter, which he knows to be falfe, the plea flialL not be available, as it fliall be, . II vin ."br. jf ^j^g falfitv exlfl not in his own knowledge, as if 296. i Chan. , , „ /. ri n • d ca. 201. he plead non eft factum tejtatoris ". 2 Vein. 6a. And, even, after an interlocutory judgment, and before the execution of a writ of enquiry of damages, he may confefs a judgment in an adion ' 2 Atk. 385. fgj. ^ (jgbi; Qf equal degree " j for he is, in no cafe, bound againil his will to defend a fuit, and ex- ' Off. Ex. 1^5- pend the afiets in cofls, where the cafe is clear ^ taFonbl.4ia. According to feveral adjudged cafcs ^, the filing cha.u'70. ^s*8. of a bill in equity fnall equally prevent the aliena- 1 Vern. 369. ^ ^ ^c ^ffj-j-g jjs the fillnoj of an original at law. 3 Bac. Abr.iJi. ' ,^ ^9 "^ . , . And, therefore, if a fuit in chancery be initituted by a creditor againff an executor, he cannot juftify a voluntary payment of another creditor of the fame order. But, a decifion, to that elTeft, was reverfed in the Houfe of Lords, principally on the ground, that a decree cannot be pleaded at law to an aftion brought againil an executor on another debt of equal rank. However, it is now fettled, that, though a decree in equity cannot be pleaded at law, it is equivalent, in the adminlflration of. ufiets, to a judgment ; and, therefore, that if a decree have a real priority in 'point of time, not by fii^ion, and relation to the firft'day of term, it fliall be preferred, in the order of payment, to fubfequent judgments, and the executor, as we have feen, Ihall be proteded in his obedience to fuch decree, and all proceedings Ch. II. OF A CREDITOR'S GAINING PRIORITY. 227 proceedings ao:ain{t him at law, flayed by injunc- 'Cuni). 48. tion". So, pending a fuit in equity by one ere- r.ot.F. Forreft dkor, an executor may confefs a judgment at j'^'J^^^'J,"' law, in favour of another creditor of the ia;r.e 8?.' ca.'i emp. Talb. 117. degree '. a Bio. p. c. He may, alfo, confefs a judgment, after a de- ' iP. Wms. cree quod computet^ if before a final decree. Such -^L-mp. xJb. decree quod cojnpuiet, is analogous to an interlo- ^^5- cutory judgment at law; it does not pafs in rcmju- J^-a" x^mp!^' dicatam, until the final decree ''. '^^'b- '^^7- Nor will equity interpofe, where, after an ac- tion brought by one creditor, an executor confefles judgment to another creditor in equal degree^; 8v in^not. '^' even, although the judgment be given on a quan- iP-Wms 295. turn meniii, without a writ of enquiry to afcertain the damages, if they be fo laid, in the declaration, as not to exceed the debt which is really due'", '"I'Vin.Abr. 290- m not. Nor, where a creditor fues an executor at law, iP.Wms.*9s. and in equity, at the fame time, for the fame de- mand, will equity compel him to make his election in which of the courts he will proceed, in cafe the executor be attempting to prefer other creditors before him, by confefiing judgments to them, but will merely reftrain him from taking out execution on the judgment, without leave of the court ". « 3 Pac. Abr. Nor will a mere demand by the creditor diveft the c^ Ca. 277. executor of his right of giving fuch preference ; that effed can be produced only by the procefs of a court of juflice °. Thus, the executor is inverted " Off, Ex. mS' with large difcretionary powers of preferring one (^3 creditor 2 2 8 ^^ NOTICE TO EXECUTOR OF DEBTS. Book TIT. creditor to another of the fame clafs ; and, in cer- tain cafes, he may avail hinifelf of the privilege p II Vin. Abr. ^^j^j-j grreat propriety, and on folid reafons ''. But, ^■Jo.^n. Sid. . ^,^jr- c a- zu Off. Ex. m general, on a denciency or aflets, it were a more * ^' honourable and confcientious difcharge of his duty, 1 Off. Ex.260, as far as he has the power of deciding, to pay debts Com.^19. of equal degree in equal proportions "J. Nor is an executor warranted merely in the pay- ment of one debt before another of the fame order ; he may, alfo, pay a debt of an inferior nature, before one of a fuperior, of which he has no no- »• 3 Bac. Abr. tice ', provided a reafonable time has elapfed after ofl^i. pr. 172. the teftator's death; for fuch payment, if preci- pitate, would be evidence of fraud. Of debts of record, fuppofmg, in the cafe of judgments, they are docquetted, it has been al- ready flated, an executor is bound to take cogni- zance, as well as of a decree in equity : con- » Dyer -i^. in flruclive notice, in refpeft to them, is fufiBcient'; Abi'.83^iniot. but of other fpecies of debts there muft be aftual cro. Kiiz. 793. notice. z Vern. 88, 89. Seel vid. L. ot s^MocVif- ^^ ^^^ b^^^ afierted, that fuch notice muft be by t Bac Ab- ^^^' ' » ^^^ ^^ ^^ perfectly clear, that an executor, S3 in not. if he be by any means apprifed of a debt of a Vid.^Fitzgib. higher degree, would not be juftified in exhaufling 77' the aifets in the difcharge of one which is inferior, yet, unlefs he had fome notice of the former, he incurs no rifque by the payment, after a competent • time, of the lactqr. Hence it has been held, th^t aa Ch. II. OF NOTICE TO EXECUTOR OF DEBTS. ^ ^ ^ an executor may plead a judgment recovered againft.him on a fimple contract, to an a6lion of debt on a fpecialty, if he had no notice of fuch fpeciaky"; and may, even, vokmtarily pay, with- g/ ,^^J;-^^^''' out notice, fuch inferior debt, in exclufion of the 2 Show. 492. fuperior, and on a very jull principle ; for, other- L.'ofN.p.778. wife, it might be in the power of an obligee to i''^^o- 76. ruin an executor, by fupprefling a bond ilntil all the affets were expended in the payment of fimple contraft debts ^^ And, indeed, after a fuit is com- J,'^ ^ q J^i^l''^ menced, yet, before he has notice of the plaintiff's ms- Vi^i- 3 demand, he is warranted in paying any other ere- ''^^' "^' ditor". On the other hand, an execucor is not ''Off. Ex. 145. authorifed to confefs a judgment for a debt of an Finch l! 79". inferior nature, if he has notice of the exiftence of f^^^^J ^Lhrl a fuperior. Thus, where an executor to an aftion i?^- on bond, pleaded a judgment confelTed by him on the preceding day, on a fimple contract debt, the plea was difallowed, on the ground of its not averring:, that the defendant had no notice of the y Sawyer v. '^ Mercer, i plaintiff's demand y. Term Kep, 690. If, ignorant of the exiflence of a bond, he con- ^ Com. Dif . fefs a judgment on a fimple contract, and, after- 3 L"v"ii4.^' wards, iudement be given ap-ainft him on the bond, , ^ ^. 'Jo . Com. Dicr. he is bound, however infufficient the affets, to fa- Admon. ..'; %. tisfy both the judgments, for he might have plead- , 'sid.4oV''' ed the firft, if he had not had affets for both ^ ^ Lev. 261. So, alfo, a judgment muff be fatisfied, though b Com. Dip. recovered againft one executor only where there are cro'E']-;^^^^^^ feveral % or recovered againft one executor by thq i Sid. 404. r , . .n • /--k Sed vid. Cro. name Oi an admmiitrator, or vice verja ^ Eiiz. 41, 0^4 CHAP, ( 230 ) C H A P. III. OF J!N EXECUTOR'S RIGHT TO RETJIN A DEBT DUE TO HIM FROM THE TESTATOR.— UNDER WHAT LI Mil AT IONS. F a debtor appoint his creditor to the executor-, fhip, he is allowed to retain his debt, in pre- ference to all other creditors of an equal degree. This remedy ariles from the mere operRtion of law, on the ground, that it were abfurd and incongru- ous that he fliould fue himfelf, or that the fame hand fliould at once pay and receive the fame debt. And, therefore, he may appropriate a fufficient part of the alfets, in fatisfadion of his own demand; otherwife he would be expofed to the greatefl hardiliip j for, fince the creditor who firit com- mences a fuit is entitled to a preference in pay^ ment, and the executor can commence no fuit, h*e muft, in cafe of an infolvent ellate, neceffarily lofe his debt, unlefs he has the right of retaining. Thus, from the legal principle of the priority of fuch creditor as firfl: commences an action, the dcdrine of retainer is a natural deduftion ; but the privilege is accompanied with this limitation, that he fliall not retain his own debt as againfl thofe of a higher degree ; for the law places him merely in the f^ime fituation as if he had fued him- felf as executor, and recovered his debt, which there Ch. III. OF EXECUTOR'S RETAINER-, &c. ^ '^ I there could be no room to fuppofe, during the exiftence of thofe of a fupcrior order \ As, where ^/ i^^i-Com. A. before his marriage, covenanted widi B. and C. com. is, ig. to leave them by his will, or that his executors, i^z'/,^^;^*' within fix months after his death, fliouid pay them ^ "^ '^''?; fcYQn hundred pounds, in truir, to pay the mtcrdt 3Bac. Abr.ic. to his wife for life, and, on her death, to divide ^l^^ ^,^^ . the principal among his children, and, in default Piowd.i^?. of children, as he fliould appoint, and bound him- Ahr.jz. 26 (. felf, his heirs, executors, and adminiilrators, in hJ-gr/cc?.' a penalty for performance ; on his dying before ^ 'V^- ^''4- his wife, without iiTue and inteftate, it was held, that B. in the character of his adminiflrator, miijht retain aiTets to that amount, during the life of the widow, againit a bond creditor, who faed before the fix months were elapfed ''. '' 3 BumsSo. So, if A. and B. be jointly and feverally bound in an obligation, and A. appoint the executrix of the obligee his executrix, and die, leaving all'ets, fhe is not compelled to refort to an adlion againll B., but is entitled to retain for the debt ; in cafe there be not aiTets, ilie has a right to purfue her remedy on the bond againfl B. ". So, if A. be in- <= Com. Dig-, debted to B. and C. by feveral bonds, and die,, and iiob.J'o. 3 Bac. D. take out adminiflration to A., and, afterwards, •^t'/f'o 3 Kebl. Rep. B. die, having appointed D. his executor, he may no. 2Lev.73. retain effefts of which he is poifefled as adminiflra- tor of A., to fatisfy the debt due to him as the executor of B. ^ If A. be indebted in a bond to f uVin.Abr. B., and die, having appointed B. hi-3 executor, jo. * who, after having intermeddled with the goods, and ^-^ OF EXECUTOR'S RETAINER Book III. 2 J ji- and before probate, alfo dies ; although, before his death, he did not exprefsly elcd in what par- ticular effeclv he would have the property altered, yet, it mufl: be prefumed, that it was his intention to pay his own debt firfl, and, therefore, his exe- cutor flvall have the fame power of retaining as be- B iiVin.Abr, j^p^ged to him ^. So, for a bond executed by the Wms. 183, teftator to A. conditioned for the payment of mo- ^84. an no e ^^^ ^^ ^^ -g^ .^ feenis, in cafe he is executor, h Com. Dig. niay retain*'. So, if adminiflration be granted to AdmonC. 2. ^ creditor, and afterwards repealed at the fuit of Serab.Raym. r 1 • r 1 j- • • n. 484. the next or kin, luch creditor may retam agamit '/' ''c":,^^^" the rjohtful adminiftrator '. In (hort, wherever an 265. iSaik. 38. *o _ executor might have been fued, or might have paid Admon. c.^. ^ debt, he has authority to retain ''. 3^urr. 1384- But, where A. and B. were joint obligors in a bond, the former as principal, the latter as furety, A. died, B. took out adminiflration to him, and, on forfeiture of the bond, difcharged the debt; it was held, that he could not retain, for, byjoin^ 1 II vjn. Abr. jj^g, [^ j-j^g bond, the debt became his own K Yet, 263. Godo. . c) ^' _ ^ ' J49. in fuch cafe, it feems, he might retain for the money paid, as conftituting a fiinple contrad: debt. «n Ri. Rep. 965. A retainer for a debt may either be given in evi. n v[n*. Abr.' dence, on the plea of phic admini/Iravitj or it may »66. iBiowni. be pleaded Ipecially'". ■ II Vin. Abr. ' 565. in not. ^n executor may retain, both at law and in lF.Wms.29j. • r 1 • equity, for his whole debt, as againfl other credi- tors of the fame degree " : but, equity will inter- pofe Ch. ITI. FvOR HIS BEBT. 2^2 7 pofe to reftrain him from perverting this privilege o 3 Bac. Abr. to the purpofes of fraud". Nor will a mere nomi- ,'om" ^.'496. nation of a creditor to the executorfliip, it he re- p Rawiinfon fufe to a6l, extinguifh his legal remedy for the re- ! x^j'^Rep. covery of his debt p. Hence, if a creditor be ap- 557. pointed executor with others, he may fue them, ^^^ irf not. *"' efpecially if he hath not admiuiftered 1. If there Oft'. E:.^^ be not perfonal aficts he may fue the heir, where Lit^T^.b^ the heir is bound CHAP, not. I. r.,ilk. 304. Off. Ex. 33} 34. ( 234 ) CHAP. IV. OF THE PAYMENT OF LEGACIES. SECT. I. Legacy^ what — ivho ?imy he legatees— ^cho not — / iP.Wms. 540- 1 Ambl. 310. k a Bro. Ch. Rep. 108. Foncft, 151. 1 Vef. 4.25. 1 Kq. ca. Abr. 298. • a Bro. Ch. Rep. 125. *n 3 Atk. 103. n a Vef 563. See 1 Fonbl. 374. note (o). I P.Wms.540. note (i). « 2 Fonbl. 376. 1 Vern. 6Si;. OF DIFFERENT KINDS OF LEGACIES. Book III. circumftances, even pecuniary legacies are held to be fpccific. As a certain fum of money in a cer- tain bag or chfjft ^, or the bequeft of a fum of money in the hands of A. ^, or of two thoufand pounds, the balance due to the teftator from his partner on the lad fettlement between them, if the teftator did not draw fuch money out of trade be- fore he died K So a bequeft of a bond, or of the teftator's ftock in a particular fund, hath been thus clafled •'j as likewife has a legacy to be paid out of the profits of a farm, which the teftator directed to be carried on '. In like manner the teftator may carve fpecific legacies out of a fpecific chattel ; as where he gives part of the debt due to him from A., it will be a fpecific legacy "'. So a bequeft of part of the tef- tator*s ftock in a certain fund, fhall bear the fame conftruftion ". So where A. devifed to his wife all his perfonaf eftate at B., this was held to be a fpecific legacy j and the fame as if he had enumerated all the parti- culars there ". P 1 P.Wms. ' 540. not. I. J Atk. 414- a Vef. 562. <) Ca. Temp. Talbot, 227. On the other hand, a mere bequeft of quantityy whether of money, or of any other chattel, is a ge- neral legacy ; as of a quantity of ftock p. And where the teftator has not fuch ftock at his death, fuch bequeft amounts to a direction to the executor to procure fo much ftock for the legatee ''. Sa, the purpofe to which a general legacy is to be ap- j plied Ch. IV. OF LEGACIES LAPSED OR VESTED. plied "will not alter its nature; as where it is directed to be laid out in land ■■. Perfonal annuities given by will, are alfo general legacies '. In a cafe before Lord Camden C. his lordfliip took the dilUndion between a legacy of a certain fum due from a particular perfon, and a legacy of fuch debt generally, confidering the former as a legacy of quanlity, the latter as fpecific \ So, in another cafe, where, after the following bequeft, " I give to A. one thoufand four hundred *' pounds, for which I have fold my eflate this '* day ;" the teflator received the whole of that fum, paid it into his banker's, and drew out one thoufand one hundred pounds of the money ; this was alfo held by Lord Bathurll C. to be a legacy of quantity ". But Lord Thurlow C. difallovved that difl:in6tion "' ; and held a legacy of " the principal "of A.*s bond for three thoufand five hundred " pounds," to be a fpecific legacy, notwlthftanding the fum was named. Such are the different fpecies of legacies. They are next to be confidered as lapfed, or vePted. It is a general rule, that if a legatee die before the teftator, the legacy (liall be lapfed ". And although in the bequeft of a legacy to A. the teflator fiiould exprefs an intention, that the legacy fhould not lapfe in cafe A. die before him, this is not fufficicnt to exclude the next of kin ^ Yet a bequeft may be fo fpecially framed, as to prevent its lapfe on fuch previous death of the legatee, as if in cafe of the 237 f I p. Wins. 54.0. s ■? Atk. 693. 2 Vel'. 417. z Fonbl. 37S. t z P. Wms. 330. not. I. Ambl. J 6 6. « Carteret v. Carteret, cited 1 Bro. Ch. Rep. 114.. w Afhburner V. Macguire, 2 Bro. Ch. Rep. 113, ii4« X 4 Bac. Abr. ■^97. 1 Fonbl. 368. not (2). y 3 Atk. 571. g OF LEGACIES LAPSED OR VESTED. Book III. the death of A. before the teflator other perfons are named to ta^e ; the legacy on A.-s fo dying z 3 Atk. 572. {].'^\i v^ft in fuch nominees ^. Nbr is a leejacy to See alfo 3 Atk. . , • , , r • • r i i i 580. two or more witnm the rule ; tor it is Icttled, that a legacy to feveral perfons is not extinguiHied by ' ^^'^'^^Arv'T-Io the death of one. of them, but iliall veil in the fur- vivor \ Nor does the rule extend to a legacy given over after the death of the nrft legatee, for in fuch pi!^.'iYa*n. ^^^P the legatee in remainder iliall have it immedi- 'e7-i?wm^- ately ^." Nor, as it fecms, will a legacy lapfe by the -.ab.Jp.vVniS, death of the legatee in the tedator's life-time, if he "'^''mSSv ^' ^^^ to take in the character of trullee ^. ^ ,9. a Yern. ,6g!r.ot. (lc-) a fegacy is aifo lapfed, if, before the condition cSce iVer.T4o- on which it is given by the will be performed, the 1 J^nbj.''!?!^. legatee die, or if he die before it is veRed in in- not. (g). & (h). tereft "'. J -,Fonbl.36S. Axa, ' We have already feen, that if a legacy be left to h.payable to him at a certain age, it is a veiled •and tranhnirriblc inter elt in him, debitwn in prczferui^ though fGlvcndum in futuro : That it is othervvife, if the legacy be left to him at, or when he attains « Vid. fiipr. iuch age ". The didinclion was borrowed from tlic 2 tonbl '37! civil law, and adopted by our courts, not fo much' 2'veiitt-f^4;. ^^^^ its intriniic equity, as from its prevailing in 2 ch.Ca. 155. {-[jg fpintual courts; for, fince the chancery, as will sP.Wms. 13s. be hereafter fliewn, has a concurrent jurifdiclion ; Vcntr.'Mz. "^"^'ith them in refped to, the recovery of legacies, it 1 Sa'.k 415. is reafonable, that there fnould be a conformity in Kcp. 115. their decifions ; and that the fubjeft fhould have the fame meafure of jufilce, to whatfoever court he may t'H. IV. OF THE EXECUTOR'S ASSENT. 239 may refort. But if fuch legacies be charged on a real eftate, in either cafe they fiiall equally lapfc for the benefit of the heir ; for with regard to devifes affeding lands, the ecclefiaflical courts have no r^pac. Abr. concurrent iurifdidlion, and theriefore the diftinc- 39--2ii}Com. tion does not extend to them ^ If, as I have be- Abr. 395. fore ftated, the legacy be made to carry intercft, I FonbL^373!' though the words, " to be paid," or " payable," ""*• ("^)- are omitted, it is vefted, and tranfmiffible °. So if ^01'^??)'*^''^* the bequeft be to A. for life, and, after the death 2 ventr. -!42. 2 Chan Ca of A., to B., the bequefl to B. is vefted, on the 155. aVem! death of the teflator, and u'iil not lapfc by the death t'^.tJ^As^,^^' of B» in the life-time of A. K h . Ponbi a*t. j^- not. (k). * ' a Ventr. 34.7. ^^^^^^_^____^^_^^^^^^_^^^^^^^^_^^^_^__ I P.Wms. 56S. """"" "" ^.— -« - a Vein. 378. Ambl. 167. 1 Bro. Ch. SECT. II. Rep.. ,,..8,. 0/the executor*s ajfcnt to a legacy — On luh at principle necejfary — What Jh all amount to fuch ajfent — AJfent exprefs^ or implied — abfolute^ or conditional — has relation to the tejlator^s death — vjhen once made irrevocable — when incapable of being made, BUT the bequefl of a legacy, whether it be ge- neral, or fpeciiic, transfers only an inchoate pro- perty to the legatee. To render it complete, and perfe<5l, the affent of the executor is requifite ^ On =* 3 Bac. Abr. him all the tefl:ator*s perfonal property is devolved, 5t2.^Hargr!"* to be applied, in the firfi: place, to the payment of V? ^"^';'^^^' debts ; and therefore, before he can pay legacies R with 240 OF THE EXECUTOR'S ASSENT Book III. with fafety, he is bound to fee, whether, indepen- dently of them, a fund has been left fufficicnt for the demands of creditors. In cafe the aifets prove inadequate, the legacies mud abate or fail altogether, according to the ex- tent of the deficiency. If, on a failure of aflets, he pay legacies, he makes himfelf perfonally refpon- fible for the debts to the amount of fuch legacies. Hence, as a protection to the executor, the law impofes the neceffity of his alfent to a legacy, be- fore it can be abfolutely veiled ; and fuch aflent when once given, is confidered as evidence of aiTets, and an admilTion on the part of the executor, that b^Off.Ex. Z7, ^hg fuj^j is competent ^ If without the alfent of the executor the legatee take pofl'effion of the thing bequeathed, the execu- c Off Ex. 27. tQj- j^Y^^y maintain an adlion of trefpafs as-ainfl: him '. S2^ 3 Bac. -^ . , i iD. Abr. 84.4Bac. Nor even, in cafe a fpecific legacy, whether a chat- ryert^-4. tel real or perfonal, be in the cuftody or poifeffion Keilw. 128. Q^- f}^g legatee, and the aifets be fully adequate to the payment of debts, has he a right to retain it in oppofition to the executor, by whom in fuch cafe d Off. Ex. 2i2, an adlion will lie to recover it *'. Nor has fuch le- **^' gatee authority to take poifeflion of the legacy without the executor's alfent; although the teftator by his will exprefsly direct that he fliall do fo : for if this were permitted, a teftator might appoint all his eifeds to be thus taken in fraud of his credi- e Off. Ex. 223. tors*. Yet, previous to the alfent of the executor, a legatee has fuch aa intereft in the thing be-' '5 queaihed, Ch.iv. to a legacy. 241 f Off. Ex.iS. queathed, as that in cafe of his death, before It be paid, or delivered, it flrail go to his reprefentatlve % or, in cafe of the outlawry of the le^^atee, fhall be J Vid. on.i:>:. fubject to the forfeiture 2. If A. releafe by will a debt due to him from B., it is the better opinion, that the allent of the exe- cutor is necelfary to give effecl to the teftator's in. tention : for, although on the one hand it may be alleged, that the party to whom the debt is be- queathed, mull necefiarily have it by way of re- tainer, and that fuch a claufe operates rather as an extinguifnmenr, than as a donation, and therefore that it needs no fuch alTent as where there is to be a transfer of the property : yet on the other hand, a debt fo releafed is regarded, with greater reafon, in the light of a lega.cy, and like other legacies, not to be fanclioned by the executor, in cafe the eftate be infuiTicient for the payment of debts. But as foon as the executor aflents, and not before, it h off. Ex-. 29, Ihall be effeclually difcharged ''. s^z.^'vid. "^^* i^P.Wn-is. S3. 3 Atk. jSo. " With refpeQ: to what fliall conflitute fuch aifent on the part of the executor, the law has for this purpofe prefcribed no fpecific form ; a very flight ailent is held fufficient '. It may be either exprefs, * 1 Vern. 94, or implied, abfolute, or conditional, 3^?'. 4Bac, ' Abr. 44J. The executor may not only in direct terms au- thorife the legatee to take poffeffion of the legacy, but his concurrence may be inferred either from Jndireft expreilions, or particular acts. And fuch R 3. conilrudive 242 OF THE EXECUTOR'S ASSENT Book III. confli'UclIve permifTion (liall be equally available. Th'js, for inftance, if the executor congratulate the legatee on his legacy, or if a horfe is bequeathed to A., and the executor requefts him to difpofe of it, or if B, propofes to purchafe the horfe of the executor, and he direds B. to buy it of A.; or if the executor himfelf purchafe the horfe of A., or merely oiFer him money for it, this in either cafe k 4Bac. Abr. amounts to an afilnt by implication to the legacy''. "•'^^' P^ Tv,'r So. where A. the devifee of a term granted it to the Adiiioii. C.6. executor, his acceptance of the grant from A. was held to be an implied permifiion that the term fnould •Ofl". Ex.226, be A.'s to grant '. So, where J. S. feifed in fee of a foreign plantation, devifed it to A., and the exe- cutor cirantcd a leafe of it for years, refervine rent in truft for A., this was adjudged a fufficient af- maVentr. 258. fent ". If a term be devifed to A. for life, remainder to B., the aifent of the executor to the devife to A. fhall operate as an aflfent to the devife over to B,, "Com. Dig. and veil an intereil in him accordingly". So, an fo'^co'" 7^'bf ^^^^^ to fuch eflate in remainder is an affent to iRon.Abr.6io. the prefent eftate ° : For the particular eflate and Plowd. 545 '5^ -1 ' • 1 (T 1 n 1^ ',• not. sFAVms. the remamuer, conltitute but one citate p. But ir ^^- ?. leffee bequeath a rent to A., and tlie land to B., occm.Dg. ^j^g executor's aiTent that A. fnould have the rent, Aumnu. L. 0. ^ ' pOff E^: ■'•'6. '^ "^ afient that B. fhould have the land, becaufe the rent and the land are diflin^l legacies ; but un- der fpecial circumftances, an executor's aifent to one legacy may enure to another, as if the cafe lafl: mentioned be reverfed : The executor's aflent that B. Hiould Ch. IV. TO A LEGACY. 243 B. fhould have the land, feems to imply his a (Tent that A. fhould have the rent ; for the necellity of the executor's afient is eftabliflied with a view to creditors ; now to them the land is equally unpro- ductive, whether it pafTes to B. charged with the rent, or not : and alfo, as it was the teftator's in- tention, that B. fhould hold the land fubjeft to ihe rent to A., the executor's afient to B.*s having the land fhall, in conformity to the will, be ccnftiued an affent to the legacy to A. '^. So an afient to a lOff. Ex. 237. devife of a leafe for years, is an afient to a condi- tion or contingency annexed to it. Ae, if there be a devife of a term to the teftator's widow, fo long as fhe continues unmarried; and if fhe marry, then of a rent payable out of the land ; the executor's affent to the devife of the term, is an afient to that of the rent in cafe of the devifee's marriage ■■. Ad°!on. S. I Roll. ALir. * 620. An afient may alfo be abfolute, or conditional. If it be of the latter defcription, the condition mufl be precedent. As, where the executor affents to the devife of a term, if the devifee will pay the rent in arrear at the tefi-ator's death. In that cafe, if the condition be not performed, there is no affent; but if the affent be on a condition fubfequent, as provided the legatee will pay the executor a certain fum annually; fuch condition is void, and a failure in performing it fiiall not diveft the legatee of his legacy ^ The flate of the fund may require the '^<>m-Dig. executor to impole a condition precedent to his Off. Ex. 238. V payment of the legacy; but if he once part with Leon.^i-otti' it, he has no right to clog it with future fi:ipula- R 3 tions J ^ , , OF THE EXECUTOR'S ASSENT. Book III. ^"^-'^ , ... tions; and make that legacy conditional, which the « Off. Ex' 138. teftator gave abfolutely '. The alTent of an executor fliall have relation to the time of the teflator's death. Hence, if A. devife to B. his term of years in tithes, in an advowfon, or in a houfc or land, and after the teflator's death, and before the executor's aflent, tithes are fet out, the church becomes void, or rent from the under- tenant becomes payable, the affent by relation fliall « OiT. Ex. 249. perfe£l the legatee's title to thefe feveral interefls ". So fuch aflent fliall by relation confirm an interme- wQff. Ex.ajo. diate grant by the legatee of his legacy '\ If an executor once aflent to a legacy, he can never afterwards retracl, and, notwithflanding a fubfequent difl^ent, the legatee has a right to take 4 B;ic. Abr. t» J 445- If a term is devlfed to A., and the executor be- fore he aflfenis to the devife takes a new leafe of the fame land to himfelf for a larger term in polfefilon, or to commence immediately, the term devifed is merged, fo that it cannot pafs to. A. although the V oT Tv ,.'. An aflent to „ .-, , . a void le2,acv, is alfo void ''. Such is the nature of an -executor's aflent to a legacy. We have already feen, that he is compe- > Vid. ru]:r 24. tent to give it before probate \ But if he has not attained the age of twenty-one years, he is inca- pablcj by the abovementi.Micd flat. -8 Geo. 3. c. 8;. Cti. IV. OF THE PAYMENT OF LEGACIES. 24 d c. 87 ''. of the fun6lIons of an executor, and there- ,, gup^. „, fore his a^flent is of no validity '. c y a. Com. Dig. Admon. E. Off.Ex.2j4. SECT. in. When a legacy is to be paid — To whom — Of payment in the cafe of infant legatees — Of a conditional pay - 7nent of a legacy — Of payment of intercji on legacies — O/'y?/^/.' payment where the legatees are infants — Of the rate of intereft payable on legacies. ON the fame principle that the aflent of an exe- cutor to a legacy is neceilary, he cannot before a competent time has elapfed be compelled to pay it. The period fixed by the civil law for that purpofe, which our courts have alfo prefcribed, and which is analogous to the ftatute of dilfributions, (as will be hereafter feen), is a year from the teflator's death, during which it is prefumed he may fully inform himfelf of the flate of the property \ => 4 Bac. Abr. ^ 4 34-2 Salt. 415. pi. 2. If a legacy to an infant be payable at tv/enty-one, and he die before, his reprefentative cannot claim \^^_^^^^f''''' it till, in cafe he had lived, he would have come of age '^ ; unlefs it be payable with intereft, and then, c ^r^c. Abr. as we have feen, fuch reprefentative has a right im- 434- m not. mediately to receive it ". In cafe a lep;acy be left to 2P.Wms.317. 1 T 1 J- 1 r , , AS'o.Ambl.582. A. at twenty-one, and if he die betore twenty-one, ^ y^f ,jg' then to B. ; and A. die before he attains that age, ^ la-o.Ch.Rcp. B. fliall be entitled to the legacy immediately ; tor jVcf.jun.io. R4, he Vid.lupr.,.u- 246 OF THE PAYMENT OF LEGACIES. Book IIL he does not claim under A., but the devife over is a diftinft, fubltantive beqneft, to take effect on the diEq.Cn.Abr. contingency of A.'s dying during his minority ''. ^ a Verr. 6:0. But where legacies were given to A. B. and C, the three co-heirefles of the teftator, to be paid at their refpeftive marriages, and if either of them fliould die, her legacy to go to the furvivors, and one of them died unmarried ; it was held, that the furvivors ihould not receive the legacy of the deccafed before their refpcftive marriages : for the condition, tliough not repeated, was annexed to the whole, vvheiher it accrued by furvivorfhip, or by the original devife \ The next objecl of enquiry is, to whom a legacy Ihall be paid : And here the executor mud be care- ful to pay it into that hand^ which has authority to receive it. It is a general rule, that he has no right to pay it to the father, or any other relation of an infant, f4Bac.A.br. without the fanclion of a court of equity'"; and Ca. 145. * even in the cafe of an adult child, fuch payment is not good, unlefs it be made by the confent of the f gg^ ^j^j. child, or be confirmed by his fubfequent ratifica- 4-51- sBro.cii. tion ". Rep. 27. Cafes occur, where an executor has, with the mofl honed intentions, paid the legacy to the father of the infant, and has been held Hable to pay it over again to the legatee on his coming of age, 9 Anci C-H.IV. OF THE PAYMENT OF LEGACIES. 24.7 And although fuch cafes have been attended with many circuinilances of liardfliip in refped to the executor, yet he has been held refponfible, on the policy of obviating a pradice i^o dan- gerous to the intereft of infimts, and fo natu- rally productive of domellic difcord. The child niuit in cafe of fuch payment either acquiefce, or refort to the father; or, which is in efiedl the fame, inftitute a fuit againfl the executor, who will 01 courfe require the father to refund ''. Thus lega- ^^ !j;^'n?o. ch! cies of one hundred pounds a-piece, were bequeath- Ji^J^j^^^^ Hmn ed to four infants; the executor paid the legacies 3 ch-CaAcs, to the father, and took his receipt for them : When one of the legatees came of age, who was about ten years old at the time of payment, the father told him, that he had fuch a legacy of his in his hands, but could not pay it immediately, and requeded him not to apply to the executor, at the fame time promifmg, that he would himfelf pay it : The fon acquiefced for fourteen, or fifteen years, during which period his father and he carried on a joint trade, and then became bankrupts : On a commif- fion taken out againft the fon, this legacy among other thins-s was aiTisrned for the benefit of his ere- o o ditors ; and the affignee filed a bill againfl the ex- ecutor, for an account and payment of the kgacy, when it was decreed accordingly by the Mailer of the Rolls, but v.'ithout intereft; and the decree affirmed by the Lord Chancellor on an appeal. His lord- !|oo.?P.Wf>s." fhip, however, on the hardflrip of the cafe, ordered J^^^^'^jq';^ ^^" the depofit to be divided '. It appears from the re- 4Bii!nEc>.i.L. giflrar's bool^, that in the above cafe evidence was aSoVBio.cL* read, R^P- 96- 24^ OF THE PAYMENT OF LEGACIES. Book III. read, that the teftator on his death-bed gave direc- tion, that the executor fhould pay the legacies to the father of the infants, that he might improve the k , p. Wms. money for their benefit ". But although that cir- *Hro.ch.Rep. cumftance, if true, rendered the cafe ftill harder, 9'^- yet it could not influence the decifion, fmce the evidence ought not to have been received. It were dangerous to admit proof, that a legacy given to '3 'R^o- '•:^r^ one perfon was ordered to be paid to another '. aPAVmb.42»- If the direction had appeared on the face of the will, the decree, doubtlefs, would have been dif- mvid. infr. ferenf". So, where A. left a legacy of a hun- dred pounds to each of the three children of B., and appointed C. her executor, leaving him the bulk of her eftate, provided he paid thofe three le- gacies within a year after her death : The defen- dant within that period paid into the children's own hands their feveral legacies ; the eldefl of whom was then fixteen years, the fecond fourteen, and the youngeft only mne : On her coming of age, they filed their bill againll the executor to be paid their refpedive legacies;, fuggefling that their father had embezzled the money, and was infolvent, and that the payment was a fraud : The defendant in his anfwer denied all knowledge of the money's ever having come to the father's hands ; The Lord Chancellor held, at firit, that as the executor paid thefe legacies to fave a forfeiture of what he him- felf took under the will, he ought not to pay them over again ; but on farther confideration, conceiving the point to be very doubtful, his lordfhip recom- mended a comproraife; and the defendant agreeing to 249 Ch. IV. OF THE PAYMENT OF LEGACIES. to pay fifty pounds, to be divided between the three plaintiffs, without cofts on either fide, they were ordered to releafe their legacies". "aAtkSo.si. The rule, however, is not fo harfh ; as that in all poflible cafes an executor fhall be liable to pay over again legacies of infants which he lliall have paid to their parents*. Thus, where A. bequeathed "^-A-tk.si. to J. S. a hundred pounds to be equally divided between himfelf and his family, the executrix paid the legacy to J. S. who had a wife, and [even. children, fix of whom were adults, and the feventh an infant : Eleven years after the youngeft had come of age, and the legacy never having been de- manded, they filed their bill againft the executrix for the fame, infifling that the payment to their father was invalid : It was held, that, according to the terms of the will, the legacy was properly paid to J. S. ; and that it belonged to him as trullee to divide it : And even on fuppofition, that the pay- ment was wrong, the great laches, and long acqui- efcence of the plaintiffs, precluded them from all remedy P. But where A. bequeathed his perfonal p Cooper t. eftate to truflees in trull, to pay fix hundred pounds 3 nro.'ch.Rcp. to an infant, and dire£ted, that fuch of his legatees 5'- as might be infants at the time of his deceafe, fliould receive interell at the rate of five pei- cent. till their refpeclive legacies ihould be paid, namely, at their age of twenty-one years ; it was holden, that the executors could not juliiiy paying any part of the principal to the infant, or to his ufe, before q ^ xs-\':. Abr. that time, except for abfolute neceflaries \ 4?^- Daviesv. ^ Aiiltcii. 3 Bro. Ill Ch, Rep 178. ^ -Q OF THE PAYMENT OF LEGACIES. Book III. In cafe a legacy be too inconfiderabla in point of value, to bear the expence of an application to the court of chancery, it feems an executor will be "■ 4 Bum Ecci. juftified in paying It into the hands of the infant, Ca.z45.2Atk. or, which amounts to the fame thing, to the fa- ci'anctTv^'^ ther ' ; but in general he is not warranted in fo (3 G.6.) \'k\. doiner, unlefs he be clearly authorifed by the will. 2 Bio. Ch.Rep. \^ r ' 1 • n- i • 1 r ■ ' 1 r (5,3. And ir a luit be mltitutcd m the Ipintual court ror s3Atk. 629. an infant's legacy by the father, to have it paid iSd^vicke c. '^^^^ ^^^^ hands, an injunction % or prohibition ', will arguendo. be crj^antsd. Bac. Abr, 429. m not. ^1 , J. -J Goab.a43. Ai ail executor have a general power to divide a fam of money among children at his difcretion, and he make an unreafonable difpofition, it will be "4.Br.c.Abr. controlled in a court of equity ". As, where A. l\°^',l\tL6^o. having two daughters; one by a former marriage, ca. Temp. ^j-^^ ^]^q Other by a fecond, devifed his eflate to his wife, to be diftributed between his daughters as flie fnould think ^t, and fhe gave a thoufand pounds to her own daughter, and only a hundred to the w I Vein. 355. other, an equal diflribution was decreed ^^ In like manner where A. having appointed his two daughters his executrices, gave them four hundred pounds to be diitributed among themfelves, and their brothers and fillers, according to their necef- fuy, as the executrices, in their difcretion, iliould think fit, the court fettled the diflribution, and de- creed a double fliare to one of the children, as i a Vein. 411. {tending in greater need of it \ If Ch. IV. OF THE PAYMENT OF LEGACIES. 2 CI If n legacy be given to a married woman, it muft be paid to the hufband. So where a legacy was given to a married woman living feparate from her hufband with no maintenance, and the executor paid it to the wife, and took lier receipt for it, yet ^ [jiJ'ni'^KccK * on a fuit inilitutcd by the hufband againft the exe- L. 332. cutor, he was decreed to pay it over again, with in- l,\^j\^^^' terefl ■'. It hath alfo been adjudcrcd, that if the huf- Abr. 343. band and u'lte are divorced, a lucnja ct tooro^ and a 301. Moore, legacy is left to her, the hufoand alone may releafe cto! ififz. gos. it '■, and confequently to him alone it is payable. Noy 45. ■r. L • r u 1 u n- ] 1 I Roll. Rep. But the executor;, m cales where the nuiband lias 426. 3 Uuir. made no provifion for the vv^ife, may decline paying prJiLd-RaVm! fuch legacy, unlefs he will make an adequate fettle- 73- s Mod. 69. / TVT -n 1 r 1 • 11 Mod. 891. ment on her. JNor wnl the court or chancery m- terpofe in his favour, but on the fame terms =*; un- 639.3 p.Wms. lefs the wife appear in court, and confent to his "*^°'- receivmgit\ aP.vvms.64i. aVef. 60. Scd ,,-1 , 1 r ^ r ' r y ^ i vid. 2 Vcf. 579. If a legacy be kit to the lenior lix clerk, to be divided between himfelf, and the other fix clerks, it feems that it ought to be paid to the fenior, and that it would not be incumbent on the executor to make any enquiry refpecling the others ". c Per M. R. ar;::uendo. 3 Bfo. Ch.Rep. 99. It may be unfafe for an executor, under certain circumftances, to make an abfolute payment, or delivery of a legacy, and in fuch cafe it is advifable for him to pay or deliver It conditionally, and to take fecurity of the legatee, in an event fpecified, to J 4 Kurn Ecci. refund '^. As, if A. bind himfelf in an obligation for ^ veutr. 35S. performance of a particular acl; and bequeath divers legacies. 2^2 ^^ ^^^ PAYMENT OF INTEREST Book III. legacies, and die, leaving only fufficient to fatisfy the bond in cafe of forfeiture ; yet the bond fiiall not hinder the payment of the legacies, becaufe it is uncertain whether it will ever be forfeited ; bur, in fuch cafe, the executor fhall pay the legacy, on condition that, if judgment be recovered againft $4^ ^'^Ron'''^" ^^"^ °" ^^^ bond, the legatee (liall refund '. And Abr 92§. Vid. if a fuit be inftituted in the fpiritual court to com- fupr. 221. , , . , ^ r . pel nmi to pay the lecracy, without a fecuntv to faVentr. 3j8. V rr n i •, • • n i, • ,-r . -r. , 1 Vein. 93. that enect, a prohibition ihall liiue \ Formerly, indeed, in ail cafes, an executor might oblige legatees to give fecurity to refund, in cafe of a de- S4BurnEcd. ficiency of aflets ^ ; but that practice no longer I Vhan.Ca.* exifls. On a bill for the payment of a legacy, the '"^5- court of chancery, in general, will not require fuch k I Atk.491. fecurity K Equity will compel a legatee to refund, where the eflate proves infufficient, whether fecu- « I Veni. 93, nty has been given for fuch a purpofe or not '. 54. In regard to the payment of interefl: on a legacy, in cafe of a veiled legacy charged on lands yielding immediate profits, and no time of payment mentioned in the w^ill, interefl fliall, in refpeCl of fuch profits, be payable from the kABac. Abr. death of the teftator ^. If a legacy 'be given te! zBi.Com. out of a perfonal eflate, confifling of mortgages 5^3- bearing interefl, or of money, in the public funds, the dividends of which are paid half-yearly, in isP.Wms. thefe cafes, the legacy, for the fame reafon, fhall z' Ark. loL' '^' carry interefl from the fame period ^ But, if a T Vef 3c8. legacy be given generally out of the perfonal ef- andsP.Wms. tate, and no time of payment be fpecified by the *"" teflator. Ch. IV. ON LEGACIES. 2 " '^ tefliator, fuch legacy fnall carry intereft only from the expiration of the year next after his deceafe ; for the executor may be reafonably allowed that time for the coileaino- of the efiecis '^. If a le- '"/^ P- ^Vms. gacy be given, charged on a dry revcrfion, it flvdU carry intereft from a year next after the death of the teflator, inafmuch as a year is a competent time for a fale ". Intereft 'on a fpecific legacy, '^^ ^- ^'^ "^^ where it produces intereft, fliall be computed from the time of the teftator's death. It is fevered from the reft of his eftate, and fpeclficaily appropriated for the benefit of the leo;atee, and iliall, therefore, " i Atk. 50?, r . -• 1 o 21 Vcf. 563. carry mterelt unmediately . If a legacy, whether vefted or not^, b e payable ^ on a certain day , and the will be filent in refped ^ to intereft, it is a g eneral ru le, the i ntereft^ iliall ( commence only from t hat time ; for it is given for ( delay of payment, and, confequently, till the Jay o f payment arri ves, no intereft can a ccrue to the Ieo"atee ^. Hence, as we have feen^, if a leQ;acy be ^ ^^^}'^- 7i«« left to A. to be paid at twenty- one, and he die be- 2 Saik. 4'j. fore, his reprefentative fliall wait till he w^ould have wms.^g'f. : attained that a^^e, unlcfs it were made payable with "f- ' • ^ ^»''>- o ' i. J ^ _ Ch. Rep. 10.5. intereft. Nor is it, in fuch cafes, a queftion of 3 Vtf. iun. i©. conftrudion, as whether the payment is fufpended "^ •- J '■• on account of the imbecility of the party, or with 245"^*^"'^** a view to the benefit of the eftate. The rule I have juft ftated is technical, eftablillied in the ec- clefiailical court, and adopted by the court of chan- ^ 4. vef jun. eery in numerous adjudications '. ^' ^' ^' But 254- OF THE PAYMENT OF INTEREST Book III. But the principle does not extend to all cafes: It does not apply where the legatee was the child of the teftator : There the court will not poftpone the payment of intercfl, even till a year after the death of the parent, but will order it immediately ; fjnce, by the law of nature, he was obliged to pro- vide not only a future but a prefent maintenance ^ Ati.c fo- for his child, and fhall not be prefumed to have meant to leave him deftitute \ 3 Vcl.jun. 13. I Vef. .u< Whether a legatee, if a natural child, be alfo comprifed within the exception, is not fo clear. Lord Hardwicke C. expreffed an opinion in the negative, as well on the principle of law, which recognifes no relationfhip in fuch a child, as alfo on the general policy of encouraging marriage, and difcountenancing immorality ''. But, in a rc^ cent cafe, the Mafler of the Rolls intimated, that illegitimate children were to be admitted to the c3Vefjun.11. fame benefit ^ Whether a grand-child fhall be thus favoured, is a point likewife on which there has been a difference of opinion : fuch advantage a Atk. 330. }^as been, in feveral indances, denied to him''. 4Br0.Lh.Rcp. But his honour, in the cafe jufi; alluded to, 249. 'n no. ^ppejirs to have confiJered him as on the fame « sYcf.jun.iz. footing with a child**. A legacy to a nephew, payable at tvv-enty-onc, is c-early comprehended under the general rule, and fhall carry interefl only f3Vcf.j11n.12. from the time of payment *". But the rule is not applicable to a bequePc of arefidue, fubjc£l to be diveded on a contingency ; for it would be abfurd to Ch. V. ON LEGACIES. ^ - - •55 to fay the teftator meant to die inteflate as to the produce> when he has given a vefieu intereft in the capiraM. If a leoacy be left to an infant, payable saP-^Vms, at twenty-one, and devifed over on his dying before jun. 4. he- attains that age, and fuch event happens, the interelt, accumulated from the death of the teftator to that of the infant, Hiall go to his reprefentative, ^ ^ P. Wms. J , • ] ' i> 500. 2 t'.Wms. and not to the remaniuer-man". 42,. not. i. 2 Atk. 473. I Bro. Cli. If the father of an infant lecratee be living, he is '^"^p- ^^- '^''^• bound by the municipal law, as well as by the Vid.sAik. 59. ties of nature, to maintain his child. Nor, as it has been frequently held, fliall the intereft of the legacy be applied to that purpofe, unlefs in cafes of great neceflity, arifmg from the diftreffed and em- barraffed circumftances of the parent '. In cafes fo ' } Atk. 60. preffing the infant fliall be maintained out of the Ch. llep. 60. intereft of the legacy, whether it be veiled or con- ' tingent, and, although the legacy be devifed over on the infant's dying before he attains twenty-one ■*. "^ 3 Atk 60. Jndeed, in fome recent inftances, where the will has contained an exprefs direftlon for maintenance of the legatees, out of the intereft of the legacies, and .there have been other children, not the ob- jeds of the teflator's bounty, fuch maintenance has been ordered without regard to the father's ' 3 Vef.jun. , ... , 733- Vicl.alfo ability '. 4 Bro. Ch. Rep. Z23. On occafions extremely urgent, the court will even break in upon the principal ; but this autho- rity is exercifed very fparingly, and with great caution ™. If the legacy be of fmall amount, and « , p. ^ms. S the ''• 256 OF THE RATE OF SUCH INTEREST. Book IIT. the intereft altogether inadequate to the neceffities of the infant, the court will order a part of the principal to be immediately paid, and that as well n jVcrn. 255. for hi s education, as for his maintenance". But if the legacy be devifed over in cafe of the infant's dying before he comes of age, the principal, it »4Bac. Abr. feems, fliali on no account be fubie6: to fuch di- 4A.:. I Ch.Ca. . . „ •* 249. Free. Ch. mmution \ ^95- 309 With refpe(5t to the quantum of the interefl thus payable on a legacy, a diflinftion formerly pre- vailed between legacies charged on land, and fuch as were charged on the perfonal eftate. It has been held, that as land never produces profit equal to the interefl of money, the court of chancery will follow the courfe of things, and give intereft, where it arifes from land, one per cent, lower than J Vef. $08, where it arifes from perfonal property p ; but this diftindion is now exploded. Whether legacies arc charged on real or on perfonal eftate, it is become the eftabliflied pradice to allow only four per cent, where no other rate of interefl is fpecified by the will. And although pecuniary legacies not having the addition of the word " llerling," are to be paid according to the currency of the country where the will was made, yet the interefl is to be computed, in conformity to the courfe of the court, at four q aBro.cii. per cent, and not purfuant to the rate of interefl in Rep.47-3Bro. r 1 mnntrv <) Ch. Rtp.53. lucn country '. 4 Bac. Abr. 440' in not. On the payment of a legacy ah executor Is bound to take a receipt for the fame, properly flamped, I according Cit. V. OF THE ADEMPTION OF A LEGACY. according to the value of the legacy, and the rela- tionship of the legatee "■. 257 'Vitl. Append. SECT. IV. Of the ademption of a legacy. I PROCEED now to enquire into the nature of an ademption of a legacy. . An ademption of a legacy is the taking away or revocation of it by the teftator. It may be either exprefs, or implied. The teftator may not only in terms revoke a Itgacy he had before given, but fuch intention may be alfo indicated by particular ^ afts \ As where a father makes a provifion for a ' zFonbl 55-; child by his will, and afterwards gives to fuch bjFonb]. 354. child, if a daughter, a portion in marriage, or if wni'V^o/* a fon, a fum of money to eftablifh him in life, pro- a c h. Rep. 85. . r r i_ 1 a Vein. 115. vided fuch portion or fum ot money be equal to or 2 vem.a^y. gi-eater than the legacy, this is an implied ademp- ^jjjjf "^^J tion of it, for the law will not intend that the fa- ^B'o- t:h. ther defigned two portions for the fame child''. But this implication will not arife if the provifion *" '■^''■^-■^^^' in the will is created by a bequeft of the refidue % ^ ^ AtK.49,, nor if the provifion in the father's life-time be fub- * ' ^ro. ch. , . Kep 425. jed to a contingency \ nor unlefs it be ejufdem ge- neris with the legacy ' ; nor if the teftator v/eie a ^ b.o. ChV Itranger ^ Such implication is always liable to be R^P-^99- rebutted by evidences. But if the teftator by a H^)^^'^' S 2 codicil. Rep. 163.519. '58 OF THE ADEMPTION OF A LEGACY. Book III. codicil, fubfequent to the portioning or advance- ment of the child, ratify nnd confirm his will, this, although a new publication, fliall not avail to over- turn the prefuRiption that he meant to adeem the hiFrccm.2Z4. legacy ; for fuch words are merely formal''. : In refpeft to the ademption of a legacy, all the cafes on the fubject concur in the principle, that the intention of the teftator mull: govern ; but, in the application of that principle, or what fliall amount to evidence of fuch an intention, they afe, in many indanccs, incapable of being reconciled. Thus, in fome cafes, it has been held, that, where a fum of money is bequeathed out of a par- ticular fund, fuch legacy is in its nature general, a Icgatum in nuincraiis^ and, if the teftator in his life-time receive it, it muft be made good to the legatee out of the general aflets ; for, from that act of the teftator, no prefumption can be raifed of i 4 Bac. Abr. his intention to revoke his bounty '. In other Rcp.iof;. cafes it has been decided, that fuch a legacy under rinch. isi. jj^g fame circumftances is adeemed''. Some au- Kaym ^■^v I p.\Vm<^.777. thorities diftinguifh between the bequeft of a fum fe ^Bro. ch. of money, to be fatisfied out of a particular fund, Kcp. 43'. See /' ^ ^ aifozKcnbi. and coniequentiy a general legacy, and a bequelt 467. not (f). p£ ^ fpecific debt, that tlie former is not adeemed, while the latter is adeemed, by payment to the ?Ambl. 401. teftator'. But thefe iaft mentioned cafes differ in their conftruftion of what fiiall be the bequeft of a general legacy, as oppofcd to that of a fpecific 2 debt. Ch.v. of the ademption of a legacy. 2 eg debt. Some, as we have already fcen"', adopt a "^'Vid 1111123 ;• diftindion between the beqaeil of a certain Turn of money due from a particular perfon, as *• five hundred pounds dne on a bond from A.," and a bequefl of fuch debt generaUv, as, " of the bond from A.;" rhat, in the former inftance, the le- gacy is pecuniary, in the latter is Ibecific". But, " iP.Wms. T , r I • 1-1) • o- • 330. and not. I. accordmg to other cales, tni8 diltincnon is too ib1d.Ambl.560. flender to be relied on ". A difference has alfo, LoMCanu-et in fome inllances, been taken between a compul- cited 2 Bro. fory and a voluntary payment to the teitator of " ' ' luch debt ; m other words, where the teltator hmi- Rep.in.iEc]. felf calls in a debt, which he has bequeathed, and <^'^- A^^' where the debtor, unprovoked and without appli- cation, thinks fit to pay it ; that, in the former ' inftance, it is the a£l of the tefhator, and confe- quently an ademption, in the latter he is merely paiTive, and, therefore, cannot be prefumcd to have changed his mind p. But the doctrine of ^ * ^- ^^'''"^: V T . . . . . 330- "''t. (i.) fome cafes is, that this diflinction has no weight ^, ibid. Ainbi.57 and of others, that it has no exi (fence "■, and that '' iP. Wms. the cafe is not varied by the mode of payment. In jgo^aP.Wm-;! another clafs of cafes, this diftinction between a 4^9-2 sir, 825. compulfory and a voluntary payment has been re- [ Bro^ch^^' cognifed as very important, but not as an abfolute ^^'^P- ^^9' . rule of declfion, on the principle, that the teila- 355. not. (b.3 tor's calling for payment is not of itfelf fufFicient evidence of an intention to adeem, but an equivo- * a Vef 623. cal aa requiring explanation \ fvd'>r639. It is, however, clear, that if the legacy be of a fpecific chattel, ayd the teftator alter the form, fo S 3 as 26o OF THE ADEMPTION OF A LEGACY. Book II!. as to alter the fpecificatlon of the fubje*^, as if, after having given a gold chain by his will, he con- vert it into a cup, or, after he has bequeathed wool, he make it into cloth, o« a piece of cloth into a garment ; the moft obvious conclufion that can be formed from fuch an ad: is, that he has changed the intention he had expreffed in his will ; therefore, in fuch inftances, the legacy fliall be ^3 Bro Ch. adeemed ', So, if he bequeath his flock in a par- ticular fund, and fell it out fubfequent to the making of the will, this, on the fame principle, " 3 Bro. Ch. amounts to an ademption". But, if A. bequeath ' ' fo much flock to B., and, after making his will, fell it out, and then buy in again the fame quan- tity of ftock, this is no ademption ; for, if the fel- ling of the ftock is evidence of his having altered his Intention, his buying in again is evidence, equally flrong, that he meant the legatee fhould f Ca. Temp, have it ^. If the teflator, after fuch bequefl of flock, fell out part, and die, fuch fale fliall be an y Ca.Temp. ademption pro ianto ^. Thus where A. bequeathed Talb. 326. ^ moiety of two-thirds of the refidue of his South Sea ftock, India, Bank, and Orphan flock, leafes, Eafl India and South Sea bonds, and other his perfonal eftate t© B. ; B. before he received this legacy made his will, and devifed this moiety to truflees, to fell and pay out of the fame the fum of two hundred pounds to C, and the refidue of the money to D : Afterwards B. and the legatee of the other moiety coming to an account with the executor of A., their refpeclive fhares were fet out and received, and the flock and bends were allotted Ch. V. OF CUMULATIVE LEGACIES. 26l allotted to B., who fold part of them in his life- time, but kept no account of the produce : This was decreed to be an ademption of the legacy to D. pro tanto. But it was held, that B.'s receipt of his Ihare was clearly no ademption ; inafmuch as the objedl both of B. and the other legatee was me-rely to afcertain their moieties, and to prevent furvivorfliip *. So it has been decided, that a bequeft of a debt fhall not be adeemed by the teftatcr's receiving di- vidends upon it under the bankruptcy of the ^ ^ ^^.^ ^^^ debtor '. Rcp. los. » Mof. 373. SECT. V. Of ciimulati've legacies. LEGACIES maybe alfo cumulative: they are contradiftinguifhed from fuch as are merely repeat- ed. As where a teflator has twice bequeathed a legacy to the fame perfon, it becomes a queflion, whether the legatee be entitled to both or to one only. And on this point likewife the intention of the icftator is the rule of conftrudion % ' 4 Bac. Abr. 361. I Bro.Ch. Rep. 3S9. On this head there are three claifes of cafes; ^B'o-Ch-Rep. firft, thofe cafes in which there is no evidence of fuch intention, either internal or extrinfic, one way S 4 or 262 OF CUMULATIVE LEGACIES. Book IH. or the other; thofe cafes where there is internal evidence ; and alfo thofe in which there is extrinfic evidence. In regard to the firft, where there is neither in- ternal, nor extrinfic evidence, it is neceflary to re- >• Hooiey v. ^^^ to the rule of law ^ There are four inftances Hjtton, I Bi-o. ch.Rep. 391. or this clais. in not. Where the fame ipecific thing is bequeathed to A. twice in the fame will, or in the will, and again in a codicil : in that cafe he can claim the benefit e I Bio. Ch. , r • 1 I I • Rep. .392 in only 01 one legacy, becauie it could be given no more than once ^ not- & ibid 3^3 Where the like quantity is bequeathed to him •5 1 Bro. Ch. twice, by one and the fame initrument ; there alfo not^' sSnb. lie Ihall be entitled to one legacy only ''. P 7. 1. 21. iBro.Ch.Rcp. n 1 • • r 30. in not. W'here the bequeil to him is of unequal quanti- 3Ai'!^iP.Wms. ties in the fame initrument; the one is not merged 4^4- ii^ the other, but he has a right to them both ^ « I Bro. Ch. Kep. 392. in not. Vid. And, laflly, where the bequeft to him is of equal Jiep.^21. or unequal quantities by different inllruments : in { I Bro.ch. that cafe alfo there Hiall be an accumulation ^ Rep. .^qr. x ip.Wms.42.3. There are likewife cafes in which there is inter- • ^-^ ^' 112.1 evidence of the teftator's intention; as where a latter codicil appears to be merely a copy of the former with the addition of a fmgle legacy, or where both legacies are given for the fame caufe : they Ihall Ch. V. OF A LEGACY TO A CREDITOR. ^^^ fhall not be cumulative, whether given by the fame, or different inflruments, as they fliall be where one is given generally, and the other fr-r an exprefs purpcfe ; or where one reafon is afligned for the former, and another for the latter. In like manner it may be coUecled from the context, whether the teflator meant a duplication, or a mere repetition of the firfc bequefl. And his intention has been inferred from very flight circumflances K ''6'^i zAtk"^^*' iBi-o.Cli.Rep! Extrinfic evidence is alfo admlflible on this fub- Rcp.^i!'" * je£l. Whether the teflator by giving two legacies ii*Wm$,4J4. did, or did not, intend the legatee to take both, is a queftion of prefumption, which will let in every fpecies of proof ^ Hence, if the teftator, after the ^ * Bro. Ch. making of the will, and before the date of the co- 4Bac!Abr. dicil, had an Increafe of fortune, that circumftance 36i-innot. has been held to prove that he intended an addi- •* i P. Wms, tional bounty ^. ^^'^' SECT. VI. Of a legacfs being in fatisfaciion of a debt. UNDER certain circumflances, a legacy Is re- garded In the light of a fatisfadion of a debt. On , b ai this point alfo, the intention of the teflator is the 36a. iSaik.* criterion % a Saii^iik a Fonbl. 53a. It 264 b I P. Wms. 405. not. (i.) Free. Ch. 3t,4- zP.Wins. I3■'-. 3p.Wms.3i3. iVef. 126. « 1 p. Wms. 409. net. (i.) * I p. Wms. 410.3 Atk.66. 68. Sed vid. Gaynor v. Wood, at the Rolls, cited iP.Wn)s.409« not. (i.) ^ 4 Bac. Abr. ezSalk. 508. a Vevn. 47'^' 2P.Wms.616. Mof. 2,95- f zFonbl.33t' prec. Ch.394. aSalk 508. 1Atk.300.49'- jP.Wms.5Jj. iVef 319- sPrecCh. 236. 1 Vern. 478. 2 Atk. 300. 3 Atk. 96. 3Br0.Ch.Rep. 129. iBro.Ch Rep. 195- 2 FonbI.33T. iiot.(m.) aVtf. 635.1 !^Wms. 409.101. (i.) k I p. Wms. 334. 409. not. (i.)aP.Wm8. 614. 2 Fonbl. 53-^. not. (o.) i 1 P. Wms. S59- OF A LEGACY TO A CREDITOR. Book III. It is a general rule, that a legacy given by a debtor to his creditor, which is equal to, or greater than the debt, fhall be confidered as a fatisfactioa of it *. But this is merely a rule of conflrudlion, and the courts in a variety of inftances have denied the ap- plication of it, where they have been able to collect from the will circumilances to repel the prefump- tion ". As where it contains an exprefs direction for the payment of debts '', or, if the legacy be lefs than the debt, it has. been held not to go in dif- charge, nor even in diminution of it ^. Nor fhall the legacy be a fatisfaclion, If it be conditional, or given on a contingency, for it iliall not be fuppofed, that the teftator intended an un- certain recompence in fatisfadion of a certain de- mand ^ Nor is a legacy confidered as a fatisfac- tion, where it is not equally beneficial with the debt in one refped, though it may be more fo in another ; as, where the legacy is to a greater amount, but the payment of it is poflponed for however fhort a period * : nor lliall a legacy be held to be in fatisfadion of a covenant, unlefs it be equally beneficial in amount, certainty, and time of enjoyment with the thing contracted for \ Nor if the debt were on an open or running ac- count, fo that the teftator could not tell, whether the balance was in favour of the legatee or not'. Nor if the debt were contracted after the making of Ch.v. of the abatement of legacies. 26 c of the will in which the legacy is given, fliall he be fuppofed to have had it in contemplation to fatisfy ^ ^^^^^ a debt that was not then in exiftence ". 33^. zSaik. 508. 1 P.Wms. 409. 2 P.Wms. But in all cafes the legacy Ihall be conftrued as 34i-3P-Wras. $1 fatisfadion, in cafe there be a deficiency of affets. 353' SECT. VII. Of the abatenmit of legacies — of the refunding oflega^ aes — of the refiduum. IN cafe the eftate be fufficient to anfwer the debts and fpecific legacies, but not the general le- gacies, they are fubjeft to abatement, and that in equal proportions ; but in fuch cafe, nothing fhall be abated from fpecific legacies \ ^ Bi.Com'fit' I P.Wms. 679. Nor fhall a fum of money bequeathed by the teftator in fatisfadion, or recompence of an injury done by him, abate any more than a fpecific le- gacy ^ But a legacy, although devifed to be paid "^Fontl.s??. in the firft place, fliall abate, if the fund be infuf- \ ^IrT^s'if ^" cient for the legacies % unlefs, perhaps, it be a ^ ^ ^^j. ^^^^ provifion for a wife ^ So a devife of a perfonal evid.fupr.23 7. annuity is not, as we have feen % a fpecific legacy, ^ ^^^ ^ but a legacy of quantity, and liable to abate ac- * Vef. 417- ^ ,. ,^, "^ ^ ■" Sedvid. 1 Vef. cordmgly \ ,33. If ^^^ OF THE ABATEMENT OF LEGACIES. Book III. If A. devife fpecific and pecuniary legacies, and dired; by the will that fuch pecuniary legacies fhall come out of all his perfonal efhate, if there be no other perfonal eftate than the fpecific legacies, they muft be intended to be fubjeft to thofe which are pecuniary, othervvife the bequeft to the pecuniary gPrec.ch.393. legatees would be altogether nugatory «. So a le- *78.'" ^^" g^cy in favour of a charity, although preferred by the civil law, fliall by our law abate equally with '//; JT/- other general legacies ^ 265 401. o7j. o o a r. VVms.25. But in cafe of a deficiency of general affets, that is to fay, of affets to pay debts, fpecific legacies, al- though not liable to abate w^ith the general lega- ". aFonW. 377. ^j^g^ xiWx^i abate in proportion among themfelves '. aP.Wms. 381. aVern. 111.'' We have before feen ^, that a teflator may carve s Vid. fupr. fpecific legacies out of a fpecific chattel ; now, in ^36. fuch cafe, if the chattel fo parcelled out prove defi- cient, fuch fpecific legacies muil abate proportion- JaVef.jSj. ally among themfelves ', Such Is the advantage to which a fpecific legatee is entitled, that he fhall not contribute with the other legatees in cafe of a deficiency. But on the other hand he is fubjecl to a rifque j as for example, if fuch fpecific legacy be a leafe, and there be an eviction, or, if goods, they be miilaid, or burnt, or, if a debt, it be loft by the infolvency of the debtor; in all thefe inftances fuch fpecific legatees fhall re- in T p Wms • •» • ir. ^^gj^e no contribution™. 540. On Ch V. or REFUNDING LEGACIES. 267 On the fame principle, legatees in certain cir- cuniftances are bound to refund their legacies, or a rateable part of them, as in all cafes of a deficiency of alfets for the payment of debts ". If the fund Y;^^^'^';^;!'-^^ be merely infufEcient to pay the legacies, and the 2 ventr. 360. executor pay one of the legatees, a diftinftion is to be remarked between cafes, Vv'here fuch payment was volunrary, and where it was compulfory'; and alfo between cafes in which the aflets were origi- nally deficient, and where they became fo by his fubfequent miiapplicatlon of them. If the execui- tor paid the legacy voluntarily, the law prefumes, that he has fufncient to pay all the legacies, and the other legatees can reforc only againfl him. The legatee, who has been paid, is fubjeft to no claim o^vef. r94. on the part of the other legatees"; provided, ac- aVern.ao..;. cording to fome authorities p, the executor be fol- ^ ^^^^^- '94- vent ; but if the executor prove infolvent, fo that there are no other means of redrefs, the court will entertain a bill, to compel fuch legatee to re- fund. In cafe the affets appear to have been originally deficient, if the executor, either voluntarily or by compulfion, pay one of the legatees, the reft (hall make him refund in proportion. And, even if fuch legatee obtain a decree for his legacy, and be paid, the other legatees may oblige him to refund in the fame manner. But if the executor had at firfl: enough to pay all the legacies, and, by his fubfe- quent wafting of the affets, they become deficient, ill that cafe fuch legatee (Iiall not be compelled to refund. 258 OF PAYMENT OF THE RESIDUUM. BookIIL refund, but fliall retain the benefit of his legal dili- gence in preference to the other legatees, who ne- • glected to inftitute their fuit in time; by which they might have fecured to themfelves the fame ^iP.Wms. advantage 'J, 495. not. (i.) ^ tP.Wms. 446. Nor is a legatee bound to refund at the fuit of the executor, unlefs the payment by him were com- »2Vern.ao5. pulfory ', or unkfs the deficiency were created by debts, which did not appear till after the payment » I Cb.Ca.136. of the legacy ^ : in either of which cafes, the exe- cutor as well as a creditor, may compel the legatee to refund the legacy ; for an executor who pays a debt out of his own purfe ftands in the place of a creditor, and has the fame equity as againft fuch t 4 B«c. Abr. legatee \ 4aS. Vin. Abr. o tit. Dcvife, (Q:, When the executor has paid all the debts, and all the legacies abovementioned, pecuniary, and fpecific, he mull: in the laft place pay over the fur- • a Bl Com. plus, or refiduum to the refiduary legatee ". And Abr. 428. * although the refiduary legatee die before payment of the debts, and before the amount of the fur- plus is afcertained, yet it (hall devolve on his rcprc- y Carth. 52. fentative "", If A. bequeath all the furplus of his perfonal cftate, after paym.ent of the debts, and legacies, to J. S. and feveral creditors, although barred by the (latute of limitations, commence aclions againlt the executor, on his refufal to plead the llatute, equity Ch.v. Of an EXECUTOR'S, being legatee. 260 equity will not in favour of fuch refiduary legatee ^^.Bac.Abr. compel him to plead it ^ , 429 i Eq- ca. '^ ^ ■ * Abr. 305. n Vin. Abr. 269. Free. ■ Chan. 100. SECT. VIII. 0/an executor's being legatee: and herein efhis ajjent to his own legacy. IN cafe of a legacy bequeathed to the executor, if he take poffeffion of it generally, he fhall hold it as executor, which is his firft, and general au- tnority . 84. loCo. 47. Plovvd. 520. 543' !• Co. The union of the two characters, of executor 47- b. Dyer and legatee, in one and the fame perfon, makes no ^'^' ' ^^'^'^' difference ^ His alfent is as neceffary to a legacy's ^OfF.Ex.ax*, vefling in him in the capacity of legatee, as to a legacy's vefting in any other perfon, and that on the fame principle. Till he has examined the flate of the aflels, he is incompetent to decide whether they will admit of his taking the thing bequeathed as a legacy, or whether it muft not of neceffity be c off. ex. applied in fatisfadion of debts '', a?. His affent to his own legacy may, as well as his affent to that of another legatee, be either exprefs, or implied. He may not only in pofitiv^e terms announce his election to take it as a bequefl, but fuch election may alfo be implied from his lan- guage ^^^ OF THE EXECUTOR'S ASSENT. BookIIL tf Com. Diij. g"^ge» o^ l^is condu6t ''. As if he fay, that he Admon.c. 6, ^.jn {^-^yg ||- according to the will, that amounts to ^' * an alfent to have it as legatee •=. So, if a term be devifcd to A. the executor for life, and afterwards to B., if he fay that B. will have it after him, that { iLcv. tj. implies an eledion to take it as legatee ^ So, if, by deed reciting, that he has a term for years by 8 I Roll. Aar. jg^jj^^ j^g grants it over " ; or, if he take the pro- h J Roii.Abr. fits of it to his own ufe ^ or, if he repair the te- ^'9- nements devifcd at his own expence'; all thefe ' Scmb. jj£^s indicate an affent to the bequeft : In like man- ner, if he perform a condition or truft annexed to the devife ; as, if a leflce for years devife his term to his executor, on condition that he lliall pay ten pounds to J. S., which he pays accord- ingly ; this payment amounts to an eleclion on his part to take the leafc as a legacy, and it is in law an execution of the legacy for ever ; for he who performs the charge of a thing claims the benefit t5 Plowcl. 544- which is annexed to it ^. So, if a Icafe be de- vifcd to an executor during the minoiity of the teflator's fon, in order that the executor may edu- cate him out of the profits, if he educate him ac- cordingly, this conftitutes an affcnt to take the I Plowd. 539. leafe by way of legacy, and not as executor', or, if he exclude a co-executor from a joint occupancy ttDyer,277.b. of the term with him"', that is alfo an agreement to the legacy. An affent to take part as a refi- « a Roll. Rep. duary legatee, is an alfent alfo to take the whole refidue in the fame charafter ". But, Ch. V. TO HIS OWN LEGACY. 271 But, till the executor has made his eletiillon, cither exprefs or implied, he fliall take the legacy as executor, though all the debts have been paid \2^'!'■^^;^^^^ independently of fuch bequeft ". i Leon. 216. Nor is the entry of an executor whether before or after probate on the term deviled to him, an eleaion to take it as legatee p. Nor, if he merely ^dXi.^c\ 7. fay, that the teftator left all to him % will fo ambi- off. Ex.aao. guGus an expreffion have that efieft. Yer, if an " ^J^^^^- Abr. executor, being alfo devifec of a term, grant a leafe of it by the name of executor, that aniounts to a claim in fuch capacity '. ' » Leon, a 16. If a legacy be left to A. as executor, whether cxprefsly for his care and trouble or not, he mull either acl, or diftinctly fliew his intention to aO:, before he fliall become entitled to it ». RepTg^s 3 Vei.jun. 14? Bro. Ch. ). 95. :i.jun. 14? 4Vef-jun. 21Z. The rules above jflated In refpe£l to the abate, ment and refunding of legacies in the cafe of le gatees in general, apply equally to the cafe where 54!/rin*i^ot. the fame perfon is both executor and legatee S and u ^ Ra^. ^br although the bequeft were merely as a recompence for his executing the truft ". « Plowi 4'-?. z Vein. 434- SEC T. 272 OF A DEBTOR'S BEING EXECUTOR. Book III. » 3 Bac. Abr. II. 2BI. Com. 511, 512. Off. Ex. 31. Salk. 299. Plovvd. 186, Com Dig. Admon. B.j. Roll, Abr. 910,921.5 Co. 30. Hargr.Co. Litt. 264. b. ilOt. I. •» 8 Co. 136. « Off. Ex. 31. 11 Vin. Abr. 398. J Off. Ex. 31. •Off. Ex. 32. Plowd. 264. I/Con. 320. f Salk. coo. Piowd. 184. Off. Ex. 31. s Salk. 308. k Salk, 307. SECT. IX. Of the teftaior's appointing his debtor executor — When the debt Jloall be regarded as a Jpecific beqiiejl to him — JVhe7i not, IF a creditor appoint the debtor his executor, fuch appointment Ihall operate as a releafe, and extinguifliinent of the debt, on the principle, that from that aft of the teftator it may be reafonably inferred that fuch was his meaning. The debt, under thefe circumftances, is confidered in the nature of afpecific bequeft or legacy to the debtor, for the purpofe of difcharging the debt ^ Thus, if the obligor of a bond make the obligee execu- tor, this am.ounts to a releafe of the debt ^ If feveral obligors be bound jointly, and feverally, and the obligee conftitute one of them his execu- tor, it is an extinguiiliment of the debt, and the executor is incapiible of fuing the other obligors ". The debt is alfo releafed, where only one of feve- ral executors is indebted to the teftator ^ ; and after the death of fuch executor, the furviving executors cannot fue his reprefentative for the debt \ Nor is the cafe varied by the executor's dying without having proved the will, or having adminiftered ^ or even by his refufal to aft with his co-executors ^, unlefs he formally renounced the office in the fpiritual court : fuch a renuncia- tion, indeed, fhali prevent the releafe of his debt ; for he could no more be compelled to accept a releafe, than » deed of grant \ la Ch. V. OF A DEBTOR'S BEING EXECUTOR. 27-3 In all thefe cafes the remedy is defiroyed by the 2.6: of the party, and, therefore, Js for ever gone ' ; sSS'?oY.^^^" but the effeft is different where it is fufpended » Venir. 303. merely by the ad of law ^, and where, confequent- *" Salk. 303. ly, there is no room to infer any intention on the part of the deceafed to releafe the debt ; as, if ad- mini (Iration of the effects of a creditor be com- mitted to the debtor, this is only a temporary pri- vation of the remedy by the legal operation of the erant '. Thus, if the obhVor of a bond adminiiter ' Off. Ex iz. , . ^ , .8 Co. 136. to the obligee, and die, a creditor or the obligee, having obtained adminiftration ds boms non^ may maintain an action for fuch debt againfl the exe- cutor of the obligor "^. So, if the executrix of an m sid. 79. obligee marry the obligor, fuch marriage is no re- leafe of the debt, for the tefiiacor has done no ad cxpreffive of an intention to difcharge it, and the hulLand may pay it to the wife in the charader of executrix. If he do not, the remedy is fufpended merely by the legal effed of the coverture, and on her death, the adminiffrator de bonis non of the teftator will be equaliy entitled to that debt, as to any others outRandirg ". p»iocre 7.?6. ' Nor will the law fuffer fuch an intention of the teftator to be carried into effed, where he has not left a fund fufficient for the payment of his own debts, and, in that cafe, the debt of his executor ihall be affets. It were highly unreafonable that the claims of creditors fliould be defeated by a releafe, o g-ak, -c. which was abfolutelv voluntary". Such difcharire, ^"^^^ OiTEx. however, ihall in general be preterred to legacies. 51-. plowd. T 2 For, i3S. OF A DEBTOR'S BEING EXECUTOR. Book III. 274 For, as I have already obferved, the debt is con- fidered in the light of a fpecific bequeft to the debtor, and, therefore, though like all other lega- cies, it fhall not be paid or retained till the debts are fatlsfied, yet the executor has a right to it ex- \z ^Ha^T' clufivc of the other legatees p. Co. Litt. 264. b. not. I. j^Q^ ^^Ij f^^j^ jj,.|3j. |3g releafed even as againft legatees, if the preiumption arifing from the ap- pointment of a debtor to the executorfhip, be contradicted by the exprefs terms of the will ; or ' by ftrong inference from its contents. As where a teftator leaves a legacy, and direds it to be paid out of a debt due to him from the executor ; fuch debt fhall be aifets to pay not merely that fpecific 1 3 Bac. Abr. jecracv-. but all other legacies ''. In like manner, if 11. Yelv. 160, o -^ ' o . . he leave the executor a legacy, it is held to be a fufficient indication, that he did not mean to releafe the debt. And, in fuch cafe, the executor (hall be truftee to the amount of the debt for the refiduary ' Carey v. legatee, or next of kin \ So, where a teftator 3 Bro. eh. bequeathed large legacies, and alfo the refidue of Rep. 110. his eftate to his executors, one of whom v\^as in- debted to him by bond in three thoufand pounds, it was decreed that this debt Ihould be added to the furplus, and that both executors were *Ca. Temp, equally entitled to it'. It feems, alfo, that the 3 Bac^Abr." 1. naming of a debtor executor, durante minor it at e^ is no difcharge of the debt ; fmce he is only 400 Lwd ' executor in truft for the infant, till he comes of Raym. 605. ^gg t^ SECT. Ch.v. of the res -due undisposed of. 275 S E C T. X. Of the reft due undfpofed of by the will, -when it fid all go to the executor — When not. IF the tellator make no difpofitlon of the refi- due, a queftlon arifes, to whom it fhall belong, and this is a fubjecr which involves in it a great ^^^^ ^„o^'"^) variety of diftinftions \ ^ ^^']^\- ^y- •' iiot.(k.) 3 Bac. Abr. 67. I J The refult: of the numerous cafes on this fubject '"' '" '^"'^' appears to be this : The whole perfonal eftate of the tellator is, in point of law, devolved on the executor ; and if, after payment of the funeral expences, teflamen- tary charges, debts, and legacies, there (liall be any furplus, it fhall veft in him beneficially. If it fhall appear on the face of the will, either exprefsly, or by fufficient implication, that the tef- tator meant to confer upon ijini merely the ofHce, and not the beneficial intereft, equity will convert the executor into a truftee for thofe on whom the law would have caft the refidue in cafe of a com- ' ^ P- ^'^s. 550. not. I. plete inteftacy ; that is to fay, the next of km. 2 Vern. 99. As, where the teflator has ftyled him in his will I Ati-.Tg.'^'" an executor in trull:, or has ufed other expreffions ai''o. Ch. ' n 1 Rep. 634. of the fame miport '. So, where the teltator has :,Bro. Ch. begun to make a difpofition of the furplus, but fy^lsl' l^i^""' T 3 has I vef.juu 63. 276 « I p. Wms. 5<;^. not. I. Mofcly a88. •2 Vef. 91. 495. 2 Vef, juti. 7S. " 1 P. Wms. 550. not. I. Ambl. 769. .•^ iiro. Ch. kcp. zS. f 2 Foriblisi. nat. k. z Vef. 97, I Vern. 473. 2 p. Wms. 357. 2. Vcrn. 348. aAtk 46. y I p. Wms. 5i:o. not. I. 2 Fonbl. 131. not. k. a Vern. 676. Bunb. 3i2.iF.Wms. 544. 3 P.Wms. 40. Free. Chan. 107. 2 a Vern. 425. 3 Atk. 226. I Bro. Ch. Rep. 154. » 2 Fonbl. 131- not. k. 2 Vern. 361. Mofely a88, 4 Vef. 162. I Vef. jun. £6. in not. OF THE RESIDUE UNDISPOSED OF. Book III. has not proceeded to complete it, there, alfo, the executor (hall be excluded. As where a refiduary claufe is inferted in the will, and the teflator has omitted to name the refiduary legatee ". Nor, where the teftator has regularly bequeathed the furplus, although the refiduary legatee firft die, and confequently it be undifpofed ot' at the time of the teftator's death, fliall it belong to the execu- tor ''■. Nor fliall the executor be entitled to it where the teftator has given him a legacy exprefsly for his care and trouble, for that is a itrong cafe on which to raife a refuking trufl, not merely on the abfurdity of fuppofmg a teftator to give a part of the fund to that perfon, for whom he intended the whole ; but, as it is evidence, that he confi- dered him as a truftee for fome other, who (liould be the objeO: of the care and trouble, for which the bequeft was meant as a compenfation ^ Still, however, the principle, that it fhall not be pre- fumed to have been the teflator's meaning thus to give part and all to the executor, has been allowed, alone and unaided, to operate as an exclufion. Hence it is a fettled rule in equity, that a pecuniary legacy bequeathed to an executor, affords a fuffi- cient argument to debar him of the refidue \ If the legacy to the executor be fpecific, it fliall equally exclude him ^. Nor will the rule be va- ried by the teftator's having bequeathed legacies to the next of kin '. For it is founded rather on an implied intent to bar the executor, than to create a truft for the next of kin j and, therefore, if 277 Ch. V. OF THE RESIDUE UNDISPOSED OF. if the executor have a legacy, and there be no next of kin, a truft fhall refalt for the crown ^. It is ?. ^ ^^^' ^^' alfo fettled, that in cafe the widow of the teftator c d \nr \ . . , ^ I r. \Vm3. be executrix, fhe is, in reloedt to the refidue, pre- »i5- .553- not. cifely in the fame fituation as any other perfon ap- ,30^ not. i." pointed to the office '' ; unlefs the bequefl to her of f E^^cV^br a fpecilic legacy confiftin;^ of property which was 444- i Bro. her s berore marriage, may vary the rule ''. d ^ Forib!.i30. not. i. 7 Cro. In refped to that clafs of cafes, in which the ex- ^^- ^•5^'- ecutor fhall be entitled to the refidue, although he be a legatee, it may be Hated as an universal rule, that wherever the legacy is confiftent with the in- tent, that the executor fliould take the whole, a court of equity will not diilurb his legal right. And, therefore, where a gift to an executor is only an exception out of another legacy ; as if a library be bequeathed to A., out of which the executor is to fele6l ten books for himfelf ; it fhall not exclude him from the refidue, inafmuch as it was neceffary to make an exprefs exception *^. Nor where the cxecutorfhip is limited to a particular period, or ii'fc.Cinn determinable on a contingency, and the legacy to Abr.444.pi.58. the executor, at the end of fuch period, or on 3 .^t^; \^^ fuch contingency's taking place, is bequeathed Vid__aifo7Bro. over, fnall it defeat his claim to the furplus ^ Nor fhall a gift of only a limited interefl for not. k." Prec.^* the life of the executor have that etfeQ: ^. ^^""- ^^3- For in thefe cafes the legacy is confidered as an g ^ Ponbl. exception out of the general jrift to the devifee -^•;"°'-'^- over, and therefore not fuch a legacy as mail ex- Prec.chan. 4 elude juij.356. e I P. Wms. 550. not. I. 278 OF THE RESIDUE UNDISPOSED OF. Book III. dude the executor from the refidue, fince it does I1 I p. Wms. . , , ,ri- r-- ri 116. not. I. not involve the ablurdity or giving expreisly a part ^vhere the whole was intended to be given ^ But i via. Prec. t^"^^ limited executor has an intereft in the refidue in Chan. 264. only while his executorfiiip continues, on the de- termination of which it devolves on the general ex- * aFonbl. 13?. ^ i rot. 1. 2 P. ecutor '. Wms. ij8. aVerJis. That parol evidence may be received for the I Vc .jun 35 . p^j-pofg of rebutting a refulting trufl, is fufficiently 1 2 p. Wins, eilabliflied by a feries of cafes; but it is admitted 359! ''■•''• •with great caution ^y and reflrided to what palTed at the time of making the will '. CHAP. ( 279 ) CHAP. VI. OF THE IN CO M PET EN Cr OF AN INFANT EXE- CUTOR—OF THE ACTS OF AN EXECUTOR DU- RANTE MINOR IT ATE— 0/" A MARRIED WO- MAN EXECUTRIX — OF CO-EXECUTORS — OF EXECUTOR OF EXECUTOR— OF EXECUTOR BE SON TORT. N infant, as It has been already dated % is a Snpr. 12. 73, now, by the ftat. 38 Geo. 3. c. Sy. incapable of the fundions of an executor, till he fhall have attained his full age of twenty-one years. Nor be- fore the palling of this ftatute was an infant com- petent to aft, till he had arrived at the age of fe- venteen''; but at that a^e he had a right to alTurne '' Of^-Ex.214. u n- TTUJ u- rnu' RolI.Abr., the executorihip. He had authority to lell the 730. Scdvid. teftator's effefts, to pay and receive debts, to alTent , Leon '^i'//*' to, and pay legacies, and, generally, to difcharge K^iiw. 51. L 1 • 1 • r" , , 1 r • r ? zSaiind. 211. the duties which belong to the reprelentative or the 1Bi.C0m.463. deccafed *". Yet if an infant executor, after the age c ^^-^c Abr s of feventeen, and before the age of twenty-one, Off. Ex. 2.5. years, releafed a debt due to the teftator without Com. Dig. actually receiving it, fuch a releafe was held to be void : or, if he received only a part of it, it was yoid for the remainder ; for otherwife he would have been divefted of that privilege, which the law allows to all infants, of refcinding their acts when they are manifeRly to their difadvantage. Nor could Admon. E. 28o ••jBac.Abr.S. 5 Co. 27- OtF. Ex. ai7. ai8. Com. Dig. Admon. E. Moore 146. Cro. Elii. 671. Cro. Car. 490. e Off. Ex. 217. 2,25. t lYcrn. 328. s 3 Bro. Ch. Rep. 195. hVid. fupr. 13. 73- \ Off. Ex. 415, si6.Coin.Dig. Admon. F. * Supr.xS?. OF A LIMITED EXECUTOR. Book III. could a proceeding prejudicial both to the infant, and to the eftate, be regarded as purfuant to his office ''. On the fame principle the afient of fuch infant executor to a legacy did not bind him, un- lefs he had alfets for the payment of debts ^ Nor had he a power of committing any other adl which might involve him in the confequences of a devaf- tavit ^ Nor, in a late cafe, would the court of chancery diredt money to be paid to an infant exe- cutor, although he had attained the age of feven- teen ; but referred it to a mailer to inquire, whe- ther there were any debts or legacies, and to con- fider of a maintenance ^. But thefe diftindions it is now needlefs to difcufs, the llatute having altogether difqualined an infant executor from exercifmg the office during his mi- nority, and having directed adminiftration with the will annexed, to be granted to fome other perfon in the interim ''. If A. appoint B., an infant, his executor, and C. executor during the minority of B. C. though only a temporary executor, feems, during the con- tinuance of his office, to be inverted with the fame powers as belong to an abfolute executor ; and al- though he be named in the will adminiftrator only for the benefit of the infant *, In cafe a married woman be executrix, the huf- band, as we have before feen ^3 has a right to a6t in the adminiftration with, or without her confent. Q He Ck. VI. OF A MARRIED WOMAN EXECUTRIX. ^Sl He is empowered to reduce into poflfellion, ot to difpofe of the property by way of gift, fale, furren- der, or releaie, to receive, and pay debts, to aflent to, and pay legacies, and to elect for his wife to take as legatee". On the contrary, fuch atls, if a?""^'^^- o J ' ' Admon. D. performed by her without his permifTion, are of no off. Ex. loy, validity ". If the hulband be abroad, the court of T^^' chancery will reft rain the executrix from getting n3Bac.Abr.9. in the affets of the teftator, and appoint a receiver off'r.x' oot for that purpofe, with power to commence fuits for so''- Vid. , ^ , , - inn Andert. 117. the recovery or debts due to the eltate . i Roll. Abr. 9Z4. And this doclrine is founded on the principle, "^Atk. 2-3. that as he is perfonally refponfible for fuch acts, the law makes it eflential to their validity, that they fliould be performed by him, or at lead with his concurrence : otherwife the mifcondudl of the wife in the executorfhip might be extremely prejudicial to the huiband \ p Off. Ex. ac?, 2c8. 325. IFOnbl.84.86. Yet, if an executrix marry, and the hufband ^ ^°' ^^' elloine the goods, or is guilty of any other fpecies of devajiavit^ it will be a devafiavit alfo by the wife, and they will be both anfwerable accordingly ^. q Com. Dig. On the other hand, if an executrix commit a de- cto.Cal-. cic. vajlavit, and then marry, the hufband, as well as Dyeraio.in the wife, is chargeable for it during the cover- Ch. Rep. 323. ture ■■. r Com. Dig. Baron \Fcnie, N. v 10. Car. If the teflator were indebted to the hufband, or, ^°3- Moote 761. which is the fame thing, to the wife, before mar- riage, the hufband may retain. If 2g2 OF CO-EXECUTORS. Book HI. If the huftaiid were indebted to the teftator, the making of the wife executrix is equally a releafe of the debt, as if flie had been the debtor; although if an executrix after the death of the teftator marry » Off. Ex. ao7. fuch debtor, it will be a devajiavif. If fpecific legacies are left to a hufband and wife jointly, and they are named executors, fuch lega- cies ihall exclude them from the refidue, for they are analogous to a fpecific legacy to a fole execu- » I p. Wms. tor *. 550. not. 1. ad fin. Barnard- ^^- Co-executors, we may remember, are regarded in t vid. fupr. law as an individual perfon * ; and by confequence, the afts of any one of them in refpecl to the admi- niftration of the eifecls, are deemed to be the ads of ail : for they have a joint and entire authority « 3 Bac. Abr. over the whole property ". Hence a releafe of a i°Ro!i. Abn"'" debt by one of feveral executors is valid, and fliall 924.C0m.D1g. ]y{T^^ xht reft"^. So a grant, or a furrender, of a Admon. B. 12. o ' ' WD • b term, by one executor, fhall be equally available \ It has been likewife held, that if one confefs a » Dyer 23. b.. judgment, the judgment fliall be againft all >'. But on the contrary, where there were three executors, one of whom gave a warrant of attorney to confefs judgment againft himfelf and his co-executors, pur- yDyer23.b.in f^ant to which a- judgment was entered againft all not. JO o the executors de bonis icfiatorh^ for the debt, and againft the executor who gave the warrant, de bonis propriisy for the cofts; it was fet afide, on the ground that executors may plead different pleas, .an<^ that which is moft for the teftator's advantage, (hall Ch. VI. OF CO-EXECUTORS. ^Sl fhall be received ^ If one executor grant or re- »stra. ^o.Vid. leafe his interefl in the teftator's eflate to the other, jAtk?46c!^* nothing fliall pafs, becaufe each was pofiefTed of the whole before '. h has been adjudged alfo, that if 3*1jfc. Abr!^!; one of two executors appointed by the obligee de- liver the bond to a (Iranger in fatisfaction of a debt due from himfelf and die ; although the debt as a chofe in action could not pafs by the affignment, yet by this delivery the party had fuch an intereft in the inftrument, that he might juflify the deten- tion of it as againfl the furviving executor''; but 46^Dyer2-'^b the law of this cafe feems very dubious, inafmuch Cro.Eliz. 478, 496' as the debt not being alTignable, could not pafs by the delivery of the obligation ". *= 3 Rac. Abr. 31. in not. One executor fhall not be allowed' to retain his own debt in prejudice to that of his co-executor in equal degree, but both fhall be difcharged in pro- daFonbl ir- An affent to a legacy by one of feveral executors is fuiEcient % And if there be a devife to all the ^ t^. e Com. Dig. executors generally, one of them may afTent for his Admon. c. 8. ^ f ' Off. Ex. as?. part . ^ ^ f I Roll. Abr. 618. Co-executors, as well as a fole executor, fhall be excluded from the refidue, either in cafe the tefla- tor fliall have exprefsly defcribed them as mere truftees, or, according to the fair conflruftion of the will, appears to have fo confidered them, or, in cafe he has made an imperfett difpofition of the refidue, as where he has infer ted a refiduary claufe without 284. OF CO-EXECUTORS. Book III. 1 1 P.Wms. 7. & <;50. not. i. 2 Fonbl. 133. in not. }■' 4 Fonbl. i: in not. i I P.Wms. 550. not. I. Prec. Chan. 323. 4Bro. F.C.I. aVef. 91. 166, 167. z Fonbl. 133. in not. a Atk. 220. fc I P.Wms. 553. not. 1. a Atk. 69. iBio Ch.Rep. 328. 2 Fonbl. 1-4.. in not. 2. Vef. 27. I I P.Wms. 7. 3 Bro. Ch. Rep. no. » 1 P.Wms. 550. not, I. without proceeding to fpecity the refiduary legatee; or where he has bequeathed the furplus to a party^ who died before him s. But if a legacy be given to one executor ex- prefsly for his care and trouble, and no legacy given to his co-executor, it is a point unfettled, whe- ther in fuch cafe they fhall be barred of the refidue*". This, however, is clear, that if there be two or more executors, a fniiple legacy to one fhall not exclude them, for the tefiator may have intended a preference to him to that extent '. So, where feveral executors have unequal legacies, whether pecuniary or fpecific, they lliall neverthelefs be en- titled to the furplus ^ But where equal pecuniary legacies are given to co-executors, a truft fliall re- fult for the next of kin '. The arguments which have been urged in oppofition to this rule, and to fliew that the giving of equal pecuniary legacies to feveral executors, is not abfolutely inconfiflent with an intention that they fliould take the furplus, are, that fuch gift would fecure to them a proportion of their legacies in the event of a deficiency of af- fets, which applies equally to the cafe of a /ok ex- ecutor; and, that they would take the legacies feverally, whereas the refidue would belong to them jointly. Yet the rule has long prevailed, as above ftated™. No cafe, hov.ever, occurs in the books, in which diflind: fpecific legacies of equal value to feveral executors have excluded them from the refidue. And the argument, v/hich fupports the rule as to pecuniary, by no means applies with equal 28s Gh. Vr. OF A REMOTE EXECUTOR. equal force to fpecific legacies, fince it is very pro- bable, that a teftator may wifh to diftribute fpecific quantities of ftock, or particular debts among his executors in fome particular manner, although equally in point of value, and confidently with an intention, that they fhould take the furplus '. ' i P. Wms. S50. not. I. 2 Fojibl. 134, Nor does the cafe juft mentioned "', of fpecific le- '" ""^• gacies bequeathed jointly to a hufband and wife "" Supr zJt. who are named executors, bear upon the point ; for, as it was before obferved, it is fimilar to that of a fpecific legacy to a fole executor ". ^^o n^t.T.^'ad fin. Barnard. .64. The power of an executor is not determined by the death of his co-executor, but furvives to him; and therefore, it is held he may alTent to a le- c ^ » Com. Di?. gacy . Admon. B.^a. 3 Atk. 509. I Vef. 9. As a mediate or remote executor has the fame intereit in the elfe*lls of the original teilator, as the immediate executor, he is inverted with the fame , authority, and privileges, and is bound to admini- fter fuch efFecls in the fame manner p. But in cafes p Com. Di>. of fpecial trufl confided to the executor without the ofF. Ex. 257, ordinary limits of his duty, as to fell land, and the ^^^' like, if it be not performed by the original execu- tor, no fucceffive executor as fach, Ihall have au- thority for that purpofe \ !-?5"^^' "^^' In refpe£l to an executor de /on tort, he may perform a variety of a£ts, which fhall be as binding as thofe of a rightful executor \ As againft crcdi- ^.'^ ''p-^^'"-^^- tors. 2 35 OF AN EXECUTOR DE SON TORT. Book llh * Off Ex i8i ^°^^' ^^ ^^ juflified in paying the debts of the de- 182. ceafed % and indeed may be compelled to pay them, t z Bl Com. fo far as aflfets come to his hands ' ; and to an action ^11' h^^^ brought againfl him by a creditor, he may plead s <-»>• 30- (jai'th.'^ioV' In cafe the rightful reprefentative fhall think fit Sid. 76- tQ purfue his Itgal remedy againfl fuch an intruder, he has no defence ; as, if it be by adion of trover for the goods of the teftator, the executor de Jon tort cannot plead payment of debts to the value, or that he hath given the goods in fatisfaclion of the debts ; for he had no right to interfere. w Com. Dig. Yet on the general iffue pleaded, he may give in f£?Abi-'.is. evidence fuch payments, and they fhall be deduced earth. 104. from the damages ^^ or, if they amount to the full offTJEx^iSa!' value, the plaintiff fliall be nonfuited \ But it may ' ^'" Ki ?tm be doubted, whether in fuch aftion the defendant 508. can give in evidence payment of debts to the value ^ L. ofNi. Pr. of fuch goods as are ilill in his cuflody, or only of '^^' ^. thofe which he has fold r. If the adion be trefpafs 48.'°2Mod. ^' inftead of trover, payment of debts to the value ^'^^' will go only in mitigation of damages % and the Is^oi'^S'Ir. plaintiff will be entitled to a verdia. •9 441 The ground of the diftin6lion feems to be this : in trover, his poffeffion is admitted to have been law- ful, and the fubfequent diftribution negatives the converfion ; but in trefpafs, the unlawful taking is the fubjed matter of complaint, to which the diffri- bution is not an anfwer. Nor, Ca. VI. OF AN EXECUTOR DE SON TORT. 287 Nor, i'l any cafe fliall fuch payments be allowed to nonfuit the plaintilr, or to leflen the damages, if there be a failure of affets, and the lawful executor would by thefe means be divefted of his right of preferring one creditor to another of equal rank, or ^ ^ ^j ^ giving himfelf the fame preference \ j'-8. os.Es. Nor ihall an executor de /on tort, derive any ad- vantage from the wrongful charader which he has ailumcd. He is not entitled to bring an adion in right of the deceafed '', nor is he empowered to '' ^ Bl. Com. retam m iatisraction or his own deot : ror luch a tit. Aimnr. 8. privilege would enable him to profit by his own ll^^^Aj^dcri,. tortious afts, and would tend to encourage a com* 39- P^-^s- petition of creditors, who fliould firft take poffef- fion of the teftatcr's efteds, without any legal au^ thority % * a fei. Com, « 511. 5 Co. 30. Moore 527, There is, indeed, orte exception to this rule ; a party who, by flat. 43 Eliz. c. 8 ''. becomes an ex- ^j^Jf^^^'c^-'^* ecutor de Jon tort, in confequence of a gift to him Off. Ex. 182, of the inteftate's effedts by an adminiftrator who innot. &vid*, has obtained the grant fraudulently, is by the ex- ^"P'"' ^5° prefs provifion of that t^O: allowed to retain. But in all other inftancec, an executor de/on tort is ex- cluded from this advantage. Nor fhall he retain for his own debt, even againfl a creditor of inferior degree \ Nor, after an action brought againft him « 3 Bac. Air. by a creditor, can he avail himfelf of a delivery cro.'Eii?! 630. over of the eifeds to the rightful adminijflrator, ' ^^''^ ^^^' ' " 928. though before the filing of the plea, nor of the af- fent of the adminiftrator to his retainer of his debt, U Nor 288 OF AN EXECUTOR DE SON TORT. Book III. Nor is the cafe varied, although in point of fa£t no adniiniilration were granted at the time of the com- mencement of fuch fuit, and the defendant without Vernon, * delay reh'nquiflied the property to the grantee*". 3 Term Rep. t?;. affirmed in Exch. If the exccutor de fon tort deliver the effe6ls to' Bl. 26. * the adminiftrator before fuch a£lion brought, that is a fufficient defence, and he may give it in evi- s I Salk. 313. dence on the plea oi plene adtninijlravit K The grant of adminiilration to fuch executor (hall i" Com. Dig. legalife his previous a<^s ''. Thus, vv-here he takes Moore J26. polTeflion of the teflator's goods, and fells them, and ^rl^'^H.BU^c. afterwards is appointed adminiftrator, fuch fubfe- 5 Mooje jj5. qucnt grant fhall make the fale effedual '. So, if A. be ordered by B. to fell the efFeds of the inteftate, and B. afterwards take out adminiftration ; A. to an adtion brought againft him by a creditor may plead plene adrniniftravit^ and fhall be discharged i-Cro.Car. 88. on this evidence''. An adminiftration, aifo, com- mitted to an executor de fon tort, and although committed to him pendente lite, fliall warrant his retainer of his own debt, on the fame principle of neceffity, on which fuch right of executors is in general founded, namely, to avoid the inconve- nience and abfurdity of a party's inftituting a fuit *1?"^'" ^^' affainft himfelf '. So, where A., entitled to admi- Com. Dig. niftration was oppofed in the ecclefiaflical court, Admor. (- • 3- a Ventr. 180. and, -pendente lite, being fued as executor m the ^^" ^'^' court of king's bench, pleaded a retainer for a debt due to himfelf, to which the plaintiff replied, that the defendant was executor de fon tort : the de- fendant Ch. VI. OF AN EXECUTOR DE SON TORT. 280 fendant rejoined, that letters of adminiftration had m 3 Bac. Abr. been granted to him puis darrein continuance, on ^^^^^ in not. 11 11 1 J • J • ^ ^X.v?i. 1 1 06. demurrer, the plea was allowed, and judgment given Andr. 37,8.8.0. for the defendant-. But if A. difpofe of an in- ^slTc^dfe'd teflatc's goods to B. for the payment of the fune- L-ofNi. Pr. ral, and afterwards take adminiftration, it has been ^^ held, he (hall not have an adion of trover againft Juft. Holt. c.j. B. for the goods ". • '^'^,„ Vul. Carth. ^^2 CHAP, ( 290 ) CHAP. VII. OF DIsrRIBUTJOKL SECT. I. Of diflrihuiion under the ftaiute — aiid herein of advancement, AM now to difcufs the power and duty of aa adniiniftritor. His office, fo far as it concerns the collecling of the effects, the making of an in- ventory, and the payment of debts, is altogether the fame as that of an executor. But as there is no will to direcl: tiie fubfequent difpofition of the property, at this point they feparate, and muft pur-i fuc different courfea. After tlie ordinary was divefled of the power of adnjiniflering an inteftate's effects, and compelled, in Siipr. 54. ft ti^e manner abovementioned % to delegate fuch autho- rity to the relations of the deceafed, the fpiritual court attempted to enforce a ciffribution, and took bonds of the adminiftrator for that purpofe ; but fuch bonds were prohibited in the temporal courts, and declared to be void in point of law, on the ground, that, by the grant of adminiilration, the b'aBl. Com. ecclefiaftical suthority was executed, and ought to J^J-^LeTl'^s! inttrpofe no farther ^ Thus the grantee was en- Cavt. 125. 2 titled ftq. Ch.VII. of distribution, 2QI titled not only to adminider, but alfo exclufively ^ ^ ^ ^^.^^^^_ to enjoy the refidue of the inteftate's effecls '. For 44B. the purpofe therefore of aiding the imperfect jiirlf- diftlon of the ordinary, and of preventing any fmgle hand from fweeping away the whole finplus ^ the ^g'^^K^'Jn"; flat. 22 & 27 Car. 2. c. 10. commonly called the 496 4 Bum •J J:.ccl. Li. 34-i> ftatute of diftributions % was enaded. That (tatute 343- after empowering the ordinary on the granting of = Made per- ' adrainlftraticai, to take a bond of the adminifirator, ^ja^c! z?c. 17. with two or more furetles conditioned, as I have al- n-?;Il'^''J^""^ ready flated, farther authorifes him to proceed, and " • call fachadminiilrator to account touching the goods of the inteftate ; and, on hearing, and on due con- fideration thereof, to make equal, and juft diftrlbu- tion of what remains clear after all debts, funeral, and juft expences of every fort firft allowed, and deducted, among the wife and children, or chil- dren's ghlldren, if any fuch be, or otherwife to the next of kindred to the deceafed, in equal degree, or legally reprefenting their ftocks, pro fuo cuique jure, according to the laws in fuch cafes, and the rules, and limitation thereafter fet down ; and the fame diftributions to deoree and fettle, and to com- pel fuch adminiftrator to obferve and pay the fame by the due courfe of the ecclefiaftical laws. The ftatute then proceeds to prefcribe the diftribution of fuch furplufage in manner following; that is to fay, one third part thereof to the wife of the Inteftate, and all the refidue. by equal portions among his chil- dren, and fuch perfons as legally reprefent fuch chil- dren, in cafe any of them be then dead, other than fuch chi,ld or children not being heir at laWj as fhall U 3 have 29? OF DISTRIBUTION. Book III. have any eftate by the fettlement of the inteflate, or (hall be advanced by him in his hfc-time by por- tion equal to the Ihare, which ^lall by fuch diibi- bution be allotted to the other chikiren to whom iuch diflribution is to be made"; and in cafe any child, other than the heir at law, who fhall have any eftate "by fettlement from the intcHate, or fliall be advanced by him in his life- time by portion, not equal to the Ihare which will be due to the other children by the diilribution, then fo much of the furplufage fliall be diilributed to fuch child as fliall have any land by fettlement from the inteftate, or was advanced in the life-time of the inteilate, as fliall make the eltate of ail the children to be equal as near as can be eftimated ; but the heir at law, notwithftanding any land that he fball have by de- fcent or othervvife from the inteflate, is to have an equal pai:i; in the diflribution with the reft of the children, without any confideration of the value of fuch land, It then dire£ls, that in cafe there be no children, nor any legal reprefentatives of them, one moiety of the edate fliall be allotted to the wife of the intef- tate, and the refidue of the fame fliall be diilributed equally am.ong every of his next of kindred who are in equal degree, and thofe who legally reprer fent them. It alfo provides, that no reprefentations fliall be admitted among collaterals after brothers', and fiflers' children ; And in cafe there be no wife, theii. I^hat Ch.vil of distribution. that all the eflate fliall be diOributed equally among the children; and, iii cafe there be no child, then among the next of kindred to the inteflate in equal degree, and their legal reprefentatives as aforefaid, and in no other manner. And it farther dlre6ls, for the benefit of credi- tors, that no fuch diftribution of the goods of an inteflate flial! be made, till after the expiration of one year from his death ; and that every one to whom any diftribution and fliare fliall be allotted, fhall give bond with fufEcient fureties, in the fpiri- tual court, that if any debt truly owing by the in- teflate, fliall be afterwards fued for and recovered, or othervv^ife duly made to appear, that then, and in every fuch cafe, he fliall refund, and pay back to the adminiflrator, his rateable part of that debt, and of the cofls of fuit, and charges of the admini- flrator by reafon of fuch debt, out of the \r,in and fhare fo allotted to him, thereby to enable the ad- miniflrator to pay and fatisfy the debt fo difcovered after the didribution made. The flatute alfo contains a provifo, that In all cafes where the ordinary hath ufed heretofore to grant adminiflration cm?i tcftamento annexo^ he fliall continue fo to do ; and the will of the- de- ceafed in fuch teflamenc exprefTed, fliall be per- formed, and obferved in fuch manner as before the pafTmg of the a6l. U 4 "' It 293 ^,^. OF DISTRIBUTION. Boot III. 294. It aifo exprefsly excepts, and referves the cuftoms of the city of London, of the province ot York, and of other places having peculiar cuftoms of dif- tributing an inteflate's ef/ecls. Doubts having arifen, whether the hufband's right to adniiniftration to his wife was not fuperfeded by force of this llatute, and whether he was not there- by bound to diftribute her pevfonal eflate among Vid. fupr. 58. her next of kin ; by the ftat. 29 Car. 2. c. ^yf. 25. it is provided, that the above aft fhall not extend to cflates of feme coverts, who die inteflate, but that the hufband may demand, and have adminidration of their rights, credits, and other perfonal eilates, and recover and enjoy the fame as before. On the condru^tion of the ftatnite of diftribu- tions, a variety of poims have been refolved. After the allotment of one third to the widow, the llatute, as we have feen, diredts a diftribution of the refidue by equ?.l portions among the intef- tate's children, and fuch perfons as legally repre- fent fuch children, in cafe any of them be dead, that is their lineal defcendants to the remoteft degree, To attain a clearer apprehenfion of the fubje6V, three forts of cafes may be fuppofed : Firfl, where none of the inteflate's children are dead. Second- ly, where the inteflate's children are all dead, all of them having left children. Thirdly, where fome of the inteflate's children are living, and fome deads Ck. vh. of distribution. ' ^ ^ dead, and fach, as are dead, have each of them left children. On the firfl hypothefis, that is to fay, where none of the inteflate's children are dead j it is fuf- ficiently obvious, that after the wife has had her third allotted to her, the remaining two thirds (hail, purfuant to the Mature., be .jually divided among all the children of the inteitate, as in this cafe f ^Bac. Abr, they all claim in their own right. A brother, or I^m^'^^'''^^' lifter of the half blood, fhall be equally entitled to ^ ^""es 93, a fhare with one of the. whole blo(jd, inafmuch as 2 Lev. ij^. ' they are both equallv near of kin to the inteftate '. caT'f'*'^'' Nor iliall their being pofthumous in either cafe iVem. 437. make any difference*. If the inteftate leave only Carth.'5'i!*' one child, fuch cafe is not to be confidered as omit- « Burnet v. ted by the ftatute ; therefore, in cafe he alfo leave ^^r* ^t7^^* _ •' ^ ' ' _ 1 56. 4 Burn a wife, flie ihall have only a third part, and the Ecci. l. 344. other two thirds fhall go to fach child ''. So, where lf\vms^^^L there is only one to claim under the ftatute, and h 3 b^c. Abr. therefore, literally anu ftndlly fpeakinq;, there can If' ^^^^^- p- be no diftribution, yet fuch individual fhall be en- a'9- pi. 3. titled to the property '. » 4 Burn Ecd. L. 343. 3 P. Wms. 49, In regard to the fecond fuppofition, if A. have ^^^^ (^^ three children, B. C. and D., and they all die, B. leaving, for inftance, two children, C. three, and D. four, and A. afterwards die inteftate ; in that cafe all his grand-children fliall have an equal ihare : for as his children are all dead, their chil- dren fhall take as next of kin. Such alfo v/ould be the c^fe with refped to the great-grandchildren 2q5 of distribution. Book III. of the Inteflate, if both his children, and grand- '7 1 i'Eq!cA. children had all died before him ". Xbr. 249. p]. 7. l^rec.Chan. <;4. 1P.Wms.i95. In all the above inftances, the parties are faid to a Vef. 213/"' ^2i^^c P^^' capiUiy or, in other words, equal fliares in T Atk. 454- their own rieht \ Bunb. 159. " 2 Bl. Com. 5 17. 12BI. Com. Thirdly, in the event of fome of the inteftate's '^^^' children being living, and fome dead, and fuch as are dead, having each left children ; the grand- children take per Jiirpes^ that is to fay, not in their J" 2 Bl. Com. own right, but by reprefentation "". Thus, for ex- *'^' ample, if A. have three fons, B. C. and D., and B. die, leaving four children, and C. die, leaving two : on A.'s dying intdfate, one third fliall be allotted to D., one third to B.'s four children, and the remaining third to C.'s two children; for thefe grand- children are entitled as reprefenting their ■» 3 B3C. Abr. refpeclive parents ". 75. I Eq. Ca. Abr. 349. rR^fSm^cit •After direfting the refidue to be divided among the children, or their reprefentatives, as above ftated, the ftatute provides, that no child of the in- teflate, except his heir at law, on whom he fettled in his life-time any eftate in lands, or pecuniary portion equal to the diflributive (hares of the other children, (liall participate with them of the furplus; but if the eftate, fo given him by way of advance- ment, be not equivalent to their fhares, then that fuch part of the furplus as will make it fo, fhall be allotted to him. The a Bl. Cora. 5 1 7. Ch. VII. OF ADVANCEMENT. '2 07 The fia^ute docs not divtfft the child of any pro- perty w' ' been thu^ given to him, however unequal i. ii)Hy have been'; or how much foever it mav p:^:ceed the r.-^^.Jue : he may, if he pleafes, keep it all : if he be not contented, but would have more, then he naift bring what he has before re- ceived, as the law expreifer. it, into hotch pot, that is, into the general mafs of the property to be fo divided. This is the clear intention of the a6l, grounded on that principle of equahty ", to v/hich a court of " aP.Wms. . . . ;. , 44,> 449- equity is ever iiiciiaea. 4 Bum £ cl. L. 344- 1 Bl. Com. Theref ;re, before a younger child has any claim 190- s'7« to a ibare of the diilribution, he niuft firfl bring his advancement into hotchpot. "What fhall conilitULe fuch advancement, is now to be difcuffed. If a father purchafe for the fon an advovvfon, or any other ccckfiaftical benefice, or, if he buy him any office, civil, or military, thefe are held to be fuch advancements, either partial, or complete, ac- cording to the comparative value of the eftate to be diftributed °. And akhoun;h the office be only at °3^-Wms. will, as a gentleman penlioner s place, or a com- Scd. via, miffion in the army, it is regarded in the fame \'^^^^/ ^ '"' 317. not (o;. A provifion 2^8 «• i P.Wms. 440. 444- ft Vcni. 638- s II Yin. Abr. 19a. 2 P.Wms. 441- OF ADVANCEMENT. Book III. t a P. Wms. 441. " a P. Wms. 440. 44-5- ^ a p. Wms. 442. Swinb. p. 3- f- 4- s 1 P. Wms. 44V y iP. Wms. 445- « 7. ?. Wms. 442. 446. 449' * a P.Wms. 435- A provilioii made for a child, by a fettlemcnt either vohintary, or for a good confideration, as thiit of marriage, is an advancement pro tanto \ Nor does the ftatute extend only to land itfelf ', when ff^ttled on a younger child by the father, but alfo to a charge on the land, created by him for the benefit of fuch child, therefore, if a father fettle a ?ent out of his lands on a younger child, this alfo is fuch an advancement as is intended by the fta- tute *. Nor is it neceflary that the pro\irion fhould take place in the father's life-time ". If, by deed, he fettle an annuity, to commence after his death, on fuch child, It is of the fame defcfiprion ''. So, a reverfion fettled on a child, as it is capable of be- ing valued, is of the fame nature \ A portion fecured to a child, although /« fuiiiro^ is alfo an advancement ^ And wei-e it only contingent, yet when the contingency has happened, it Ihall be thus confidered ^. A portion for a daughter to be laifed out of lands, on her attaining the age of eighteen, or the day of her marriage, was ^accordingly held to be an advancement to her when fhe married, although fhe were under that age, and unmarried, at the time of the inteftate's death % A portion, alfo, while contingent, is capable of jckyil, M.R. ^ valuation, and may, ^t feems, be brought into arguendo. 2 P. hotchpot " ; or the court may order that, in cafe the Ctt.Vir. OF ADVANCEMENT. 2QQ the contingency fliould happen, the portion fhall be fo diftrlbuted as to make the reft of the chil- dren equal with the child on whom it was fettled ^. ^ Per Lord But the contingency niuft be fo limited as necef- c7^i"ueiu!o farily to arife within a reafonable time, as in the J-P-Wms. ^46. above cafe, where the portion was fccured for the daughter, on her attaining the age of eighteen, or on her marriage ^ A child advanced in part fhall 440. 4^5. !^^5. bring in his advancement only among the other children j for no benefit Ihall accrue from it to the widow ^ If a child, who has recdived any ad- yy^prec.ciuiu vancement from his father, fiiall die in his father's. **'*• ^^+' life-time, leaving children, fuch children iliall not be admitted to their father's diflributivc Jliare, un- lefs they bring in his advancement, fmce, as his reprefentatives, they can have no beuter claim, than he would have had if living "". '^J'^^ ' ' ''"*' By this ftatute, ahhough the heir at law fliall' not abate in refped of the land, which came to him by defcent, or other wife, from the inteflate ; yet, if he hath had an advancement from his fa- ther in his life-time, out of the perfonal eftate, he fhall abate for it in the fame manner as the other children ^. And, were it merely the ufe of furni- ^ Cam Dig. ture for his life, it liiall be regarded as an advance- 4 Burn Ecd. ment pro ita?ifo^. So, where A. on hjs marriage, pitze'^is covenanted in cafe of a fecond marriage, to pay g ^-,^^^^1 £,j his elded fon, by his firfl wife, five hundred Admon.H. pounds; (he died, leaving a fon, and other ghil- ' * '* dren, and A. after a fecond marriage, died intef- tate J it was decreed, that his heir fliould bring in the ^Q^ OF ADVANCEMENT. Book HI. the money, although he were hi the nature of a fasVern.63?. purchafer, under a marriage fettlement \ Co-heireiTcs iliall aifo, it feems, brmg in fuch advancement, ^lot being hmd, as they may have refpeOively received from theii^ father, before they Hiall be entitled to their GifLributive fliares, agree-* ably to the principle of the ad, and to the object of a jufl and impartial father to promote an equahtv } 4 Burn Eccl. , . , ., , . L. ■:,44. 7. P. among his children. ' Wins. 44O. 443- Such is the nature of the advancement which will exclude a child from any part of the refidue* IVlany benefits, however, may be conferred upon him by his father, which have been held not to be of this defcription. Small, inconfiuerable funis of money given to a child, by the father, or mere trivial prefents he may make to the child, as of a gold watch, or wedding k 3 p. Win-, clothes ihall not be deemed an advancement^, nor Vl'eT 16 ^'^^^ money expended by the father for his mainte- ^A^k ^^t i^«iJ^ce, nor given to bind him an apprentice, nor laid out in his education at fchool, at the univerfity, or Swinb. i>!i. ' on his travels '. Nor fliall what a child receives out *"-J^^v^ of the mct/jer^s eflate, be fo resiarded "". Nor, fhall aP.Wras.449. ,^ . . o ' „ o x-r a provifion, which a father may make for his child ^ z p. Wins. r ' J 356. by will, (for a cafe may occur, where a teftator, may- die inteilate, as to part of his perfonal eflate,) n aP. Wms. be confidered in that light. Nor land given by the 44C-44V. father's v.'ill to a younger child". • I * Such 301 " a p. Wms. 440. Ch. VII. OF ADVANCEMENT. Such a provifion as (hall be conflrued an advance- ment, muft refult from a complete ad of the Intcf- tate in his life time, " by which he divefled himfelf of all property in the fubjed, though as we have jufl: feen' it may not take efl'ed in pofieiTion till after his " Vid. fupr. death. Still lefsfliall property given or bequeathed ^^ * to the child by any other perfon be fo denominated^ P3Bac.Ai)f.7S. and lead of all Ihall a fortune of his own acquifi- h iS. tion^. qSu'inb. p.3. f. 18. In refpeft to borough englifli lands, which def- cend to the youngefl fon, it has been held that he fhould allow for them, on the ground, that the ifatute intended merely to provide for the heir of the family, that is, the heir by the common law, and not one who is heir only by cuflom in fome particular places ', But that decifion has je^^^vU^'vL r', been over-ruled, and it is now fettled, that fuch sua. 935. youngefl: fon fliall have an equal lliare of the di(i tribution with the other children without regard to this fpecies of eftate : for although the exception in the ftatute extend only to the eldefl fon, yet no law exiits to oblige the heir in borough eng- lifn to bring in his lands. The ftatute contains no fuch requifition. It fpeaks merely of fuch eflate as a child hath by fettlcment, or by advancement of the inteftate in his lifetime =. IF,^^ f-?!"*^^ Temp. Talb. Thus muft the fuiplus be diflributed in cafe the Ecci.L. 345*' inteft:are has left a v/Ife and children, or reprefenta- tives of children. The 302 OF DTSTRIISUTION. Book lit The flatute then provides, that if there be no children, or legal reprefentatives of them, in exifl- encc, a moiety Ihail go to the widow, and a moiety to tlie next of kindred, in equal degree, and their reprefentatives ; but no reprefentation among col- laterals fnall be admiited farther than brothers and fillers children. If ihere be no widows, the whols Ihall go to the children. If there be neither widow nor children, then the whole fhall be diftributed among the next of kin, in et|ual degree, and their reprefentatives, as abovementionedi The next of kin referred to by the ftatute are *' *-^2vVf."^i ^° ^^ traced by the fame rules of confanguinity as thofe who are entitled to letters of adminiftra- , ^jj ^ ^^ tion '^. Thofe rules have been already difcui^ed \ The mother, therefore, as well as the father* fucceeded to all the perfonal effefts of the phildren^ who died inteflate, without wife or ifliie> in cx- clufionofthe other fons and daughtei-s, the bro- thers and fillers of the deceafed j and fuch is the saBl. Com. law ftlll with relpefl to the father*; but by the 5V5>5'6. flat. I Jac. 2. c. 17./ 7, ifi after the death of the father, and in the life-time of the mother, any of the children die inteltatCj without wife or chil- ,. drer^ every brother and fiiler,. and their reprefen- tatives,. fhall have an equal fnare with her. The « 1 Salk. 151. principle o? which Drovifion is this, that otherwife Wms.A8,49. the mother might marry, and transfer all to ano- 68+ Com ther hufband '. Rep. 96. pi. 95- On 303 P. Wms, Cb. Vlt. of DISTRIBUTION. On this lad mentioned ftatute it has been held, that if A. die inteftate, and without ifliie, leaving a wife, and feveral brothers and fifters, and his mo- ther living, the mother fhall have no mere than an equal fhare of a moiety of che eliate vv'ith the bro- thers and fifters. And, although there aiould be no brother, or fifter, yet if there be children of a deceafed brother or fifter, they {hail partake with their grandmother to the fame exteJit as their pa- rent would have been entitled ". 344. i Sira.' 7:0- Gilb. Rep. 189. To reuurn now to the ftatute of diftribiitions. lAtk. 455* That claufe of it, which expreiTes that there fnall be no reprefentations among collaterals beyond bro- thers and fifters children, muft be conftrued to mean brothers and fifters of the inteftate, and not as admitting reprefcntation, when the diftribution happens to fall among brothers and fifters, who • are remotely related to the inteftate j for the intef- tate is the fubjeft of the aft ; it is his eftate, his wife, his children, and for the fame reafon, his bro- thers* and fifters' children, for he is equally corre- lative to all ^. Therefore it has been held, that if lfi,ow.'*u.' the brother of an inteftate hath a grandfon, and a ,^7^^"- '^^' fifter has a fon or daughter, the grandfon fhall not Ld.Rayn1.57r, have diftribution with the fon or daughter of the pK^6. i p.^^* fifter y. So, it has been decreed, that if an inteftate Wn-,o.25.59s. leave an uncle, and a deceafed aunt's fon, the latter '' ^ ^^ik. 250. /I 11 1 i-n M • n I Ld. Raym. Ihali have no diitributive ihare *. S7i. z 1 p. Wms. The words of the ftatute muft be taken together, ■•'''^* The exprefiion ;pro Juq cuique jurcj will let in any X advantage 304 OF DISTRTBtJTION. Book III. advantage of equality or preference, which a per- fon was entitled to by our lav/ before the flatute. Therefore, a grandfather, although he be in an equal degree of confangulnity with the brother of the deceafed, fliall have no fliare with him in the diftribution : for by the common law, there was ■ but one degree between brother and brother, and it would be unnatural to carry the perfonal eftate up to the grandfather, who mufl be prefumed to have been long before provided for, and to be go- » Ainbl. 191. • . r I'f- a Vid.r11pr.63. mgoutofliie'. So, a grandfather fliall exclude an uncle ; and Independently of the provifions of the ftatute, by the common law the former was entitled to a pre- ference, as being of the right line, whereas the lat- ter is only of the collateral line ; in other words, the b SMk *8 grandfather is the root of the kindred, and the i5i.ui.Raym. uncle is only a branch ^ .6?4.Com.llcp. 2d Edit. 96. I'fiAod'ciK. ^^^ ^^^^ ^^ courfe, is the fame In refpecl t^ 2 Vcf. 215. grandmothers, and aunts ". t P.Wms. 41. Admmi. R * Where the next of kin are a grandfather by the 1Salk.38.251. father's fide, and a grandmother by the mother's, they fliall take in equal moieties, as being in equaj degree: for in refped of fuch claims, as hath for- ^Supr. 64. merly been obferved ''j dignity of blood makes no difference ". Uncles and nephews, aunts and nieces, are in equal degree. And where the inteilate lett two aunts. ck.vii. of distribution. ' 205 aunts, and a nephew, and a niece, children of a deceafed brother, Lord Hardwicke C. ordered the furpkis to be divided into four parts equally among them, holding that as they were all in equal de- gree, the children were to take in their own right, and not by reprefentation, but that if their- father had been living, he would have been entitled to the ^ ' ^^^- '^^^' whole ''. The grand-daughter of a fider, and the daugh- ter of an aunt of the inteftate, are alfo in equal degree, and entitled to equal diftribution ^ ^ Co"". Dig. o ' '■ Admon.(H.) iVel". 333. Although the ftatute direct that no diflrlbutloii fhall be made till a year has elapfed frdm the death of the inteftate, yet. If a perfon entitled to a dif- tributlve (hare fliall die within the year, fuch inte- refl: (hall be conhdered as vefted in him, and fliall go to his perfonal reprefentative ; for this provifo makes no fufpenfion or condition precedent to the intereft of the parties, but was inferted merely with a view to creditors. "tile ftatiite, alfo, is in the nature of a will, framed by the legiflature for all fuch perfons as die without having made one for themfelves ; and by confequence the parties entitled in diftrlbutioD. refemble a refiduary legatee ; and it has been always held, that if fuch legatee die before the amount Cf the furplus is afcertained, flill his reprefentative X 3 ih.2.11 3o6 OF DISTRIBUTION. Book III. fliall have the v/hole rcfidue, and not the reprefen- Ts- Carth. 51, tative of the fir ft teftator ^ 5a. Comb. 14. xtz- 2 Show. 285. Skin. 211. AfEnity, or relationfhip by marriagej except in jiVin.Abr!92. the inftaiice of the "wife of the inteftate, gives no Vid.iupr.a68. jjj.jg ^^ ^ ^^^.^ q£ j^jg property : as, if A. have a fon and daughter, B. and C, and they both die, the former leaving a vvife, and the latter a huf- band ; on A.*s dying afterwards inteftate, fuch huft)and and wife have neither of them any claim ^ on his eftate. • If a baftard, or any other perfcn having no kin- ■ dred, die inteftate, without wife or child, his ef- £Vid. upr.72. £g£^g^ j^g ^g j^j^yg feen^, belong to the king, who^ with the exception of a fmall part, ufualiy grants them by letters patent, or otherwife ; and then fuch grantee feems of courfe entitled to the admi- niftration, and, confequently, to the fole enjoy- i* 2 El. Com. jj^gj^j Q^ jj-jg property \ 50;. Dong, r r J The perfonal property of an inteftate wherever fituated, muft be diftributed according to -he law of the country where his domicil was, and fuch is prima facie the place of his refidence, but that may HVefjun.TQ?. i^e rebutted or fupported by circumltances ' ; for- See alio Sir , 1. i • c i ■ , 1 i 1 chae. Don- although, the locality or the party s abode at the tllen-Std. ^'""'^ ^^ ^^2 death determine the rule of diftribu- tion, yet it muft be a ftationary, not an occafional, J^iWoodd^f refidence, in order that the municipal inftitutions 385.Aa1bi.a5. may attach on the property'-. If, therefore, an *'^'"^- Euglifhmaft Ch. VIL BY THE CUSTOM OF LONDON. ^q- Englifhman be fettled and die in this country, and adminifl: ration be taken out to him here, debts due to him, or other of his perfonal effeds in Scot- landy or abroad, flialLbe diflributed according to the law of England ' : But, if an alien, refident * ^ ''^' abroad, die inteftate, his whole property here is diftributable according to the laws of the country where he fo refides, otherwife no foreigner could deal in our funds but at the peril of his effeds going according to our laws, and not to thofe of his ^ i Wooddcf. „ 385.Ambl.z7. own country™. SECT. II. Of dijlribitiion by the cnjloni of London. I PROCEED in the lad place to confider the cuftoms of the city of London, on this fubject, and alfo of the province of York, and the prin- cipality of Wales ; which having peculiar cufloms of diftributing intefliate's effects, are exprefsly excepted from the operation of the ftatute. Although the reftraints in regard to the power of making wills, which fubfifted in thofe refpeftive diftrids, are now removed by different flatutes ; namely, the 4 Sc $ PF.&' M. c. 2. explained by the 2 & 3 Ann* c. 5. for the province of York ; the '] h'^W, I, c, 38. for Wales J and the 11 G. 1. S3 c. 18. 3o8 OF DISTRIBUTION Book III. c. 18. forL6ndon-, by which perfons refiding in thofe feveral places, and liable to thofe cuftoms, are empowered to di(pofe of all their perfonal eftates by will, and the claims of the widows, children, and other relations to the contrary, are totally barred ; yet thofe cuftoms remain in full force with refpeft to fuch property ot an inteftate '. ' ? B!. Com. ^|>j-,^.ij. nature and incidents, therefore, now demand 493- -17, 5i'^- L.ofTfft. 194. our attention. * ^^- ^^^^"^ In the city of London \ and the province of 132;;. 4 Burn J " ^ ted. L. 387. York % as well as in the kingdom of Scotland '', and c 4 Burn Eccl. therefore, probably alfo in WaUs ^ ; (refpecling the " ■'''^ ■ latter of which, little information is to be collected, d 4 Burn Eccl. ^^^^^^ ^^^^^ ^^^ ^^^^^^ ^r ^y^ ^^^ ^^^ ^^^q.^ ^£ ^^^ = 4 Burn Eccl. intcftate, after payment of his debts, are in general L. 4*5* 424- divided according to the ancient dodlrine of the \loffxT97. P'^^^ rationabilis^ to which I have before aU ssiipr. 5j. iucled^. And, firfl, as to the cuftom of London, if a freeman of the city die, leaving a widow and children, his perfon-al property, after dedudling her apparel, and the furniture of her bed-chamber, is divided into three equal parts, one of which belongs to the widow, another to the children, and . „ .,„ the third to the adminiftrator in that charader. If 1 I p. Wras. 34i.aSaik. only a widov/, or only children, they mall re- t%'. '2 Van*, ipeftively, in either cafe, take one moiety, .and the ^i2.L.otM. adminiftrator the other'. If neither widow nor 3 All:. 527. childj the adminiftrator lliall have the whole ^ ¥ ^ Show. 175. The Ch. VII. BY THE CUSTOM OF LONDON. 309 The portion of the adminiftrator is ftyled in law the dead man's part. It is fo called, becaufe for- merly, as we have Teen \ the ordinary or his grantee ^ Supr. 55. was to dlfpofe of it in mafies for the deceafed's foul. But, after the difufe of this fuperititious praftice, the adminiftrator was wont to apply it to a better purpofe, that is to lay, for his own benefit '", till the "" i^rcem.Ss. . , . . I Vtia. 133. Icgillature thought it was capable of an application ftill belter ; and accordingly, by the flat. 1 Jac. 2. c. 17. declared, that it fliould be fubjed; to the law of diftributions. Hence, if a freeman die worth ejghteen hundred pounds perfonal eitate, leaving a widow and two children, this eftate fliall be divided into < ip-hteen parts ; of which the widow fliall have eight, fix by the cuflom, and two by the ftatute; and each of the children five, three by the cuflom, and two by the flatute : if he leave a widow and one child only, flie fliall flill have eight parts as before ; and the child fliall have ten, fix by the cuflom, and four by the ftatute : if he leave a widow, and no child, the widow fliall have three fourths of the whole, two by the cuflom, and one by the flatute ; and the remainino^ fourth fliall ^o by the flatute to the next " '^^]' ^°!?\ of kin ". 2C9. o Free. Clinn. A poilhumous child fliall come In for his cuf- ^03! i"i%in. * tomary fliare with the other children °. But the ^'^.'"- ^°°- •' . Gab. Eq, Rep. cuflom extends merely to the wife and children of 155. the freeman, and not to his grand-children p. p i p. Wms. 341. I Vern. V TT 397. a Salit. A 4 Hence, 426.L.ofTeft. * 210. 3IO OF DISTRIBUTION' Book III. Hence^, if a freeman die inteftate, leaving a wife but no child, yet, if there hath been a child, and . there be any legal reprefentatives, that is, lineal defcendants of fuch child, they are admitted to his diftributive fhare of the dead man's part under the flatute, though they are entitled to no part of his ihare by the cuitom. In that cafe, therefore, of ' the dead man's part by the flatute, the wife fhall have one third, and the reprefentatives fliall have the other two thirds ; fo, that dividing the v/hole perfonal eflate into fix parts, fhe Ihall have four, and the reprefentatives two. If there be neither wife nor child, nor fuch reprefentative of a child, the whole fhali be fubjedt ♦ Ia of Teft. to the (tatute of diflribuiions °. 192. 221} a22' I Vein, aoo* The children of a freeman are entitled to the ^4ic. riage^ Nor in cafe lands held by a mortgage in UBurnEccl. fee defcend to him before redemption, Hiail he be .a Vem. 375. entitled to a filial portion ; but on redemption of the mortgage, and payment of the money to the adminJRrator, it feems he fliail be entitJed to fuch portion, becaufc then he has nothing by inherit- ance, iiorj in facl, has ha.i anv preferment s. ? 4 Bum Eccl. L 410. The principles epLabliihed in regard to advance- ment on the conilruction of the flatute of diftriba- tions apply in general to fuch as is purfuant to the cuitom of this diftrict''; but as here land as J'Vid.xV.^.:- well as money conflirutes an advancement, the heir at law under the cuftom is excluded by his inherit- an.'C of land, either in fee or in tail ' ; whereas fuch inheritance is no bar by the (latute; but, as well under the cudom, as under the flatute, voun'ger children, in rcfpect to advancement, are on the fame foodng. It is effendal in order to the cuf- tom of YorIf..'s attaching, that the inteftate Ihould be refident at the time of his deiith within theprg- Y Yince Vcrn. '320 OF DISTRIBUTION. Book IIL vince ; but for that purpofe it is immaterial where his eftate is fituated. In cafe a freeman of London fliall die within the province, the cuftom of the city for the diflribution of his effeds fhall prevail, and fhall controul the cuftom of the province of York. Therefore in that cafe the heir fliall come in for a fhare of the perfonal eflate : for the cuftom of the province is only local, and circumfcribed to a certain diftrict ; Y f "''" '^^^^' but that of London, as above ftated, follows the -Vern. 47.22. perfon, although ever fo remote from the city*. Supr. 310. With thefe diftinftions the cuftoms of London and thofe of York in the main agree, and appear 9:9. I Vcrn. to be fubftantially the fame ^ i3|. 200.305. iCh.Rep.ic^ Thus, If an inteftate in the province of York die L.ofTett.aji, feifed of an eftate in fee fimple, leaving a widov^^ and three fons. The widow in that cafe fliall have one- third of the whole perfonal eftate under the cuftom, the other third fliall be divided equally between the two younger fons, and of the remaining third the widovv^ ftiall take one-third under the ftatute, and the yOther two-thirds fhall be divided equally among the three fons ; for the heir is barred merely of his or- phanage part, but not of his Ihare by the ftatute. '4r>mnEcd, In refpeft to Wales', we may learn in general F!x''97Tin not. ^^^^ the ftat. 7 and 8 W. ^: c, 38. above re- ibid.Suppl.72. ferred to", that the doctrine of the pars rat'wna- B'i Supr. 307. /.///j extends to inteftate*s efttfts within that prin- cipality. But the books contain no farther infor- mation on the fubjecl;. " C H A P, ( 321 ) CHAP. viir. CF THE POtVERS yIND DUTIES OF LIMITED JDMINISTRATORS. OF JOINT ADMINI- STRATORS. THERE are certain powers and duties which belong in common to all fpecial and limited ad- miniftrators. Whether the adminiftration be com- Initted durante minoritate, durante ahfentid^ or pen- dente lite, or whether fuch fpecial and limited ad- minlftration be granted with or without a will an- nexed, or in a general or reftricliive form only, as ad ufum^ et commodum infantls, they are all in- verted in fome refpefts with the fame authoyty ^ They may perform all fuch aftt; as cannot be delayed without prejudice or danger to the eftate. They may fell bona peritura, cattle which are fattened, grain, fruit, or any other fubftance, which may be the worfe for keeping ''. They may pay debts which were due from the deceafed at the time of his death *", or for the payment of them they may dif- pofe of effeds not perifiiable''- They m.ay alfo in fuch refpective charaders receive debts due to the deceafed % or may maintain actions for the reco- very of the fame ' ; for, in all thefe and the like inftances, the urgency of the cafe requires tf em im- mediately to act. They have alfo, it feems, the privilege of retaining for debts owing to them- feives •. Y % If a a p. WmSo ''3Bac.Abr.13, 1 1 Vin. Abr. 102, 103- I Roll. Abr. 910 3 Leon. 278. a Anierf. )3a. pi. 78. Cro. Eliz. 718. 5 Co. 29. Godb. 104. ^ V om. Di^. Admon. F. Vid. Hob 250; 5 Co. 29. b. J 5 ^ o. 29. b. a Anderi". 131. pi. 78. « Com. Dig. Admon. F. Vid, 3 Leon, 105'- 576 Wms. I Roll. Abr. 8SS z Brownl. 83, I Salic. 4.Z. E Com. Dig. Admon. F- Semb. Raym. 4S3. OF THE ACTS Book IIL •J If admlnlftration be granted generally during infancy, the grantee has authority to make leafes of any term vefted in the infant executor, which - fhall be good, till he come of age, and, as it has 1 6 Co. 67. b. been alfo held, till he enter '^ Such adminiftrator 3fF. Ex. aij. j^^^ ^j^^^ j^ feems, a right, in cafe the adminiftra- tion were granted with the will annexed, to alfent ■ C^'^^'h^^' to 3. legacy '. But if the adminiftration were com* rnltted with fpecial words of reftraint in the forni I have juft mentioned, fuch adminiltrator is inca- ■^6 Co. 67. b. pable of making leafes'', or of aflenting to a le- JlT. Ex. 215. i '^- ^ ' • n ^rr ^ eracv^ Nor fhall the power of an admmntrator, Cit. Ex.zi5^ ft ; r during iniancy, although the grant were general, extend to the prejudice of the infant. Therefore fuch adminiftrator has no authoricy to transfer the property by fale, except in cafes of neceffity ; -^"^ nor to fell leafes even for the payment of debts, n Anderf ^^ there be other property which he may dif-' f32. pi. 78. pofe of to more advantage ^ ; nor to affent to a le-' '5Co.29.b. gacy, unlefs there be affets for. its payment", nor 5 1 Roll Abr. to releafe a debt without actually receiving it ° : ?io, 911. for although, as we may remember, if A. an infant, be appointed executor, and B. be nomi- nated to act in that charafter during A.'s mi^ nority, B. feems to be poifelTed of the fame pVid.fupr. powers as an abfolute executor ^ ; yet a diftinc- tion has been taken between him and an admi- niftrator durante minor itate. To B. the property in the effeds was confided by the owner him- felf, though but for a limited time and in a fpecial manner, whereas fuch adminiftrator is appointed by the grdiuary in ccnicciuence of the legal . difability iZQ. Ch.VIIL - OF LIMITED ADMINISTRATORS. ^^l difablllty of the executor, who by the will Is con- flituted to aa immediately'^. Such acts, there- •'Off.Ex.215, ,,-, ^ ' 'n ~ 216. 11 Vin. fore, as are performed by fuch admmiltrator, to Abr. 103. the injury of the infant, fhall be altogether inef- fe6tual. By the flat. 38 Geo. 3. c. 87. / 7. an admini- ftrator durante abfentid has the fame powers veiled in him as an admlniflrator during the minority of the next of kin. An admlniftrator pendente lite, whether the fult relates to a will, or the right of adminiftration, feems to be on the fame footing with an admini- llrator during infancy, to -whom the grant is made in the fpecial and limited manner above men- tioned % If an action be brought againfl a fpecial admini- ftrator, and, pending the adion, the adminiftra- tion determine, it has been held, he ought to re- tain ailets to fatisfy the debt, which is attached on him by the action ', but that is on the fuppofi- tion the a£lion does not in that event abate, whereas it feems that fuch would be the confe- quence^ If judgment be obtained againft fuch adminiftrator, and afterwards the executor come of age, 2ifcire facias will clearly lie againfl the execu- tor on the judgment ", Of co-executors, we have feen, the acls of any one, in refped to the adminiflration of the effects, Y 3 are "■ Vid. 3 Bac. Abr. 56. II Vin. Abr. 106.2P.Wms. 576.&fupr.74. « 3 Bac. Abr. 14. Comb.465. t II Vin. Abr. 97,Moore46z. Goldfb. 136. Lutw. 34Z. " Ld. Raym. 265. Carth. 4-^2. 324 OF JOINT ADMINISTRATORS. Book III. are deemed by the law to be the ads of all, inaf- much as they have a joint and entire authority over the vi'hole property ; but joint adminiftrators are confidered in a different light. Their pov/er arifes not Irom the aci of the deceafed, but from that of the ordinary ; and adminiftration, it has been ^ Siipr. S4. ah'eady ftated % is in the nature of an office, and, if granted to feveral perfons, they muft all join in the execution of it, nor fhall the ad of one only be binding on the reft. Therefore, one of feveral adminiftrators cannot, like one of feveral co-exe- cutors, convey an intereft, or releafe a debt, with- *4BurnEcci. out the Others ^ L.,27i. Lord Bacon'sTrads ^ ^eo. * ' But if one of the adminiftrators die, the right of adminillering will furvive without a new «aVern. 514, _-.„„.« Supr. 84, grant . By the ftat. 38 Geo. 3, c. Sy. /. 4. in cafe of the abfence of an executor for a year after the teftator's death, cut of the jurifdidion of his majefty's courts, and a fuit be inftituted in a court of equity by a creditor, the court in which the fuit fhall be pending, is empowered to appoint perfons to col- led in outftanding debts, or effeds due to the tef- tator's eflate, and to give difcharges for the famCj who are to give fecurity in the ufual manner duly to account. CHAP. ( 3^5 ) C H A P. IX. 02^ ASSETS AS DISTrNGUISHED INTO REAL AND PERSONAL, LP.GAL AND EQUITABLE OF MARSHALLING ASSETS. N treating of debts and legacies I have hitherto fuppofed them to be payable out of the perfonal eftate only, and, indeed, that is the natural fund for their fatisfaftion : but the real property may alfo be applied to the fame purpofe. On the fubjeft of fuch application it is neceflary to confider affets under different denominations. Aflets then are either real or perfonal, legal or equitable'. ^vid. 4Bura ^ ECCI.L.28S. Thofe of which I have been treating are legal and perfonal. I proceed now to advert to fuch as are legal and real. Lands defcended to the heir in fee fimple are for the benefit offpecialty creditors of this defcrip- tion, as is even an advov/fon which is fo de- fcended ''. b 3 Wooddcf. 483-3P-Wms. Thefe aflets are fometimes ftyled aflets by de- fcent, as perfonal aflets are called aflets etiter ?nains, that is, in the hands of the executor % cTermsofthe Law. y 4 Whether 326 i 1 FonW. ad edit. 396. not. b. 3 Atk. 466. 4Tenn Kep. 229. c Supr. 105, J06 f a Fonbl. 2d edit. 114. liot. (r). t a Fonbl, id t'<''it. 114. not. (s\ Hardr. 4S9. I Term. Kep. 766. i< Yid. 2*B1. Com. 378. OF REAL AND PERSONAL ASSETS. Book IIL Whether an eftate pur aider vie, in c^fe it be not «levifed, fliali be real or perfonal aflets, de- pends on there being or not being a fpecial occu- pant. The flatute of frauds enables the proprie- tor of fuch ef}:ate to devife it, and enacls that if no devife be made, it (hall be chargeable in the hands of the heir, if it come to him by reafon of a fpe- cial occupancy, as affets by defcent, as in the cafe of lands in fee fimple. And, if there be no fpe- cial occupant, it Ihall go to the executor, and be ajTets in his hands \ A term in grofs is, as we have feen, perfonal affets*. But, if the term be vefted in a trullee, and attendant on the inheritance, it is real aflets '. So a term in tiuft, attendant on the fee in truft, fliall be real afiets in the hands of the heir^ for the (Latute of frauds having made a truft in fee afiets in the hands of the heir, the term which follows the inheritance, and which is fubjeft to all charges attending the inheritance, muft be fo alfo °. Creditors by fpecialties, which affected the heir, provided he had affets by defcent, had not the lame remedy againft the devifee of their debtor, and were, therefore, liable to be c!efrauded of their fecurities. To obviate this mifchief", the flat. 3 fV. cs? M, c* 14. has enacled, that all devifes of real eftates by tenants in fee funple, or having power to difpofe by will, fliall, as againft fuch creditors, be deemed to be fraudulent and void ; and that they may maintain their anions ^jointly againft Ch. IX. OF LEGAL AND EQUITABLE ASSETS. ^ ^ - again jfl the heir and devifee. But devifes for pay- ment of debts, and For raifing portions for younger children, in purfuance of an agreement before marriatje, are exprefsly excepted bv the ftatute°. ^Vid. a/.tk. . n ' - ' r 292. zVel ^90. And thus, freehold intt^relts deviled for other than iBro.Ch.Rcp. the juft purpofes aforefaid, are become, in favour Rep.^6i'4! of fpecialty creditors, real .aflets at law, without ^°'"-H'^* the affiitance of a court of equity ; in reipecl to which fuch creditors may ele6t to refort in the firii: inftance againft the heir and devifee, without fuing the perfonal reprefentative of their deceafed , , ^ . ^ ^ h 3 Wooddef. debtor ^ 486. It feems, alfo, that an eflate pur auter vie, al- though no fpecial occupant were named, wou\d, in cafe it were devifed, be confidered as real alTets '. ad edit. 396. ' not. b. But copyhold eflates are not aflets in the hands , ^ ' 4. C-O. %%» of the heir '', and, confequently, are not compre- Robinibnv. hended within the provifions of this ftatute. 1?Mm^^l%, not. I. Between legal and equitable aflets the diflinftion is this : legal aflets jire fuch as confliimte the fund for the payment of debts according to their legal priority ; whereas equitable affets are thofe which can be reached only by the aid of a court of equity, and are fubjecl to diilribution on equitable ' ^ ?^*^' '^^*'' principles, according to .which, as equity favours 2- Fonbl. 402. equality, they are to be divided pari paffu among Ecci. Lfsgg'. all the creditors ^ KY''l^'^!r- 416. not. a. By 3^ OF LEGAL AND EQUITABLE ASSETS. Book 111, By the flat. 21 //. 8. c. 5. f. 5. it is enacted, that if lands are devifed to be fold, neither the money produced by the fale, nor the future profits of the land, jfliall be confidered as forming any part of the perfonal efiate of the devifor. But this provifion was formerly coiiftrued to apply merely to devifes of lands to be fold by perfons not executors, or by executors in conjunction with other perfons ; in which cafes it was held, that neither the land,. nor the money was to be regarded as legal aifecs, but merely fubjecl to an equitable appointment, inafmuch as the parties empowered to fell, were not trufled with it, in refpe6t of their k 1 Bac. Abr. n • v ■" ^ j8. Roll. Abr. executorlhip "". 920. Hob. 265. Dyer 151. b. 264. b. 1 Vern. That, in cafe lands were devifed to an executor, 63.xVern.405. , r ,,,,.. 1 • r 1 4BurnEccl.L. to be lold by hmi m that capacity, tor the payment aS- 2gi^'"' of debts and legacies, the money arifmg from the Prec. Chan. f^\Q fhould be legal affets as well as the intermediate OffEx.';4,7s. profits; for that, by the devife, the defcent was broken, and the eftate in the land veiled in the executor, qua executor for the purpofes directed by j3T5ac.Abr.58. the will*.' 3 Roll. Abr. 920. Hargr. pp. Lit. 436. g^j. ^1^^ doarine of equitable affets, in its prin- ciple fo confonant to natural juftice, has been gradually extended ; and this diftindion between a devife to a truftee and to an executor, has been continually qualified, till at length it appears to be •altogether aboliihedc la Ch. IX. OF LEGAL AND EQUITABLE ASSETS. ^ « ^ In one clafs of cafes, both of an earlier and of ^ later date, courts of equity recognifing the union of the two characters of truRee and of executor in the devifee, regarded on that ground the real eftate, 3S merely a trud fund, and diPtributablc among all the creditors equally'". And other cafes con- "^ *r>.Wms. ^ ^ . 41''. not. 3. fidered it in the f^me light, although the devife 3Fonbi.403, were not to the executor exprefsly on trud, if iJ3.*.precT* accordino^ to the found conftrudlion of the will, he \}^r ''■"^' , . . ^lOie. 123, might be converted into a truftee, as if the devife j-S-'Atk.jo. were to him and his heirs ; fince the money could 94/°* ^ ^^' never be legal aflets in the hands of his heir : nor as againft fuch heir could an action be maintained by a " i Bro, Ch. creditor " ^^'P Append, tieuuur . ^ iBro. Ch. Hep. .35.138^ ,. 1 1 -r 'CI HI not. According to other deciiions, it the executor had only a naked power to fell in the capacity of executor, the lands defcended in the mean time to the heir of the devifor ; and, till the fale, he might enter and take the profits ° ; and the money arifinp- °Co.Litt.23^. from fuch fale, was held to be aifets at law ^, p ' Bro. Ch. Rep. 135.138, in not. But, by modern adjudications, it feems to be eflablifhed, that a devife to a mere executor, (hall bear the fame conflrudion as a devife to a truftee : that there is no reafon to fuppofe the tellator^s meaning to be dilFerent in the one inftance from that in the other : and, that even in the cafe of a mere power on the part of the executor to fell, the defcent feems to be broken, inafmuch as the vendee is in by the devifor ; but, that whether the defcent in fuch cafe be broken or nor, the aiTets fhall be equally ~ ^^ OF LEGAL AND EQUITABLE ASSETS. Book III. equally equitable; in fliort, that if the real eftate be, by any means, given to the executor, the produce of it when fold, fnall not be applied in a courfe of legal adtniniltration, but be diflributcd 1 1 Bro. €h. . ,• ., c, RfP. 137, i^S. as equity prelcnbes '. i Fonbl. ad edit. 398 in not. Vid. And, ahhouph it has been held, that where the Hai-'-r Co. Littfii3. ci eflate defcends to the heir charged with the pay- "°'-* -• ment of debts, it will be legal affets in him *■ ; yet, ' ' ^' Atk^ ^^^ '■^^^ '^^^ feems to prevail, that in this inftance 2,90. iP.wms. alfo, the affets fhall be deemed to be equitable ^ 416. not. z. Idi^39S!'hf ^"to f^'^^ ^^-ts as arc clearly legal, fhall not not. I Bro. Ch, affume, by bejnsr recoverable only in equity, an Rep. Append. . ,, '^ ^^ .. ^ n n 6. 2»r<). ch. equitable nature. Hence, ir a' mere trult eltate Rep. 94. defcend on the heir - at law, notwlthftanding a necejlity of rcforting to equity to reduce it into poffeffion, yet it (hall be legal affets, fmce a truft eftate is made affets by the ffatute of frauds. And, althougli an equity of redemption of a mortgage in fee, not being made afi'ets by any legiflative pro- vifion, has been confidered as merely an equitable intereft, and has been exprefsly adjudged to be tsAtk. 194. equitable affets*: Yet, there are ftrong opinions, AmbK"o8^'* ' ^^ ^^^ contrary ; and, that an equity of redemption, sBacAbr. 59. even in fee, though capable of being reached only in equity, fliall be claffed among affets at law. And, although from the fame inclination of ex- tending the idea of equitable affets, it has been alfo held, that if a termor for years mortgage his term, ojP.Wms. ^^^ equity of redemption fhall be of that de- 34;i.Arabi.3c8. fcription of affets ". Still, according to a variety of antecedent Ch. i3c. OF marsHai^ltng assets* ,. ^ ♦ antecedent cafes, fuch chattels, Vv-hether real or per- fonal, as are mortgaged or pledged by the teliator, Rnd redeemed by the executor, although capable of behig recovered only in equity, Ihall be afl'ecs at law in the hands of the executor, for the value beyond the fum paid for the redemption '". l.^n m;^'^''* I Leon. 155. Lands may be devifed to an executor, to be fold i nuW. iicji. by him for the payment of debts only, and then 's^- ' t^|^"wnJ. J >■ J - ' 76. 3 Alk. 291* they fliall be alTets merely for that purpofe. And, - fo the devife may be expreill-d to be for tiie pay- ment of legacies and not of debts ; and then it fhall be reilricled to the former. For, fmce the lands are not in their own nature alTets, but con- fUtuted fo by the will and difpolition of the devifor, they fhall not be afiets to a greater extent than he has thought fit to direct '■. ^ Off. Ex. 74. But, in either of thefe cafes, as I iiiali prefently £hew, the aifets may be maraialled. Where money by a marriage agreement is articled to be invefted in land, and fettled, fuch fund fhall be bound by the articles, and not be affets, either at law or in equity, for payment of debts \ Y 3 P. Wms, 217, The marlhallhig of affers remains now to be confidered. The perfonal affets of the tedator f]:iall in all cafes be primarily applied in difcharge of his perfonal debts 332 OF MARSHALLING ASSETS. Book IIL « 1 r. Wm'-. debts, or general legacies, unlefs he exempt them 294.. J!Ot.(i). , r 1 ' T n • • ^ aAiic.6:..,,62; by expreis wards, or maniielt intention'. 3 yitk. T02. 3 P. Wms.324. iBro.p.; wjj. A devife of all the real eftate fubject to the pay- Anjbi. "33 ment of debts will not alone exonerate the per- iWiii' g^.s.c. fQvj.^i eftate ; and even if the teftaror dired the J Jiro. Ch.kep. J44.. 454- real eflate to be fold for the payment of debts, the lol.iVern, pcrfonal eftate fiiall be applied ii exoneration of 7^5' ^^^^' the real '' ; and it fliall be thus applied, although iBro.Ch.Rep. the perfoual debt be fccured by mortgage, and allr'otch.iiVp, whether theie be, or be not, a bond or covenant ^Ba^'ib '^s ^'^^ payment \ So, lands fubje6l to, or devlfed 9. Fonbl. 290. for, payment of debts fliall be liable to dif^charge fuch mortgaged lands^ either defcended, or de- 3 Atk. 202. ' vifed '', and, although the mortgaged lands be de- "E^^cTa'^t/ "vifeti exprefsly fubje^l to the incumbrance % So, 493- ' lands defcended fliall exonerate mortgaged lands <^2Salk. 449- devifed ^ So, unincumbered lands, and mort- 3 p. VVms.a9i. . ^ . I Vern, 36. gsged lands, both being fpecifically devifed, but rAtk."i36' " exprefsly after payment of all debts, fhall contri- l^^^'%i^' bute to the difcharpe of the mortojage^. In all 6 isro. P. c 00 520.2Bro.Ch. thefe cafes the debt is confidered as the perfonal d ^"^aUc.^^st. ^^^^^ °f ^'^'^^ teftator himfelf, and therefore a charge iBro.Ch.Rep. the real eftate merely collateral, 840. * 2 p. Wms. 3^6. But a different rule prevails, where the charge is faAtk. 4^. ^^j.j ^i^g j.g^| efiate principally, and the perfonal 50V 2 iiZ^'f fecurity is only collateral ^ : As, where a huft^and 1'. c. I. QYi his marriage covenants to fettle lands, and to 222.'4.-,7, 664. ^''if'S a term or years out or them lor iecuring por- p','7^*^'?* tions, and alfo gives a bond for the performance 454. 1 Vcf. 51. of the cpvenant ; for in fuch cafe the land- ^'"^^- ^5^- holder Ch. IX. OF MARSHALLING ASSETS, holder enters into fuch covenant relying on tile 333 land to enable him to difcharge it ; nor does not. (b).**^'* the money raifed increafe the perfonal eftate, but 2i'-Wms.455. is to exonerate the refl of his real ^\ So, where i p.wmst34*7 the debt, aUhouc^h perfonal in its creation, was i Vef.51.25r.. o 1 • • n L Li A 1 S'a.Ambl.iij. contracted originally by another'. As where an aP.Wms.604. edate is bought, fubjed.to a mortgage, the per- chj^eiM^IS. fonal eftate of the purchafer fliall not be applied in aBro.ch.Rep. exoneration or the real eitate, unleis he appeared , ^ , , , I I . k ^ Fonbi. ao2. to have intended to make the debt his own *" ; but not (b.) a mere covenant for fecuring the debt will not be 6Bro."^c.s20. fafiicient for that purpofe \ ^ ^jo- <^'ii-Rep. ^ * 608. . . r 1 1- . r '^^'•Wms.664. With relpecl to tne priority of. the application of Aaibi. 171. real affets, when the perfonal eftate is either ex- ^7. a^ijio.'an* empt or exhaufted, it feems, that hrft, the real i^ep- 15*- 6-4. eftate exprefsly devifed for the purpofe fliall be ap- plied ; fecondiy, (to the extent of the fpecialty j^^.^;,^^^^^' debts) the real eftate defcended ; jdly, the real ^Atk. 4.24.. eitate fpecihcally devifed fubjecc to a general charge 2BroVch.Rop» ^^ "^^^^ • not.259.innot.3 As it is the objeft of a court of equity, that every ciaimant on the aftets of the deceafed (hall be fatisfied, fo far as that purpofe can be effected by any arrangement confiftent with the nature of the refpective claims of creditors, it has been long fettled, that where A. a creditor, has mors than one fund to refort to, and B. another credi- tor, only one, A. fliall refort to that fund, on which B. has no lien ". If therefore a fpecialty creditor, n i p. wm?. whofe debt is a lien on the real ailets, receive J Atk.^446!^' g fatif- » Vef. 313. ^ 3 Vef. 5 2- ^.^. OF MARSHALLING ASSETS. Sodk itL fativ^faclion out of the perfonal aflets, a fimple con- Verli. 4.j/' traft creditor fliali ftand in the place of fuch fpe- Eq. Ca.Abr. ^^j^j^y creditor aeainft the real affets, fo far as the 63.2Atk.430. latter ihail have exhaufted the perfonal aflets m j Woofldcl'. ^ , . o ^89. payment or his debt . The fame marihalling of affets may alfo take place in favour of legatees. As againfl affets defcended, , they {hall have the fame equity. Thus, where lands are fabjecled to the payment (^f all debts, a legatee fhall ftand in the place of a fimple contract creditor, who has been fatisfied out of the perfonal p 3?.\\ms. ji{]etsP. So, where legacies by the will are charged oil the real eilate, but not the legacies by the codi- cil, Uie former fliali rtfort to the real affets on a 03 ch.Rep.s^ deficiency of fuch as are perfonal to pay the wholes. 2 p. Wms. 620. Bu': tlie principles of thefe rules will not admit of thc.r being applied in aid of one claimant, fo as to defeat another. And th^^refore a pecuniary le- gatee lliail not (land in the plate of a fpecialty creditor, as againfl lands devifed, though he fliall ' I P. Wms. as atrajnfl lands defcended "■. Yet fuch legatee Ihall 678.31^ WOIS. n 1 . 1 ' 1- . T 1 324. {land in the place ol a mortgagee, who has ex- T^ib '^^"^^' haiilled the perlonal affets, to be fotisfied out of the Ambl. 171- mortgaged preuxifes though fpecifically devifed'; • vid I P. f^'" ^^^ application of trie perfonal affets in eafe of Wms. t94. the leal cllate mortgaged ' does not take place to the « I p. Wms. defeating; of any lecacy ". 693 730. ^ J b J a P. Wms. 190. 335' Nor do any of the rules above mentioned fub- jecl any fund to a claim to which it was not before 2 liable^ Ch. IX. OF MAllSHALLTNG ASSETS; « ^ - liable, but only provide that the eleftion of one claimant fhall not prejudice the claims of the others". Thus, where A. feifed of freehold, and "-^Atk. 438* copyhold lands, mortgaged them in his lifetime, and died indebted by mortgage, and on feveral bonds ; the fpecialty creditors urged the court in inarflialling the affets to call the whole mortgage upon the copyhold eftate, in order that the fpe- cialty creditors might have the benefit of the whole freehold eftate : Yet the court held, that as the copyhold eflates were not liable either at law or in equity to the teftator's debts farther than he fub- jected them to the fame, the copyhold eftate fhould bear its proportion with the freehold eftate for pay- ment of the mortgage, but ftiould not be liable to make fatisfadion for the fpecialty debts ^ '= Robinfon v. Tonge, cited I P.Wms. 679. If a legacy be given out of a mi: 1 Vef. 51. favour of a charitable bequeR, fo as to give it effea faw'.^" out of the perfonal chattels, it being void fo far as 3 vvooddef. it touches any iniereft iu land ''. .4^9. not. (g). ^ * CHAP. C ,337 ; CHAP. X, OF A DEVASTAVIT. TJAVING thus difcilfled what belongs to ^ht ^ difcharge of an executor's duty, I am now to confider, what fhall amount to fuch a violation, or neglect of it, as fhall make him perfonally re- fpoiifiblc. This fpecies of mifconducl is flyled in law a (Jevaifavlt ; that is, a wafting of the alTets \ " S'.ibV!; J,' Coin. Dig. An executor may incur tnis charge in a variety „ vin. Abr. of modes, not only by plain and palpable acts of 3o6. abufe, as giving away, embezzling, or confuming the property without regard to debts, or legacies ; but alfo by mifapplying it in extravagant expences m the funeral ^ ; in the payment of debts out of their t-Vid.fupr. ift. legal order, to the prejudice of fuch as are fuperior ; or by an affent to, or payment of a legacy, whtn there is not a fund fufficient for creditors ^ " ^^- ^^' ^5^. So If the executor releafe, or cancel a borjid due to the teftator, or deliver it to the obligor, this (liall charge him to the amount of the debt, whether ip point of fad he received it or not \ If he releafe "^ Qff.Ex.itg. a saufe of adiioHj accrued in right of the teftator, Z 2. whether 338 OF A DEVASTAVIT. Book III. whether before, or fubfequent to the teftator's death j e ofT. Ex. 71. jj^j ^l|- ^iii Y)Q a dcvajiavit \ If he fubmit to J 59 rlon. 00. •' Andr. 13S. arbitration, a debt^ or any other demand he may 1Z.43. ^^ entitled to in right of the teftator, and the arbitrator do not award him a recompence to the full value, this, as being his own voluntary acl, fOfFEx. 71. fhall bind him to anfwer the differenced If an 'i'^9, 160. . . . , . r 3'Leon.5i. executor take an obligation in his own name, jor a debt due by fimple contradt to the teftator, he Ihall be equally chargeable as if he had received the money ; for the new fecurity has extingulflied t Yeiv. 10. the old right, and is quafi a payment s. If, in keiiw.j/.* the charader of an executor, he' commence an adion, in which he has a right to recover, and afterwards agree with the defendant to receive a fpecific fum at a future day, as a compenfation, and the party fail to pay it, the executor, in that cafe, 'n 1 Lev. 189. is liable on a devojiavlt for the value ^. Thus, J Van. 'cj]l. ' where the executor of an obligee took in payment a bill of exchange, drawn on a banker, for the money, who accepted the bill, and before payment failed': on the executor's afterv/ards bringing an action on the bond, and this matter being difclofed i3Bac.Abr.78. 121 evidence, it was held to be a payment '. So, if in not. et _ ' _ , * •^ . vid. I Vein. an executor pay money in difcharge of an ufurious *^''" bond, or any other ufurious contraft entered into by the teflator, it {hall involve him in the fame * Hob. 167. r k Noyizj, confequences^ Such a£ls alfo of negligence, and carelefs adml- niftration, as tend to defeat the rights of creditors or legatees, fall under the fame denomination. h% if Ch. X. OF A DEVASTAVIT. ' if the executor delay the payment of a debt, prov- able on demand with Intereft, and fuffer judgment for principal and interefl incurred after the teftator's death j unlefs he can lliew that the aflets were infufficient to difcharge the debt imme- diately ', he (hall be held guilty of a devajiavit. 339 ' z Lev- 40. If an executor lofe any of the teftator's chattels, he fhall be rcfponfible for their value "". And, in mvid.zVern. a cafe where the executor had loft a bond due to *^^' the teftator, the court of chancery was inclined to charge him with the debt ; but, directed only, that he fliould profecute a fuit inftituted by him againft the obligor, with efFeft, in order to recover the money on the bond, and refpiced judgment in the mean time". If the executor apply merely by an "a Vcrn. 2:^9. attorney to the obligor of a bond to pay the debt, but bring no aftion, he ftiall be charged with the amount of it °. He ftiall, in like manner, be per- °3B 2 ronbl. acUdit iU. not. (q ••" iBro. Lh Rep 3' I. St(t vid* Mofcl. 98. Ch. X. OF A DEVASTAVIT. «^j^ as it feems, fliall he be fo liable, although, with- out the indemnity of a decree, he lend money on a real Iccurity, which at the time there was no reafon to fufpefl \ An executor has nlfo an ho- ned difcretion to call in a debt bearing intered, if he conceive it to be in hazard ^ If an executor merely give a receipt for fo much due on a bond, as he in faft receives, he fhall not be charged with ^devq/iavif for the re^ue^. Nor is a converfion of the goods of the teftator to his own ufe a de- Admou. i.i. 'uaJtav'Hy if he pay debts of the teftator to the va- ^^' ^'^ ^^^ lue with his own money''. Nor is he fo Hable if ^ ' Sai'nd.307. he pay a debt of an inferior nature out of his own ■purie to the amount of the teftator's effedls in his hands, for they remain equally liable to the claim of the fuperior creditor, and may equally be feized at his fuit in execution in fpecie, as the teftator's property ^ Nor, if the executor compound an *iSaund.si«. adlion of trover for the goods of the teftator, and take a bond for the money payable at a future day, does that adt neceflarily amount to a devafiavit^ as the money, for which the bond is taken, is affeis immediately ^ But he fhall be charged, as we f z Lev. 189; have feen ^, in cafe there be a failure in the pay- s supiv 338. ment of it. If there be arrears of rent on a leafe, and, en the tenant's becoming infolvent, the exe- cutor releafe the arrears, and give him a fum of money to quit poffeflion ; in cafe he appear thus to have a6led for the benefit of the eftate, lie Ihall ^ p ^r^^^^ be allowed both \ 381. ?4 M OF A DEVASTAVIT. Book IIT. If an executor become bankrupt, having wafted the afTets, the deva/lavii may be proved under the \?^^^'^}" commiffion^ Cooke's 4th Edit. 1 34» If the hufband of an executrix commit a devaf" iaviiy in cafe the executorfhip commenced before; the marriage, they ihall both be chargeable. If it commenced fubfequent to the marriage, the huf- band is liable alone. If an executrix commit a devajiavit, and afterguards marry, the hufband, we have feen, as well as the wife, is refponfible dur- ! * ^'"°' ^^^' ing the coverture '. A devajiavit by one executor Vid.fupr. z?T. fhall not charge his companion'' ; and, if there be koff. Ex. 161, feveral adminiflrators, each fhall be liable only for 3Bac.Abr.^3i! what he receives ■. Formerly, the executor of an s Barnes 440, executor could not be charged by a devajiavit committed by the firfl executor, although to the « iLeon.a4i Prejudice of the king, for it was held to be a /or/°, sBro.ch.Rep. and therefore to die with the party. But, by the flat. 4 & 5 ^. ^ M. i:. 24. / 12. an executor of an executor fliall be liable on a devajiavit com? mitted by his teflator, in the fame manner as h§ would have been if living. 324 €HAP» ( 343 ) C H A P. XI. pF REMEDIES FOR, AND AGAINST EXECUTORS, AND ADMINISTRATORS, AT LAW, AND IN E^ITT. SECT. I. Of remedies for executors and adminijlrators at law, T>EFORE I conclude, it will be neceflary to con- fider firft what remedies, either at law, or in equity, executors or adminiftrators are entitled to, in right of the deceafed ; and then, fecondly, what remedies may be had againfl: them. In regard to the firft of thefe points, the fubject has been in a great meafure anticipated by the dif- cuffion of the executor's intereft in the teftator's chofes in atlion^^ the exiftence of which neceflarily ^ vid. furr. fuppofes a remedy to give it effect. IXO. From, what has been already ftated, it appears that the executor reprefents the teftator vcl refpect to all his perfonal contrafts ; therefore, he may maintain fuch actions to enforce them as might \l ^f A^,''* have been maintained by the teflator himfelf ^ Eiiz. 377. ™, , CL- J 1 Latch, 167. Thus, an executor may have an action on a debt Roi1.Abr.91a. due to the teftator by judgment, ftatute, recogni- <^ff-Es. (>$. pnce, obligation, or other fpecialtyS So he is ^dmon.^fis. ' entitled 344 OF REMEDIES. Book III. « t Salk. 314- Mod. ("a. 126. Ld. Rayrn. 971. 15CZ. Vid. 3 Term Kep. 685. "Fort. 367. « a Ventr. a4-5* f Latch. 168. g Com, Dig. Admon. B. i; Covenant, B. I- 3 Bac. Abr. 91. a Lev. 26. Ventr. 175. ©ff. Ex. 65. fc Off. Ey. 65, Com. Dig. Waft. C. 3. s Inft. 305. Admon. B. 13. "ac.Abr.5 92. 3 Term Kep. 660. J^Al. I. ' 1 Noy 43- Cj-o.£iiz. 883- entitled to an adion cf debt, fuggefting a devajia' int in the life- time of his teftator, on a judgment recovered by fuch teltator againft an executor S So the executor of the ailignee of a bail bond fliall have an action upon it ''. So an executor may maintain an action on a bond, though conditioned for the performance of an award ". He may, alfo, have an aclion on a covenant entered into with the teltator to perform a perfonal thing ^ ; and even on a covenant that touches the realty, as for aflur- ing lands, if it were broken in the teflator's life- time, and in fuch cafe damages fliall be recovered by the executor, although he be not exprefsly named 2 ; for, fmce the teftator was entitled to an aftion of covenant for fuch breach, and to recover damages as the principal remedy, and not merely acceilary, the law devolves fuch remedy on the executor ; but if wafte be committed by the leflee, in the hfe-time of the leiTur, after his death, his heir can have no aftion for the wafte, becaufe he cannot recover treble damages : Nor can the exe» cutor have it, for he has no right to recover the place wafted, the inheritance of which has defcended on the heir \ The executor may, alfo, in right of the teft;ator, maintain an aftion on fimple contrails, in writing, or not in writing, either exprefs or implied ', and even on contrads for the benefit of a third perfon ''. He may, likewife, have an adtion for a relief due to the teft:ator'. And, purfuant to the flat. 13 Ed. I. Wefv, 2. c. 23. an executor is entitled to aa 8 action (^uXl. rOR EXECUTORS AT LAWV ^ . - action of account, on an account with his tefla- tor "' : but this fpecies of remedv in the courts of *? J;f "['• J?'^- law is fallen into difufe. He may, alfo, by the exprefs provifion of the ftat. 4 Ed. 3. c. y. have an aftion of trefpafs for the taking of the teibtor's nSupr. i^q. goods: And, although, the ftatute fpeak only of '*'" the carrying away of goods, yet its operation is Admun.'^j^'iu not conhned to that fpecihc trefpafs, which is Scmb. Latch. named merely for an example ; but it has been p ^^^-. ^^ ^^ held, as we have leen ", to comprehend other in- 68. juries to the tellator's perfonal eiiate " : therefore, q i Vcntr. 187. on this ftatute, an action will lie for trefpafs with >• Moore 400. cattle on his feafehold premifes p, or for cutting Latdf. TeiJ'^' corn though growine; on his freehold lands, and ^ Anderi. 2;2> . ^ -, r ' OIL 1 Leon. 193, carrymg !t away at the iame tune '^. 00, by the 194. iVentr. like equity of this ftatute, an executor may main- ■^°' tain an acllon of trover, for the converfion of the ^ Mod.^404!'^' teftator's eoods in his life-time'; or an a6lion of > ^'^^^- 314-' I Vciitr. 30. debt on the ftat. 2 & 3 Ed. 6. c. 13. for not fetting 3 Eac.Abr.9u out tithes due to the teftator ' ; or a quare impedit, '" "°^* in cafe he died within fix months after the ufurpa- g,, SA\^\i^* tion ' ; and, it feems, that, under this ftatute, an \:i^^^^- ^^^* executor may maintain ejedment for an ot{/ier of Poph. 1R9. the teftator, although he were feifed in fee, be- ^ '^°"" ^'^' caufe, in fuch cafe, the executor may proceed m j Ycr^u- %o. that form of action for damages only ", in the fame 3 'Texm. Rep. manner as a leilee where the leafe expires pending ^^ xermRep thefuit^. 16. argdo. Co. Litt. 2S5. Stra. 1056. By the common law an executor is entitled to ^ ^ j.;^,^ g^^ an adion of replevin for goods diftrained in the Latch. ifi8. o • r 1 • r Off. Ex. 66. teftator's life-tmie '^ ; or to an action oi detniue tor oiib. l. of Diftnjdedit. »s 46 7 Latch. 168. OIL lil. 65. OF REMEDIES Book IIL any fpecific chattel; or to bring eje6linent to reco- ver land held for a term of years ; for, in thofe inflances, the thing itfelf is the object of the aftion, and the property continues in the plain-^ tiff^ He may, like wife, avow for rent in arrear at the teftator's death, as incident to a reverfion for cffh-ds^A^'a ycars, which devolved upon Jiim as executor*. J Roll. Abr. 30Z. 107. An executor (hall alfo have an a6lion againft a * ow. 25;^. fl-jei-ilT for the efcape of a party in execution on a judgment obtained by the teflator, even where the i» Com. Dig. efcape happened in the teftator's life-time ^. So he Admon.B.13- , ex- • n. u /i. -rr r Tro. (ar. 397. may have an action agamit the Iherili tor not re- Ld!^iiay"m. ' turning his writ,- and paying money levied on a 973- jicri facias" J or for a falfe return, ftating that he * I Roll. Abr. \^-^A j^ot levied the debt, v/hen in truth he had ^ 913. Cro. Car. ^ , r 1 11 1 • • " 297. bo the executor or a landlord may mamtain an "^ \^\^'\z.'^'^ a6lion againft an ofticer for removing goods taken comb.3z2,",2 3- in. execution before the payment of a year's rent ". I Ld.Raym.40. ' ^ \ r^ r 1 3Bac.Abr.9x. So, ni the character or an executor, he may have' estra 212. a Writ of crror ^ And it has been held that he i Latch. 167. may have fuch writ to reverfe the teftator's attainder of high treafon, inafmush as the executor is privy to the judgment, and may be damnified by it ; but, on the other hand, it has been infifted, that though the reverfal reftore the blood and laad, it is of no avail to the executor, fince the goods are forfeited by the conviclion, and not by the at- « 1 Saik. 295. tainder ^, An executor is likewife entitled to the ft V, ^'^' t remedies Jbl. Com 387. Ch. XL FOR EXECUTORS AT LAW. ^^^ remedies by aftlon of difceit, by audita querela^ or identitate nojninis \ I^^-^^r''* ^^''' On Lx 71. sRac.Abr. 60. He may alfo fue in that charader in a court of tonfcience ^. - ^ Dougl. 24.5. And by the flat. 1 1 Geo. 1, c, ig. f. 15. above ^ supr. i6r. referred to ^, an executor of tenant for life, on whofe . death any leafe determined, fhall recover of the Admoii. bTij. lelTee a jufl: proportion of rent from the laft day of ^6''9J^'i Anderf. payment to the death of fuch leflbr. 243- Jon- ^U- '^ I Ventr. 187. But an executor has no right to an aftlon for an exV6776s. injury to the perfon of the teftator as for a bat- '3Bac.Abr.92. tery, imprifonment, or the hke * ; nor for a pre- SMod.^zig judice to his freehold, as for felling his wood, or 3 Lev. 261. . , . 1 • r r 11 Comb. 1 c I . cuttmg and carrying away his grals: lor vi^ood, and show. 35. grafs growing are pai'cel of the freehold '', and confe- ■^'^^' ^^'^j^"^'. quently in fuch cafe the heir, and not the executor, i;'?- accord. is the party injured. Yet if the lord of a manor *" Com. Dig., rr r r 1 11 I' ? • 1 • 1 P^Clder, (2. O. aliels a fine on a copyholder ior his admittance, and i.) jLeor..2fa. die, his executor may bring an action for it ; for « 3 Bac. a^v. it does not depend on the inheritance, but is like ^3- iRoiiAbn ^ 602. a fruit fallen'. oofF.Ex.8z. II Vin. Ahr. asi. L. of Ni. The executor may alfo m right of the teitator i>r. 158. maintain adions, the caufe of which accrued after p i Term Rep. the teftator's death "", as in cafe a bond given to the jlpj^^.c^, teftator be forfeited after that event " : or a per- pig. Header, (2, D. 1.) fonal covenant entered into with the teflator be bro- 3 Bac. Abr. 94., ken ° ; or a debt on any other fpecies of contraft ^ co.7°- b» Blade with him, become payable^; or his goods Cro. Car. ^25. ' ^ , » Lev. 3ia. • ce o.-g OF REMEDIES Ifeoic Ilf. ^4Bac Ahr. be taken ^ ; or trefpafs committed on his leafe- ^Roil^'Abn'^' ^^^^^ premifes' ; in all thefe, and the like inflances, 60?,. Lsrie 80. the executor in his reprefentative capacity is en- 6 Mod. 92. J . rf. t J ^. titled to a remedy by action, i-Com. Dig. ^ ^ Ai'moii. B. 13. Off. 1 X. 70. g^^ jf ^l^g teflator died poffelTed of a term for sVid,fupr.io6. years in an advowfon, it vefts, as we have feeri% in his executor j and, therefore, in cafe of his being t OfF. Ex. 36. difturbed, he may maintain a quare impedit \ So, an executor may have an adion of replevin for goods, « OfF. Ex. 36. taken after the death of the teftator ". An exe-^ cutor may alfo avow for rent accrued due alter that time, as Incident to a reverfion for years» « Com. Dig. which veiled in him in that charader "", Admon. B. 9. ' I Salk 302.307. ao/Tsh'ow. ^^ ^ defendant in execution on a judgment re- a54.Vid.fupr. covered by the teftator, efcape after the teftator's death, the executor fhall have an adion againft the *3Bac. Abr. (heriff for the efcape*, as he iliall, alfo, in cafe 57. Off. Ex. 46. , , r 1 • • -1 Godb. a6z. the derendant were in execution on a judgment Vid. lupr. 346. recovered by him as executor \ y 1 Roll. Rep. 576. I Ld. iiaym. 35. So, a bail-bond may be affigned to the executor jag. ' of a deceafed plaintiff, and he may bring an a6tion a Fortef. 370. upon it "" : or a bill of exchange may be indorfcd to A. as executor, and he may, in that charader, » I Term Rep. jj^^intain an adion on the bill againft the acceptor \ And, in like manner, an executor may bring an Piea^Tr, '^* adion on any other contrad made with him in his Cro°Ca;?68^ reprefentative capacity K Roll.Abr.6oz. 3Bac»Abr.93. j^^ ^M. XT. FOR EXECUTORS AT LAW. 349 An executor may hold to bail on an affidavit of his belief of the exiffence of the debt, for the na- ture of his fituacion will not admit of his being more pofitive ^. Therefore, if an executor fvvear ^y^^^^^^^^ to the books of the teftator, and that he beheves Abr, loi. them to contain a true account, and the debt to be dill unpaid, it fliall be fufficlent ^, Bat, an p;,^:^;;;^^* affidavit by an executor, that the defendant was indebted to his teilator in iifty pounds, as appears by the teilator *s books, was held clefetlive, and common bail ordered ^ Pr'a?^!''*' Stra. 1219. It rs a general rule, that an executor, when plaintiff, lliail pay no colts, for he fues in aider droit, and the law does not prefume him to be fufficiently cognifant cf the nature and foundation -of the claims he has to alTcrt ^. Therefore, if an ' ^ ^^?- "^J"*' ' 100. Cro.jAC, txecutor bring an action of trover on a converfion 228- YcIv.k,?. in the teftator's life-time, he fhall not be liable to c.Kth.zgu ^' cods *. Nor ffiall he be liable, if the trover were ^ ;^^od. 244. •? Lev. 375. in the teftator's life-time, and the converfion after Skin. 400. his death ^. Nor, Ihall he pay colts in an adion, <"4 Term Rep, for a debt due to his teftator in his life-time \ l''^' „ ^4 Term Rep^ Nor, in an action for a debt due on a contract 28 t. made with the tedator, which became payable after ''4TermRep. .his death ', Nor mall an executor be fubje£t to ijLordRaym. cofts on a writ of error, on a judgment recovered i+»3-Stra.682. r • 1 • n • via. 4 Term againft the teilator" : for, m all thefe inltances, it Rep. 278. is neceffary for him' to fue in his reprefentative ^3 Lev. 575- 1 fv J r ^ t • r f r ^'^- 4 Term character, and exprei:ily to name hnnlelr executor. Rep. 289, But, if he may bring the action in his private capacity, there, if he jail, he Ihall be liable to cofts ; as in au a. Vid. 1 Atk. 4.60. By flat. 25 E. 3. c. 5. the executor of an ex- ecutor is put on the fame footing, in regard to the bringing of atlions, as an immediate ex- » Vid. Off. Ex. ecutor \ 257. Godb. An executor, de/on tort. Is not entitled to brmg any action in right of the deceafed. As he comes in by wrong, he is Hable to all the trouble of an c a Bl. Com. executorfhip, without any of its privileges \ (jo;. 2 P.Wms. '58.3. vid. fupr. , . r i_' • n a27. An adminiflrator may, in right of his mtefiate, maintain adions in the fame manner, as an executor ^ Com, D^g. in right of his teflator ''. Admon.B. 13. Off. Ex. ajg. All fpecial and lim.ited admlnldrators likewife, may maintain adions in right of their refpedive inteflates. And, indeed, the principle, on which the ordinary has the povv-er of granting fuch admi- ' "/v^X'^l' niilrations, is, that there may be a perfon capable 576. 6C0. 67. ' ' ' n b. of recovering property belongmg to the eilate % If 35^ Ch. Xr. FOR EXECUTORS AT LAW. If an adminiflrator durante minoritaU bring an a£lion and recover, and then his admimllrationL determine by the executor's coming of age, fuch executor may hare a fcire facias on the judg- ment ^ ^'^''Ht-'^' I Roll. Abr. 888,cJ89. So, if fuch adminiiirator obtain judgment, he j Lev/j'^g/.^^ may bring -^ fare facias againft the bail, nor can iVern. as. they objed that the executor has attained the age of twenty-one j for the recognizance is to the admi- niflrator himfelf by name^ But, it feems to be a ^sBac.Abr.ig- queftion, whether in fuch cafe, he or the executor lliall fue out execution on the judgment *" , •'a Lev. 37. If there be fevera! adminiflrators, they mufl, like co-executors, all join in an a£lion '. Abatem^nf ' E. 14. Pleadcfj (aD. 10.) If a judgment, after verdid, be recovered by an executor or adminiflrator, in fuch cafe an admi- niflrator de bonis non, is by flat. 1 7 Car. 2. c. 8, entitled to fue z fcire facias, and take out execution on fuch judgment. In cafe a party died feifed of a rent fervice, rent charge, rent feck, or fee farm, in fee-fmiple, fee-tail, or pur auter vie in the life-time of ceflui que vie, the common law alibrded no remedy to recover the arrears due at the time when the owner of fuch rents died. It was therefore enacted by the flat. 32 H, 8. c. 37. '% that the executors and admi- k vid. - fiac, niilrators of tenants in fee, fee-tail, or for life, of Abr.gi.^iBac. A. r Abr. 28z. ill iuch rents, may have an action of debt for all fuch not. 4. Bum A a 3 arrears. 354 OF REMEDIES Book III. arrears, or may diflrain for the fame upon the lands chargeable, fo long as they remain in the pofleflion of the tenant, who ought to have paid the rents j or of any other perfon, claiming under him by purchafe, gift, or defcent. The Itatutfe alfo provides, that a tenant piir auter vie, his exe- cutors and adminiftrators may, after the death of cejlid que vie, have an aftion of debt, or may diflrain for fuch arrears incurred in the lifetime of cejliii que vie. Before the palTing of this a6l, the inconvenience did not exifl: to the fame extent, in regard to the executor of tenant for his ovim life, or to the executor of tenant pur auter vie, after the death of tefiui que vie: for, by the common law, an executor in either of thofe cafes, had a remedy, by action of I Harg^. Co, debt, for the arrears of rent which had accrued in Litt. i6z. the lifetime of the teflator' j but, it has been ad- L. ofDiftrefs, judged, that the ftatute being remedial, applies td 3d edit. 33. ^1^^ executors of ail tenants for life ; not merely to « Harpr. Co. f^^^j^ executors, as, previoufly to the flatute, had no Co. Litt. 162. J > f J 3 b. not. I. Ld. remedy whatever, but alfo to thofe who 'w«ere en- Cro^Eiiz^^s'z. titled to an action of debt, to whom, therefore, it ^/'^J^'-P'- gives merely the additional remedy of diftrefs"'. G;ib. L. of Di- Yet, although the executors of all tenants for life, be alf SedvSI ' authorifed by the ftatute to diflrain for fuch ar- cro. Car. 471. j-^^j-g n^ jj. fge^^g^ t^^t rent referved on a leafe for «Ld, Raym. years, is not within its provifions, inafmuch as the »L ofNi Pr laiidiord is not tenant in fee, fee-tail, or for Hfe, of 5tii tdit. 57. fuch a rent ; and the executors of fuch tenants only i)inufs," 3d are mentioned in the ad"*. However, ia trefpafs, tdit, 34. __ where Ch. XT. FOR EXECUTORS AT LAW. ^^^ where It r.ppeared the defendant had dldrained the plaintifl^'s goods, for rent due to his tedator on a leafe for years, Lee, C.J. held it to be compre- hended by the Hatute, and the defendant obtained averdift". Kiiuck, at Weftininlter, P Powel V. Killick, at Weftminlt M. 25 Geo. z. q L. of Ni. Pr. Nor does the ftatute extend to the executor of the grantee of a rent-charge, for a term of years, if he fo long live "J : Nor to copyhold rents, but only ^thedit. 57, to rents out of free land ^ r ^ bic Abr. 282. in not. Yelv. 135. Sed But, the executor of an executor, is held to be vid. caftii. 91. within the equity of this ftatute % • Off. Ex. 258. An executor may alfo prove a debt due to the tellator under a coramiiBon of bankruptcy '. kei^Tio^'^* In cafe a commiflion has been fuperfeded, the executors of the party, againfl whom it iifued, may take out a commiflion for a debt due to him ; but, if it has not been fuperfeded, they have no fuch right; for the debt having vefted in his affig- nees, the executors are incapable of being the petitioning creditors ". Executors, in their reprefentatlve character, may fign a bankrupt's certificate '^. And, even where 4th edit 497/ the bankrupt's father being principal creditor, chofe ^ ^^^ ^^' himfelf fole aflignee, and dying inteflate, the bank- rupt, "as his reprefentatlve, chofe himfelf aflignee, 4tH°dit.'49S^* itid figned his own certificate, it was held regular ''. Green a^o. A a 3 But, " I Atk. 10Q4 3S6 OF REMEDIES Book HI. But, an executor, who has alfo a claim in his own f 1 Atk. 85. right, cannot fign in both capacities ^. If the bankrupt's eftate pay a clear dividend of ten fliillings in the pound, his reoicfentatives are « Cooke's B.L. entitled to the allowance ^ 4th edit- 533. J Atk.ao8,209. ^ ^^' If the executor of a trader only difpofe of the flock in trade, it will not make him a trader, or fubjecl to a commiflion of bankruptcy. Thus, where the executor of a wine-cooper found it neceifary to buy wines to refine the flock left by the teftator, this was held not to conllitute him a » Cooke's B.L. trader *. But, in cafe the teftator dired the refidue 4th edit. 67. ^£- j^jg Q^2ite to be employed in carrying on his trade, fuch refidue fliall be liable to all the debts of the trade. And, it feems, that in cafe the executor fhall thus carry it on, he may be a bankruptj 'o Cooke's B.L. although his name do not appear, and will be per^ 4th edii:. 67. fonallv refponfible for the debts \ in not, '' * SECT. II. Of remedies for executors and adminljlrators in equity, AN executor or adminiftrator is alfo entitled to all the equitable interefls of the deceafed, and may, « Vid. Com. in his reprefentative capacity, enforce them in a * Prac. Reg. ad edit. 709. J Cii. Ca. 265. If a temporary executor prove the will, and after- wards his executorfliip determine, the fubfcquent executor may maintain a fuic without another probate ^, An adminiftrator fliall be relieved in chancery againft: a fraud to his adminiftration. As if the grant be wrongfully obtained, and afterwards re- pealed on citation, an aflignment of a term by the grantee in trufl for himfelf, fhall be revoked, and iiChCa 119. avoided by the fubfequent adminiflrator '. Com. Dig. thancety, ■ ^'^ If a bill be brought by an admlniflrator du- ranie mimritaie, and, pending the fuit, the exe- cutor come of age, he may continue the fuit by » Miif. 6j. a fupplemental bill "", In cafe an adminiftration be determined by death, a bill of revivor, by a fubfequent admiAJHrator, ha* not. 2 vern. been admitted ". 337. 2Eq. Ca. « Mitf.6i.in not. 2 Ve 337. 2 Eq Ahr. s, 4. SECT. Ch. Xr. AGAINST EXECUTORS AT LAW. ^ - SECT. III. Of remedies at law againji executors and adminl' Jirators, I AM now, In the lafl place, to treat of the re- medies againfl executors and adminlftrators, or the means which the law prefcribes to enforce the per- formance of their various duties. • As reprefentatives of the deceafed they are an- fwerable, whether exprefsly named or not, as far as they have aifets for all his debts, covenants, and other contrails \ An executor is thus liable off Ex. iiyf' for all debts due from the teftator by judgment, ^\^ ^«o. Car. J J o '' » 1X7. Jon. 223, flatute, recognizance, obligation, or other debts by Ydv. 103. record or fpecialty ^ b com. Dig. Admon. B. 14, Off. Ex. n 8. So, an a6lion of debt lies againfl; the executor bfafheriff, on a judgment recovered againfl the teftator, for an efcape \ ' ^Y^^ 34i. So, an a£lion may be maintained againft an exe- cutor on other inferior debts of record, as iiTues forfeited, fines impofed at the aflizes, quarter fef- fions, by commiliioners of fewers, or bankrupts, by ftewards in leets, or the like ^ Admon. b.%. Off. Ex. 118. * He ^^^ OF REMEDIES Book III. He is, alfo, fubjeft to an adion on the teftator's «SMlk. 297. obligation: or on his covenant, as to pay rent % 811.387.406. G / -r f A iM Com. Dig. or to repair premiles . An executor may, hke- Covcnant.C.i. ^.^^^^ ^^ ^^^^ ^^ ^^^ j^^.^ ^^ ^j^^ ^^^^^^ ^^^^ ^ ^^^^^^ 15^^09"^'^' due from the teftator «f. So, an adion lies againft Ld. Raym. ^H cxecutor on fnnple contrafts of the teftator, ^^^^' . either in writing or by parol, either exprefs or im- Admon. B.''i4. plied, as on bills of exchange and promiffory notes, Noy43>44- debt for rent on a parol leafe '', or ajfumpfit for h Com. Dis- money had and received by the teftator to the . g ^ plaintiff *s ufe '. So, an aftion may be maintained , 10 Co. 77- b. by a gaoler againft an executor for provifions piowd. i8a? * found for the teftator in prifon'' : Or againft the k 9 Co. S7. b. executor of a fheriff, who levied money on 2l fieri 1 Com. Dig. facias, and died before he paid it': Or, as ic ■'^^''^,*'!^u^"^'*' feems, acjainft an executor on a collateral promife iRol'.Abr.oai. ' o _ r ^ Jon. 430. by the teftator ", as, where he promifed to give A. Mar. 13- ^ ^^^^ q£ j^^Qngy 'y^ confideration that he would M Com. Dig. T» AdmoH. B. f4. marry 15. I Roll Rep. 14. Cro. Jac 404. ^ 3 Bui. 2 6. In ftiort, in all cafes where the caufe of adlioil ow. J6, 57. is money due, or a contra61: to be performed, gain Palm. 325. Qj. acquifition of the teftator, by the work and la-» bour or property of another, or a promife of the teftator, exprefs or implied, the aftion furvives againft the executor. But, where the caufe of ac- tion is a tort, or arifes ex del'iBoy fuppofed to be by force and againft the king's peace, there the ac- tion dies, as, battery, falfe imprifonment, trefpafs, « Co:t(i. t»ig. jQander, nuifance, diverting a watercourfe, efcape, Admon. B. 15. " r u Off. Ex. 1-.7, or on a penal ftatute, and manv other c^fes of the 12S. Hambly ,m l • J n X. Trott, like kind . «owp. 375. Su^jj Gh. XI. AGAINST EXECUTORS AT LAW. Such are the fpecies of actions which furvive againft an executor, or die with the perfon, on account of the caufe of action. But there are other fpecies of actions which furvive, or divi in refpe<5l of i\iQ fonn. In fome anions the defendant could have waged his law as in debt on a fimple contra6l, and, therefore, no adion in that ft^m lies againft an exe- cutor; but now other adions are fubflituted in their room, on the very fame caufe, which furvive, and may be maintained againft him. No aO:ion, where in form the declaration muft be quare vi et armisy et contra pacem, or where the plea muft be, that the teftator was not guilty, will lie againft an executor. On the face of the record the caufe of afllon arifes ex dclido, and all private criminal injuries or wrongs, as well as all pubiick crimes, are buried with the offender. But in moft, if not in all the cafes, another aclion may be brought, which will anfwer the pur- pofe. An aftion, on the cuftom of the realm, againft a common carrier, is for a tori and fup» pofed crime, the pl^a is not guilty, and, therefore, an action will not lie againft an executor ; but of- fufnpjiiy which is another adion for the fame caufe, is maintainable. So, if a man take a horfe from anotherj and bring him back again, an adion of trefpaf§ 361 ^52 OF REMEDIES Booii III. o • Cown. trcffpafs will not lie againft the executor, though it would have lam againft the party himfelf. But an a61:ion for the ufe and hire of the horfe will lie againft the executor °. Nor is the executor chargeable for the injury done by his teflator in cutting dowii another man's trees ; but, for the benefit arifing to his teftator from the value or fale of the trees, he • Cowp. 376. may be called upon to anfwer p. Nor will trover lie againft an executor for a converfion bv his tef- tator ; for in that cafe the form of the plea is, that the teftator was not guilty, and the iifue is to try the guilt of the teftator : But if the teftator fold the property in his life-time, his executor ftiall be charged in an action for money had and received by the teftator to the plaintiff's ufe, The fundamental diftin6lion then, is this : If It is a fort of injury, by which the offender acquires no gain to himfelf at the expence of the fufferer ; as, for example, beating or imprifoning a man, there the perfon injured has only a reparation for the delid:um in damages to be afleffed by a jury, and, therefore, the executor is not liable : But, where, befides the crime, property is acquired which benefits the teftator, there, an action for the value of the property fix:;.!! furvive againft the repre- ^cowp.376, tentative ^. f The executor is alfo liable on contrads of the teftator, although the caufe of aftion accrue not till » Com. Dig. after his death j as on a bond which becomes due, Pleader, (».©. ^j. ^ ^^^^ payable, fubfecjueat to that evait: \ The Ch. XL AGAINST EXECUTORS AT LAW. 3^3 The liability of an executor to the payment of Ten: incurred after the teftatQi's death, has been already confidered '. » vid. funr. In the cafes which I have been enumerating the executor fliall be liable only to the amount of the aflets'. But there are caRs in which he ^yCo.83.b, fhall be perfonally refponfible de bonis prcpriis ; as if he conimk any of thole a(^s which conflitutc a de-vajfavitt on its being duly fubllrantiated, he muH" Jmfwer out of his own eftate for the value of what he has wafted ". An executor may alfo make " Com D?^. imielr cnarr:;eaDle m his private capacity to a plain- ^ r ic. Ahr. 7-. tiff's demandj by pleading a plea, the falfehood of ^^- ^^' ^i7- which lies in his own. knowledge, and which, if true, would be a perpetual bar to the action^. ^♦ off. Ex. if?-. Therefore, if an executor plead ns unqucs executor ^ S^'i/Mu'^^* that he never was executor ''^ or plead a releafe made 9-0. Godoiph. to himfelf >', and it is found againfc him, the judg- Kw. .^83. ment fnali be in the alternative de bonis tcftatoris et ^ ^'' -^°P-''-°'^ r J 1 ■ "A ir 1 ''iRolLAbr. Jt non de boms propnis. An executor may alio make 9-0. 933. himfelf perfonally liable by his promife to pay a J'Cro.jac.671, debt of the tcitaror, or anfwer damages out of his own eftate 5 but purfuant to tlie ftatut^ of frauds fuch promife muft be by fome note or memoran- dum in writing, figned by him, or fome other per- fonbyhis authority*" : There muft alfo beafuffi- ^vid. Cowp. cientconfideration to 'fupport the promife : It muft *^9- be alleged, and proved, that affets were come to his hands ; or that, in confideration the creditor v/ould forbear to fue him, he promifed to pay the ^CmEliz-^r. debt " : Or an admiilion of alfets muft be implied citld'cowp. 2 from ^^3' 3^4 OF REMEDIES Book IIL from the nature of the promife itfelf, as where the defendant owned the money lay ready for the plain- b^Camden V. ^\{Y whenever he would call for it "^ : In all thefe cafes Covvp. 393. the executor fhall be liable to the fame fpecies of judgment. Forbearance to fue, although the re- medy be only in equity, is a fuSicient confidera- •-•3Hac.Abr.90. tion ". 1 Sid. 89. 1 Lev. 71. iRoil.Rcp.a;- B^t^ Jn c^fe there be no afiets, a pro.^iife by an executor to pay a debt of the tellator is nudum ■pac* ^ 5 Term Rep. ^nj^i d. Nor fhall an executor's paying interefl on a bond due from the teflator be confidered as an admiffion •^5 Term Rep. of alfets for the principal ^ Nor fhall an execu- ^- tor's merely rubmi'Lting to an award amount to an f 5 Term Rep. admiffion of aifets f. Butif the executor bind him* ^' felf by a perfonal engagement to perform the award ; or if his fubmiflion to arbitration be a reference not only of the caufe of adion, but alfo of the quefiiion, whether he has, or has not, affets, and the arbitrator award the executor to pay the , amount of the plaintilPs demand, it is equivalent to determining as between the parties, that the executor had aifcts to pay the debt. The defend- ant therefore is concluded by the award, although it will not operate as an admiffion of afiets in any other Htigation j and he may be attached for non- e I Term Rep. payment ^. (;9i. 5 Term Rtp.7. •* Term Kcp-43S- According to a modern decifion an action may be maintained in a court of common law againfl an - executor Ch. XI. AGAINST EXECUTORS AT LAW. ^r executor in that charaO:er on his exprefs promife to pay a legacy in confideration of affets ^ And, h Atiins v. in another cafe, it was alfo ruled, that on the J^^^* „g fame promife, grounded on the fame confideration, an a(5tion will lie againft an executor perfonally in his i pjawkes v. own rio;ht'. Saunders, ^ Cowp. 289. But this dothe affefs. It were unreafon- able to fubject them to an arreft in their reprefen- tative capacity °. But they may be held to bail, if it appear that they have wafted the property ^ Yet a bare fuggeftion of a de-vafiavit is not fufficient for that purpofe without the oath of the plaintiffs. So where on a judgment againft an executor exe- cution is fued out, and the Iherifi returns a devaf- tavit, in an aclion of debt on the judgment the executor may be required to put in fpecial baiT. Where an executor has perfonally promifed to pay a debt, it feeuis he may be holden to bail on fuch promife *. An executor defendant fliall pay cofls in all cafes in which the plaintiff prevails. And the judgment for thecofts is de bonis tejlatoris ft, etft non^ de bonis fropriis \ An executor defendant (hall have cofts in cafe of a judgment ia his favour ". Before 3^7 Cti. XL Against executors at law. Before the flat. 38 Geo. 3. c. ^y. an infant exe- cutor, after he had attained the age of feventeen, might have been fued, in which cafe he was to appear by guardian, and not by attorney, when the fame judgment might have been recovered againfl him as againfl any other executor ^^' ; but in confequence ^ 5 B?.c. Abr. of that a6t, till he comes of age he is neither capable Abr. 187, 288.' of fuing, nor liable to be fued. Crfj^J'^.o. 1 Roll. Rep» A limited executor is alfo fubjecl to be fued dur- 380. ^ Vid. Off. Ex, ing the continuance of his office ". ' ai5,ai6. In an adion againft a married woman executrix the hufband muft be joined ^ On a judgment y Com. Dig. againft hufband, and wife executrix, if fhe furvive, off?Ex! 203. an aclion of debt does not He fuggefting a devajiavit *" 7- 3 Bac^ by the hufband ; for although, in cafe flie married after the teftator's death, flie is anfwerable for the Wafting by the hufband % yet fhe fhall not be charged ^ ^Id. fupr. de bonis propriis for the cofts recovered againft *""* • Admon. (I. 3.) a Lev, 161. If there be feveral executors, they muft be all fued\ in cafe they have all adminiftered. But jjfoiS;^.^^'*^. fuch as have not adminiftered may be omitted " : c 3 n^c. Abr. for although executors themfelves muft be con- s2.1Lev.161. 1 1 •!! n » Sid. 343. fcious how many are named by the will, and muft, as we have feen, frame their adion accordingly ; yet creditors and ftrangers are bound to take notice of fuch executors only, as in fa6l execute the office. If one only confefs a judgment, it feems now fettled that it fhall not bind nor conclude B b the /:o "OF REMEDIES BookJIT. a Off. Ex. 9«. the reft''. If they plead diflinft pleas, it is faid, Vid.fupr. a8.. ^^^^ ^^ji ^g feceived which is beft for the feftafte, dr ti Off. Ex. 9!?. j^Qft decifive of 'the queftion ''. Of co-executorg, ^Bac. Abr. ,?,3. ._„ cru it -r i^ Godoiph. 136. if fome are 01 mil age, and others inrants, the virfupr.^Sa. ^^^'^^^ ^^y ^^ agninfl- them all ; bat the latter can- not appear v^ith the others by attorney, -but mufl ejBac.Abr.i.^. appear by guardian/. 619. Yclv. 130. • Styl 318. vid. 5 Mod. 2t6. T^ -g Clearly fettled, that one executor fhall 2 Slra. 784- . • , , . , 1 7 /7 • r f not be charged with the ac'uafia'vit or his com' panion, and ihall be hable only to the extent df f ijBac.Abr.si. the airelSj which came to his hands ^ The tefla- Oir. Ex. 161, , 1 . T 1 J 1 • r y j6a. Godoiph. tor s having milplaced his conndence in one exe^ ^^''- cutor Hiaii not operate to the prejudice of the iCro.Eliz.31S. others ^ An executor of an executor fliall, as I have al- ready mentioned, purfuant to the ftat. 4 & 5 ^. & M. c. 24. f. 12. be charged ori a devnJlavH com- - ~ micted by his teftator in the fame manner as fuch »> Vid. Com. teltator would have been if living ''. But although, as df'i.) "^'°"* ^^ \^2C^J^ feen ', an adion of debt may be maintained 3 Bac. Abr. 99. by A. an executor,fu^fTeftinjr a deva/ia'vit in the life- Oti. E.\:. 2j9. ' n • 1 11 sMod.in. time of his teiiator on a judgment, recovered by jfjj. Vidlfupri fuch teftator againft B. alfo an executor ; yet in S43. f.jch cafe It feems as againft B.'s executor, a i Supr. 343, />/r^ facias is requifite, inafmuch as he was not k 971 •^Saik.,14. privy to the judgment Ld. Raym, An executor defon tort is liable to the aftion of the lawful executor or adminiftrator, or to that of a creditor j and, in the latter cafe, may be charged 2 «is « Off. Ex. 178; Ch. Xr. AGAINST EXECUTORS AT LAW. r6o as executor generally '. If there be alfo a lawful ' Com. Dig, executor, they may be joined in an aftion by a credi- CMiiirio4.* '* tor, or fued feverally "'; but, it is otherxvife, if there ^^'^ Ev. ,77. 5 Co. ^i. be a lawful adminiflrator, he cannot be fo joined with an executor a'e /on tort". If a cieditor take out adminiftration, he may recover his debt againit him, who, before the grant, was execuior di^ /on tort, as well as the goods of the intellatej taken or converted previouily to the fame ". Admor ?.'^* Sti. 384. A party, as we have feen p, may be an executor p Su^ir. 19. de fo7i tort of a term, and is chargeable for wafte committed by him on the demifed premifes \ If off E^^^sf,ppj^ an executor de /on tort be guilty of that, or any i^-a. other fpecies of devq/iaOit, or plead 7ie unques exe- 'cutor^ and it be found againft him, he fhall be charged as another executor de bonis proprm ^• but, r 'CfT. Ex. 157. in general cafes, he is liable only to the amount of the aflets which come to his hands '. * Dyer 166. b. not- II, By the flat. 30 Car. 2. c. 7. made perpetual by the feat* 4 & 5 ff. & M. c. 24. above referred to, the executor of an executor, in his own UTong, is ^chargeable on % devajiavit by his teftator,. in the fame manner as fuch teftator would have been, if i. . t * Vid. Com. Iivmg^ Di? Admon. But, it feems, that an executor de /on tort of an executor de/on tort, is not liable for a devaftavit committed by fuch firfl executor, either at common a rom. Di?. law, or by either of the two lafl mentioned Admon. 1.3, itatUteS ", 3 ^ac. Abr, b 2, what 370 OF REMEDIES Book III. « Com. D;g. Admon. F. I Sid. 57. I Anders. 34. * I Mod. 174, »75- c Latch. 160. f 3Bac.Abr.14. Latch. 267. I Anders. 34. 6 Co. 18. b. f Vid. Com. Dig. Diflrefs, A. 2. 3BI. Com. II. What has been ftated in regard to adions againft executors, is, in the main, applicable to admi- niftrators, whether general, or limited. If an adminiftrator durante tninoritate continue in the pof- feflion of the effects after the executor is come of age, he may be fued either by the executor, or by a creditor S But, if fuch adminiftrator adminifler in part, and deliver to the executor, on his coming of age, all the refidue, he cannot be charged by a ftranger ''. If, before the executor attain the age of twenty-one, the adminiftrator waded the aflets, he may be charged on the fpecial matter by the executor ' \ but, fubfequent to that period, he is not liable for the devq/iavit at the fuit of a creditor. The creditor muft refort againft the executor, who is entitled to his remedy againfl the admini-^ flrator ^ By the ftat. ^ Atuu c. 14. S a Icflbr is empow- ered to diftrain, within fix calendar months after a leafe for Hfe, or for years, or at will, is deter- mined, provided his own title or intereft, as well as the tenant's pofleffion, continue at the time of the diflrefs. *■ Bralthwaitc V. Coohfey & al. I H. Bl. Rep. 465. In cafe a lefTee die before the expiration of a term, and his executor continue in poiTeiTioni during the remainder and after the expiration of it, a diflrefs may be taken for rent due for the whole terra ^ ff Ch. XL AGAINST EXECUTORS AT LAW. jyi If an executor become bankrupt, his bankruptcy does not dived him of his legal right of executor- Ihip, nor does the commifTioners affignment afleft the aflets, except in regard to fuch beneficial intereft, as the bankrupt himfelf may be entitled to. But, although a bankrupt executor may flridly be the proper hand to receive the affets, yet, if his affignees be poiTelTed of any part of the pro- perty, the court of chancery w\\\, for the benefit of creditors and legatees, appoint a receiver for the fame 5 or will direct the bankrupt himfelf to be admitted a creditor for what he ihall be indebted to the eflate ; nor is this practice incongruous, as he afls in aider droit : But, to prevent embezzle- ment, the court, on fuch proof, will order the dividends to be paid into the bank, fubjecl to the demands on the teftator's eftate '. So, where A. i Cooke's B.L, a bankrupt, and alfo B. claimed to be executors of Ify'^stoncns. a creditor of A. and a fuit was pending in the lp%^°''^^^^ ecclefiaftical court, in regard to the executorfhip j 2Br0.ch.Rep. the Lord Chancellor permitted B. to prove the debt fupr.^^j. under the commiflion, and direded the dividends to be paid into the bank, to abide the event of the "^^ Bro. Ch. r ' Atp. 1999 Utigauon '*. B b 2 SECT. 372 OF REMEDIES Ijook III. » Mitf.63,64. SEC T. IV. Of remedies againji executors^ and adminijirators in equity. AN executor or adminidrator is alfo, in his reprefentative character, liable to all equitable demands with regard to perfonal property, that exifted againll the deceafed at the time of his death. If, pending a fuit, the defendant die, it fhall be continued by bill of revivor againft his executor % Legatees, or perfons in diflribution, are alfo en- titled to aPArt in a court of equity, their claims ^ A.Bac. Abr. againft the executor or adminiftrator, on the prin- 447-i'Aik.49i. cipie, that equity confiders an executor as a truftee. 575.Prac.Reg, ior the legatee, m reipecl to his legacy, and as 2ci edit. 209, trudee in certain cafes for the next of kin of the Vv^t^iz^' undifpcfed -furpius ^ It alfo regards the admi- 134. ich.ca. niftrator as truftee for the parties in diIlribution% 262. a th, Rep. And trufls are the peculiar objeds of equitable ^''^' cognifance. Thus a bill lies for a perfonal legacy j not. (dv'iSd! O"" ^o^ ^ difcovery, and an account of affets; or for 3aa.C0m.Dig. the diftribution of an inteftate's perfonal eflate ^ (3 D. I.) ' So it lies for the difcovery of ajTets, merely for the « Com. Dig. purpofc of enabling the plaintiif to maintain an (a G.'^sO* adion at law againft an executor % but not till he f ibid.(5B.a.) has denied affets by his plea to the actiou^ An Ch. XI. AGAINST EXECUTORS IN tQUlTY. An executor may be alio called upon in equity, to account for intereft he has made of the teilator's eitate *. 373 ' XI Vin. Abr. 433. in not. And, although, the rule be not invariable, that an executor, in all cafes, fliall pay intercft for money employed in the courfe of his trade j yet if, without any reafonable caufe. he detain it for any length of time from the perfons entiLJed, and ap- ply it to the purpofes of his trade, or even fuifer it to lie idle in his hands, he fliali be fubjecl to the payment of interefl '. And if a will dire6"l the exe- 1/ ^''°* ^^* ^ ^ ^ . l<-<-P- 359- cutor to lend, at the bell; interefl, a fum of money, 1Vef.jun.294. which, at the time of the tefiator's death, is out- Handing at four per cent. , and the executor fuffer it to continue fo, he fliail be perfon-.dly liable to pay five". Nor, if an executor comnound debits "*Bi-o. ch, due from the teflator, or buy them in for iefs than their amount, fliall he be perfonally entitled to the benefit of the compofition : but other creditors, or the legatees, or the party entitled to the furplus, fbali have the advantage of it -. 7/.' Vt^^'' Yet, if an executor lend money on real fecurity, which at that time there was no reafon to fufped', and afterwards fuch fecurity prove bad, he fliall not be accountable for the lofs, any more than he would have been entitled to the produce of it, if it had been fufficient ". So, where A , an execu- * ^ ^' Y"f"^« ' ' 141- 4 Burn tor, paid the affets into the hands of B., his co- -^-^cUL. 42s. executor, with whom the teflator was ufed to keep ^^^''^"^^'2^^- cafh as his banker, on the failure of B. the court , B b 4 held. 374 OF REMEDIES Book III, held, that A. ought n9t to fufFer for having trufted him, whom the teftator trufted in his Hfe-time, y4Burn.EccL and at his death appointed one of his executors ^ jP.Wms. 243. So, although, generally fpeaking, if an execu- tor compound or releafe a debt due to the teftator, he fliall anfwer for the amount, ftill, if he appear to have aded for the benefit of the eftate, he fliall * " ^i";x^^'"- not be charged ^ 43a.;, P.Wm», ° 381. Vid. fupr. ^^^' Formerly an executor could not be compelled of courfe to frrcure a future legacy, on the principle that, Vv'here the teftator had thought fit to tq-. pofe a truft, unlefs fome breach of it were ftiewn, or a tendency to a breach, the court would con- tinue to confide in the fame hand ; for fuch a pur- pofe it was neceftary to fliew mifcondu6l on the ?3P.WmE. paj-j- Qf t}^£ executor, or his infolvency ^ : or. in jj6 II Vim. * . , n u J • 'j Ahr, 4*1^, 417. the caie or an executrix, that ihe nad married a tV'ic.'^Abr. 8. perfon in needy circumftances ''. But, according s Atk 505. tQ tj^g prefent praftice, wherever a legacy is pay- i>zVern zaq. ^ble at a future ptriod, the legatee, without any fuggeftion of an abufe of the truft, or that the fun4 is in danger, has a right to call upon the executor to have it divided from the bulk of the eftate, and 448. 1'lVo. ch. fecured and appropriated for his benefit, as well '^x>^'\^1'd where it is contine;ent, as where it is vefted''. 58. a.-s. 3 hro. i\miuitants are likewife entitled to the fame equity, ch. Rtp. .65. . , , ^ ^ _ V Ambl. 273'. s^Q to compel the executor to let apart a fur- TvRc ieg. ftcient fund for the regular payment of their an- J PAJLW nuities''. •■51. Wms- u Ch. XL AGAINST EXECUTORS IN EQUITY. If two executors or adminiftrators j'dIii in a re- ceipt, one only of whom receives the money, equity has been ftated to adopt this diftindion, that, in fuch cafe, each is liable for the whole " as to cre- ditors, who are entitled to the full benefit of law, although one of fuch perfonal reprefentatives might have given an effedual difcharge ; but, that with refpecl to legatees, or parties claiming diflribution, as they have no legal remedy, one executor or ad- miniftrator fliall not be charged merely by joining in the receipt, when the other has received the money : for the addition of his name is only matter of form, the fubftantial part is the ^a6l of receiving, and is alone regarded in confcience *. But this diflinc- tion between legatees, or parties in diftribution, and creditors, appears to rell on no authority^. The rule is general, that executors, joining in a receipt, (hall all be anfwerable ''. It has, indeed, in fome inltances, been broken in upon ', and the Mafter of the Rolls has denied it to be univer- fally applicable ^^ It feems an exception, if an executor receive the money without the confent of his co-executors, and they afterwards fign the re- ceipt ', 375 e3Bac.Abr.3il f iSalk. 31S. 1 P.Wm,'5.a4i. 1 Eq. Ca. Abr. 398. 2 Vern. 570. t 2 Bro. Ch. Rep. 117. 1 F.Wms.143. in not. 3 Bac. Abr. 31. in not. h 1 P.Wms.Sr. Prec. Ch. 173. % Afk 584. Ambl. 219. 2 Bro. t h. Rep. 116. » iSalk 31?. I P.Wras. 241., I P. Wms. 8j. not. (i). " 3 Bro. Ch. Rep. 94. 1 I P. VVm$. 241. not. X. ^j. oot. I. This, however, is clear, from all the cafes, that, where, by any act done by one executor, any part of the eftate comes to the hands of his co-executor, the former will be anfwerable for the latter, in the fame manner as he would have been for a flranger " i P. Wms, whom he had enabled to receive if". 241.1101.1. Tet, 37^ OF REMEDI^ AGAINST EXECUTOR5 Bo6*III. Yet, a co-executor, who proved, but iiever ai5led, having received a biii by the poll, on. ac- count of the eitate, and trarilrnkted it immediately to the acting executor, was held not to be relpon- » Bp.lchen fible for the adminiftration of the property ". \. Scott, ■' ft Ver.jun.67S. Although one executor admit aflets, an account ■ fliall be decreed againfi: hia co executor, who does » Com. Dig. not admit them ". Chancery, 3 Bro^'ch.Re^)'. ^^' ^^^^ executors be decreed to pay inter eft on 4^8. account of a breach of truft, they are liable to p Frac. Reg. cofts of courfe P. If the executors have aded iVcf.'jun.^°94. fi^audulently, the court will decree colls againd them, although the will direct, that their expences ** JT; ^^"' ^all be allowed out of the teftator's eftate 'J. «d edit. 15c, l3i.2Atk.126. But executors (hall have their cods, although they make a claim, and fail, if it were merely a r Prac. Hcg. fubmiffion of the point for the opinion ot the ad edit. 152. court''' I Vcf. jun. 205, SECT. V. Of remedies againjl executors, and admlnljlrators In the ecclcf.afiical court, LEGATEES and the next of kin may proceed againlt the executor or adminiftrator in the eccle- fiallical court. Ihat court has not only jurifdic- tioii Ch. XI. IN THE ECCLESIASTICAL COU'RT. «-^ oil tion over the probate of wills, and the granting of adminilfrations, but has alfo, as incident to the fame, authority to enforce-the payment of legacies % 4^.^381 Com and, according to the ftatute, the diftribution of an 98- inteflate's effects. In reipe6t to legacies:, the cog- nifance of them in forme-r times belonged exclu- fiveiy to that judicature. The court of chancery, till Lord Nottingham extended the fyilem of equi- table jurifprudence, adminiftered no relief to le- gatees ^. In regard alfo to diftribution, equicy, as ''.t Term Rep. the a£t of parliament contains no negative words, '^'' has a concurrent jurifdiction with the ordinary, and in both cafes, as being armed with larger powers, « yj^j ^ponbl affords a more effeftual reliefs 'd edit. 414. not. (d). The fpiritual jurifdidion extends to legacies only of perfonal property ; therefore, if land is de- vifed to be fold for the payment of legacies, they can be fued for only in a court of equity, becaufe they arife out of the real eftate"^. So, it feems, that if *" ^Btc. Abr. , ' ' 44'j-lJyer 151, a legatee take a bona from the executor for payment ^'^'n^- i^o. of the legacy, and afterwards fue him in the fpiritual 364. Cro. Car. court for the fame, a prohibition will be granted ; ^g'^.fgJJ'^^'^' for, by taking the obligation, the nature of thede- 50- mand is changed, and becomes a debt recoverable in the temporal courts ^. . « Yclv. 3s, 2 Vern. 31. Sed Dodde- As a court of equity and the fpiritual court ""idge j. contr. ,.,(.. . ^ WoW. Rep. have m thefe pomts a concurrent jurifdiftion, which 160. ever of them has firft poifeffion of the caufe, has f ^ gac. Abr. a right to proceed^ But, where it appears, that the 447-Toth.ii4. ,, 1 . . rr :» Free. Ch. 548, ordinary cannot adminifter complete juftice, equity without 378 OF REMEDIES AGAINST EXECUTORS Book III. without regard to fiich priority will interpofe. As, where a hulband fues in the fpiritual court for a legacy bequeathed to the wife, the court of chancery will grant an injunction to ftay the proceedings, « s Fonbl. fmce the ecclefiaftical judge has no authority to com- j Atk^'sl(u' P^^ 3, fettlement ^ . So, a legacy given to an infant is aAtic.4ao- more properly cognizable in equity, fmce that ju- 548. rifdiaion can alone lecure tne money tor the child s h I Vcrn. a6. benefit *". J Atk. 491' In cafe a legatee, or the next of kin, eleft to fue in the fpiritual court, the executor or adminiftra- tor mud there exhibit an inventory of the property, if he has not done fo before, and bring in an ac- i 4 Burn Eccl. COUlit '. L. 4iS- Of the nature of an inventory I have already iVid.fupr. treated''. It is to contain a full, true, and perfed ^^ * fchedule of the deceafed's effeds. The account is 1 2 Atk. 252. to flate in what manner they have been difpofed of K Neither an executor nor an adminiftrator can m Com. Dig. be cited by the ordinary ex officio to account "'. iSaTk.315,316. The executor, we have feen, is bound by his oath 2 Atk. 153. ^^ make an inventory of the perfonal eflate, and exhibit the fame into the regiftry of the fpiritual court at the time afligned him for that purpofe, and render a juft account, when lavv'fully required, that is to fay at the fuit of a legatee ; and in fuch " ?,^''>\^V 3*^' cafe he is bound not only to produce an account, Vid. alfo 1 • r • Coy.'p. J4I. but alfo to prove the items ot it ". The 379 tn. XI". IN THE ECCLESIASTICAL COURT. The payment of fums under forty fhillings fliall be proved merely by his oath, if there appear no fraud by dividing greater fums into lefs. Of the pay- ment of fums to a higher amount vouchers mud alfo be exhibited". The adverfe party fhall be at ■4BurnEccI, liberty to difprovc fuch account. If it be falfe, ougiit. 347, the executor fhall be liable to the penalties of per- >i-^- jury "• «4BiirnEccl, ■i J ' L. 427. Ought. 346. After the death of an executor fums under forty fliillings (liall not be allowed on the oath of his re- prefentative ; for fuch payments can be fubllan- tiated only by him who made them ^. p 4 Barn Ecd. L. 427. Ought. 347' In regard to the adminiflrator before the ftatute of diflributions, according to the condition of the adminillration bond, he alfo was bound to exhibit an inventory, and render an account when required. But, purfuant to that ftatute, the adminillrator, we may remember, enters into a bond with two or more fureties, conditioned for his exhibiting an inventory of the effects, and an account of the fame, at the refpeftive times fpecified. Therefore, without ci- tation or fuit, he ought, in ftridnefs to appear oa the day, and produce his account in court. But, in that cafe, it is neither verified by oath, nor liable to be examined. If, however, a party ia diftribution, who is in the nature of a legatee by ftatute, and therefore entitled to an account, fhall come in and controvert it : it muft be fworn to, and is fubjed to invcfligation ; w^hen the proceedings Ihall be the fame as ift the cafe of an executor **. '^ ^^^^^^ 215* _,, 316. (^ Thus 38. • VkI. 4 Burn 4z6. 01" REMEDIES AGAINST EXFXUTORS Boor lit Thus it appears, that the ftat. i Jac. i. c. 17.% which provide"?, that no adminiftrator fliall be cited according to the flatute of difiributions to rendei* an account of the perfona! eflate of his inteftate otherwife than by inventory, unlcfs at the inftanee or profecution- of fome perfon in behalf of a minor, or having a demand out of fuch petfonal eftate, as a creditor, or next of kin, nor be compellable to ac* count before the ordinary ; had, in truth, no « I Salk. 315, operation, as fuch was the law before \ J16. All the legatees^ or parties in dlftribution, are to be cited to appear at the making of the account ; for it fiiall not be, conclufive on fuch as fhall be T ^ '^'f^^^r}' abfent, and have not beeil cited "-. An executor or p. 6. f. 20. adminiftrator, therefore, Vv/hen he is called upon by any one party to account, fl^ould cite the legatees^ or next of kin in fpccial, and ail others in general, h?iving, or pretending to have, an intereft, to be L^frSuSt' P^e^ei^-^3 if they think fit, atthepaffing of the fame ; 3J4> 3J5> 3i6. and then, on their appearance, or contumacy in not ^ 4. Bac. Abr. appearing, the judge Ihall proceed ^, Abr. 298,399. Hob. la. Akhouorh the fpiritual court have, as incident to jz Co. 65. o ' Hetlcy,87. the' jurifdidion of wills, the jurifdiclion alfo of Sid. 161. ' legacies \ yet, if a temporal matter be pleaded in bar JCroEiiz. 88. of an ecclefiaftical claim, they muft proceed ac* 158 i^*-^^* cording to the common laW. Therefore, if pay- Ventr. -gi. ment be pleaded in bar of a leg-acy, and there be 3 Mod. i.?.i,. . . I Ld.j To all other perfons, "i under 20I. - - J Of or above 20I. and un- J dcr lool. - - J Of lOol. and - - I every further lool.tothe amount of 300I. each lOol. and the next lOol. to the a- mount of 400I. and every further lool. over and above 4C0L each lool. Statutes. Single 026 Single 050 Single o 20 o o 26 Add' 026 Add' 050) 6 5 o J o 20 o / Add' o 20 oj Ad. 20s. p. cent, ditto' o 20 o 026 050 1 o o 050 o 10 o 200 il.p.cent. 2 00 2l.p.ccnt. 20 G. 3. c. 28. 20 G. 3. 23 G. 3. 20 G. 3. 23 G. 3. 20 G. 3. 23 G. 3. c. 2S. C.58. C.28. c. 58. c.28. c.58. 23 G. 3. c.58. 29 G. 3. 29 G. 3. c.5r. c.^r. 56 Geo. 3. c. 52. cnaits, that Legacies left by perfons who may have died pre'vious to A.ril 27th, 17(^,6, fliould only remain fubjed: to the pre- ceding duties ; from whenc* (inclufive) the following Duties fnould commence, and wholly exempts legacies bequeathed ; for the benefit of hufband— wife — children, or grand-children, and the royal family; lega- cies of any dcfciiption, under *oi. and legacies out of perfonal eftate, or clear refidue tiiereof, the clear perfonal eftate being under locl. value. c 3 0.y SB€ APPENDlXc O.v LEGJCIES, OR SHARES of PERSON JL ESTJTE. Legacy of 20I. or up- wards given out of Per- fonal Eftate, and alfo upon the clear rcfidue of Pevfonal Eilate, and every part thereof, whe- ther accruing by virtue of a will or on an intef- ! tacy, and fuch refidue j is of the vahie of 100!. or upwards) — given or | paffing to Brother or [ Sifter of the deceafed or | iheirDefcendants — each lopl. greater pr lefs fum in proportion Given to Uncle or Aunt or their Defcendants ex parte paternd vel maternd GreatUncle oi Great Aunt or their Defcendants ex parte paternd 'vel mater nd Any other degree ot collateral Confanguinity than above defcribed, or any ft ranger in blood to the deceafed * AflefTmenta. Single 2I. p. cent. Single 3I. p. cent. Single 4I. p. cent. Single 61. p. cent. Total Duty. Statutes. zl.p.ct. > 36 G. 3. C.52' 3l.p.ct. 4l.p.ct. 61.p.ct. * LEGACIES of ANNUITIES of whatever defcription, whether charg- ed on pe'rfonal or real eftate, are liable ta the fame duties : fuch duties to be paid at four equal annual payments : the fr/i of which payments to be made on completing the p.iyment of the firft year's annuity, and the others in like manner fucceflively: unle/s the annuitant fliall die in the interim of fuch four years, then proportionably according to the number of payments made. The value of fuch annuities to be calculated ac- cording to the tables in the fchcdule of the aft 36 G. 3. c. 52. Duty an LEGACIES . APPENDIX. 387 LEGACIES given to PURCHASE annuities, to be calculated on the fiims iiccefTary to purchafe them ; and duty on legacie's the value of which can only be afcertained by application of. the allotted fund, to be charged on tht moneys?, applied: fl'rt/; on legacies to be enjoyed by different pcrfons in fucceffion of the fame degree of kindred, and chargeable with the fame iMte of duty, to be charged and paid as in the cafe of a legacy to one perfon ; but if fuch perfons are of different degrees of kindred, and chaj-geab'.e with different rates of duty, then all perfons becoming entitled for life only, or other temporary intereft, to be chargeable with the duty in the fame manner as if bequeathed by way of annuity, and to be paid when they fliall fo refpedtivcly become entitled, by equal portions, during the aforefaid term of four years; and any other partial interefts to be charged in like manner. — Plate, furniture, or other tilings not yielding income, to be enjoyed in kind by different perfons in fucceffion, not to be chargeable while fo enjoyed in kind with any duty, until in poffeffion of perfons having power to difpofe thereof. Duty on legacies enjoyed in fucceffion, to be charged as fuch, vvh'ether taken under wills or by in- teftacy. Duty on legacies in joint tenancy, to be paid in proportion to the intereft of the parties. Duty on legacies fubjeft to contingencies, to be charged as for abfolute bcqnefts (unlifs ciiargeable as annuities). Le- gacies fubjefted ti> power of appointmerit, to be charged with duty as property given to perfons in fucceffion, or abfolutely according to the conftrudlion and limitations of fuch power. Money, or perlbnal eftate, direded to purchafe real eftate, to be charged as pcrfonal eftate until ap- plied in manner before mentioned ; but no duty to accrue after the fame /hall have b:;en fo applied. Eftates fur auter ivV, applicable as perfonal eftatcs, to be charged as fuch. Duty on property not reduced into mo- ney, to be charged agreeably to a valuation to be made by executors or iidminiftratois; but if the commiiiioners of ftamps are diffatisfied there- wfth, then they are themfelves to caufe a valuation to be made, and then in cafe the fame fliall be objected to by executors, &c. an appeal to be made to the laud tax commiffioners, whofe judgment fliall be final — all cxpences to be borne by the miftaken party. Money left to pay duty, not chargeable as a legacy. Duty on legacies not fatisfied in money, to be paid according to the value of the fatisfadion. But it at the end of tiMu years it iiiall appear that it will be difficult tq afceitain tlie rejidue of the perfonal eftate, the duty may be compounded jor — with many other re- gulations and diredions as by the aft 36 G. 3. c. ja. Printed forms of receipts to be procured and duties paid at the Legacy Receipt Office, Stamp Off. e, Sotntrfet Place, or of or to any diftributor of ftamps in the country. Duties to be accounted lor and pu:d by executors or adminiftrators on retaining or paying legacies, ar.d to be deduced and retained by them C c 4 cut 388 A P P £ N D I X. out of fuel) legacies, ?.nd to be a deM from ihem to his majeRy: but ck- editors pajing legacies nuiihi:ut dedud^ant: the duty, butb legate^ and exc» tutor accountable for the fame. Receipts to be fianptd within twenty- one days after date, or within three montlis, on payment of duty and lol. percent, pcnrilty. And a penalty of lol. jcr ant. for paying or re- ccivxg legacies without flampt receipts — and nejilccline to pay duty within fourteen days aittr the lame ought to have bttn paid as aiorefaid, to forfeit treble the value of the duty. Penalty of 500 1. for altering the receipts... [Heraud''i Stamp Table, 19, 20.^ INDEX. l^ INDEX; ACCOUNT, ?ACE bill in equity for, of aflets - - - 37^ in the fpiritnal court at the fuit of k gatees, or par- ties in dillribution _ . . . ^-jS at the fuit of a creditor - - - 381 ACTION, i^ff Remedies. ADMINISTRATION, executor being unknown or concealed - - 46 origin of - - - - 54» 55^ S^ of hufband's right to _ - - 57, 58. 294. how controlled or varied - - --5^' 59 caterorum - - - - "59 ' grant of, to widow or next of kin - - 60 of part to widow and part to next of kin - 60 order in which kindred are entitled to - - 63 half blood equally admiiTible to - - - 64 when committed to feme covert, and how - - 64 how granted, if wife be next of kin and a minor 6^ cumfiJIameTito annexo where executor refufes - 65 not pranted, till executor renounces, or fails to ap- pear - . - - - " . - ^r or, if feveral executors, till they all renounce, 01; fall to appear - - . - - " ^5 who incapable of taking " - - 66 feme covert competent to take - - ' - 6($; alien 39a INDEX. ADMINISTRATION, page alien friend competent to take - . - - 66 though only oT the half blocd - - 66 analogy of, to probates - - - 66y 67 a party generally incapable of acting before grant of - - . - - 67 may file a bill in chancery before - - 68 not commence an action at law before 68 penalty for adting and omitting to take out for fix months - - - - - 68 when letters of, ifTue - - - .68 oath on taking out - - - - 68 bond, condition of the fame - - - 69 when once granted not to be committed to another > during the life of grantee - - - 70 fpecial - - - - ^ . 'JO cum, tejlammto annexo - - - " 7^ grant of fuch to refiduary legatee, or legatees -71 durante 7ninoritdte - - - -7^'72>73 when it Ihall be granted, and how - - 71 when not _ - _ _ -j^, 7^ after fuch grant of, when receiver appointed 7^ pendente lite - - . - "74 receiver not appointed by chancery after fuch 7 5 during incapacity - - - - 75 durante abjentid - - - ' ' 15 to a creditor - - - - "75" to fuch perfon as the ordinary fliall approve - 76, 77 limited in regard to time - - - - 77 or to property - - - - 77 not to be twice granted in refpeft to one thing - 77 in cafe of feveral grants of, grantees liable to be fued as one perfon - - - - 77 on condition - - - " " 77 to appointee of the crown of the effeils of a baf- tard - - - - - 7S- 306 to attorney - - - - ' 79 of the effects of feamen and marines - "79 on death of adrainlftrator or executor inteftate - 84 grant of to icveral furvives - - - 84. 324. immediate INDEX, 391 fliDMJNISTRATION, face immediate - - - - ~ ^J on death of patty entitled to adminiftration - 85 in cafe of death of hufband before he takes out ad- miniftration to wife - ' - - S6. 167 efd bonis von - - - - - 86 to refiduary legatee - - - - 86 immediate or de bonis non, in what cafes - 86, 87 9^ or voidable - " , " " 9^- ^3^ or voidable in cafe of a fuit by citation or . on appeal - - - 91^, 97, 98, 99 payment of debt to an adminillrator under grant of, void or voidable, good - - "97 cffeft of grant of, to executor dc-for. tort - 2S8, 289 grant of, limited in a general form - - 321 or reftriftive - - - - 321 cffcfl of fuch vefpe6>.ive grants of - ' - - 322 8 ' ceafing, 392 INDEX. ADMINISTRATION, jAcfe ceafing, effeft of, pending a£llon agalnil fpccial ad- miniflrator - - . _ . ^23 ADMINISTRATOR, intereft of . - - - - 187 offpeclal - - - - 187 of married woman - - - 187 of joint - - - - 188 of de bonis non - - - - 1 89 powers of, limited - - - 321 of, durante minorifate, as diflinguifhed from executor durenle m'lnoritate - - 322 of his keeping the goods after executor comes of age - - "74 ■powers of, durarile abj'entia - - '3^3 of, pendente lite - - - 3^3 of joint - - 84. 323, 324 as diHinguifhed from co-executors 323, 324 right of joint, furvivcs - - 84. 324 ADVANCEMENT. .S« Distribution. APPEALS, in regard to probates and adminiftrations 48, 49. 67 APPRAISEMENT, Commiffion of. See Lvtentory. ASSETS, ' legal and perfonal what - - - 3^5 legal and real what - - 325* ft feq. equitable what - - - 327 — 331 marfhalling - - - - 331 in favour of creditors - - 33^'~334 of legatees - - - 334 how the rulesi In regard to marihalling rc- flrided - - - 334—336 B. BAIL. See Dkvastavit. Remedies, BANKRUPT, See Executor— Remedies. 3 CAVEATS INDEX. 393 CAVEATS .... CODICIL, definition of . - relative to land . . - to perfonal eflate written - ... nuncupative _ . - « revocation of will by - COLLIGENDUM, grant of letters ad - ^ efFecl thereof - . ^ collefting the cffedls by executor perfon appointed by court of equity to colleft CONSANGUINITY, lineal - - - . how calculated collateral - - . . how calculated - - - COSTS, PAGB 47, 4« - 4 - 4 - 4 - 4 - 4 - 9 - 78 - 78 - 198 3H - 60 60, 61 - 61 - 62 v/hen executor plaintiff at law Hiall not pay when he fhall - - - . defendant executor liable to at law when liable to in equity when not - _ . . executor entitled to in the fpiritual court when party praying an account in that court liable to ----- . - 349 - 349 - 366 - 37<^ - 376 382 382 DEBTS, D. payment of, by executor d\ie to the crown by record due to the crown by fpeciaky - 201 - 202 - 202 other 394 INDEX. DEBTS, PAGE other due to the crown - - - 202, 203 affigned to the king > - . . 203 certain, by ftatute - - - . 204 of record - - . - _ 204 judgments - - - . 204, et feq. ilatutes, and recognizances ... 205 judgment againft executor - 207, 208, 209 >vrit of error by executor on judgment - - 209 efFeft thereof ... 209 decree in equity - - - 211, 212 executor prote£led in his obedience thereto 2 1 1 recognizance - - - -212, 215 ftatute merchant - - - - *I3 ftatute ttaple - - - - 214 recognizance in the nature of a ftatute flaple 214,215, ftatutes and recognizances not yet due - - 216 or contingent - - - 3l6 other inferior of record - - - 218 by fpecialty - - - - 218. 221 rent - - - - -218, et feq' by fpecialty when contingent - - - 222 voluntary bond - - - . - 222 bond on an ufurious contract ... 223 or tx turpi call fa - - . - 223 joint and fevcral - - - 223 covenant - - - - _ 223, 224 articles of agreement ... 223, 224 fimple contrad - - - . . 224 creditor's gaining priority by legal procefs - 225 1 by equitable procefs - - - 226 executor's power of preferring one creditor of equal degree to another - - - 225, et feq, not controlled in the cxercife of it in equity 227 his right of giving preference not divefted by a mere demand - . - 227 how bound in confcience to pay, of equal degree - - - - - 228 crecvtor's right to retain his own - . - 230 in INDEX. DEBTS, PAGE in what cafes - - - 231, et feq. a creditor executor may fue his co-executors - 233 executor's aflent to a relcafe by will of - - 241 debtor being executor - - - - 272 debtor being executor durante m'lmritate - - 274. retainer for, by hnfband of executrix - - 281 executrix's hufband being debtor - - - 283 executor not to retain in prejudice of his co-execu- tor - - - - - - 283 executor de Jon tort in general cannot retain - 287 executor de Jon tort under the llatute may - 287 retainer for, by limited adminillrator - -321 if executor compound, due from the tellator he fliall not- be entitled to the benefit - - - 373 executor generally liable for compounding or re- leafing, due to the teftator j — when not - - 374, DELEGATES, court of, - , - - - _ . 4c) DEVASTAVIT, by hufband of executrix - - - 2'8i. 342 by executrix before marriage - - - 2S1. 342 by executrix's marrying debtor - - - 282 by afts of abufe - - - 192. 223. ^537 of negligence - - - - 338 what fliall not amount to - - - 340, 341 may be proved under commiffion of a bankrupt ex- ecutor - - - - _ _ 342 by one of feveral executors . - . ^42 executor of executor anfwerable for, by the lat- ter - - - - - 342. 368 executor may be held to bail in cafe of - - 366 one executor not liable for the, of co-executor - 568 executor de fon tort chargeable for - - 369 executor of executor de Jon tort chargeable for the, of the latter - - - - - 369 executor de fon tort of executor de fon tort not for the, of the latter - - - - 3% adminiftrator 395 5:^6 INDEX. DEVASTAVIT, pack adminiftrator duranti m'lnor'ttale liable for, to the ex- ecutor on his coming of age - - -370 not after that period to a creditor - 370 DEVISEE, of land, v/hat chattels go to - ■? - ^57 entitled to emblements - - _ ijj , of gcods entitled to embleiients in prefereuce to of land - - - - - - ^57 fpecialty creditor may refort againfl:, without fuing the executor of the dtbtor - ■ - - 327 DISTRIBUTION, under the ffatutc - - , - - 290 provifjons of the fame - - 291 — 294 by vii tue thereof where inteftate left wife and chil- dren, or reprefentatives of children - - 294 advancement within the ftatutc -. ,- zgy of bringing into hotchpot - - 297 what fnall not be fuch advancement - 300 borough englifh lands defcendcd not 301 where w'idcw and no children, nor legal reprefenta- tives of children . - _ . 302 where children and no widow - - - 302 where neither widow nor children . _ . ^02 among next of kin - - , - 302 where any of the children die inteftatc without wife or children leaving a mother - - - 302 where a child dies inteftate without iflue leaving a wife, brothers, and fiftcrs, or children of a deceafed brother or filler, and a mother - - - 303 h6w far reprefentation among collaterals is admitted - - - - 302, 303 where there are grand-father and brother - 304 where there arc grand-father and uncle ' - - 304 where there are grand-father by the father's fide, and grand-mother by the mother's - - 304 where there are uncles and nephews, aunts and ^ nieces - - ... 304, 305 INDEX. DISTRIBUTION, . pacb where grand-da uolitor of a fiftcr, rtnd daughter of an aunt .... ^oj dillributive fliare veiled on the death of the intellate .... ^05 Hatute in the nature of a ^'giflative will 305 affinity, except in the cafe of a Vi-ife, no title to a 306 of the efFefts of a ballard inteltate without wife or child ---._, 306 according to the law of the country where inteftate was refident - ... ^06, 307 DISTRIBUTION by the cuftom of London - .307 where widow and children - - 30S, 309 where only widow or only children - 308. 310 of dead man's part - . _ . 309 pofthumous child entitled to by the cuftom - 309 grand-children not - . . 309 children entitled to though not born in the city, nor father refident there at his death - 310" widow's chamber - - - - S'O when barred of her cndomary fliare * 3 i '• when the orphanage (hare veils, when not - - 312 advancement by the cuflom - - " 3I» bringing the fame into hotchpot - - - 3 1 2 how brought in - - - - 313 where advancement exceeds the fhare by the cuftom 313 nature of fuch advancement complete or partial 3 14 evidence of the fame - • - * 3^5 different cafes^of advancement - - -3^^ nature of the interefl In an orphanage part * 3^7 how claim to the fame may be waived - 317, 318 releafe of the fame by hufband of freeman's daugh- ter an infant, or his covenant to releafe it -317 cfFe6^ thereof - - - - -317 DISTRIBUTION by the cuftom of York - .318 widow's chamber and ornaments - - - 318 when child's filial portion is veiled - * 3^9 advancement by the cuilom - - - 3 9 D d fuch 397 39S INDEX. DISTRIBUTION, * tag^ fuch cuftom docs not attach where inteflate notrc- fident in the province at his death - - 320 in rcfpefl of Tuch cuftom iramaterial where his eftate is fituatcd - - - - - 320 wh.ere cullom of London fiiall controul that of York - - - - - - 320 where inteftate leaves a widow and three fona , - 320 DISTPJBUTION by the Cullom of Wales - - 320 DONATIO mortis caufa, what - - - - - - 181 what not - - - - - 182, 183 not proved with the will - - ■• - 184 executor's affcnt to, unncccfTary - - - 184, not good again II creditors - - - 184 E, SQITITY. 5^? Remedies. when wife's next of kin truftees for huftand's repre- fentativcs in - - - - 86. 167, i6t when hufband's reprefentativts entitled to wife's ehofes in HcXion In - - - 171, 172 how far to wife'& fortune In chancery -173 ■where a wife entitled to gifts to her feparate ufc in - - - - - 174, 175, 176 where not - '■ - - - 177 executor cannot plead decree in, yet is protected In his obedience to the fame - - 311. 22(> will not interpofe in fa-:'our of one creditor where ex- ecutor has confelfed judgment to another - 227 in what cafe will not compel a creditor fulng both at law and in equity to make his eleftion - 227 executor may retain for hia d^;bt both at law and ia 232 will not decree payment of a wife's legacy to a huf- band without a fettlement - - - *5 1 or unlefs wife confcnt in court - " 251 will compel a legatee to refund - - - 25 a of executor cf a d€C€afed partner - - 357 whey- INDEX. \99 EQ^TITV, PACK when executor fhall be truftee in, of the rcfidue un- difp ofed of for the next of kin 275 — 278. 2 S3-Z85 EXECITTOR, definition of - - - - - I i wlio may be - - - - - 1 1 the king _ _ - - - 1 1 corporations . - - - 11, It infant _ . - . - 17 cliild unborn . . - - 12 feme covert _ - - - 12 alien friend ... - 12 outlaw - » _ - 13 perfon attaintid ... - 12 villein _ - - . -> 12 party infolvcnt - . - - 13 what Roman catholics - ^3 who not. Party excommunicated - 13 what Papifts - 13 d<;nier of the Trinity - 13 ' of the fcriptures - H perfons not having qualified for offices - H alien enemy _ - . - '4 perfons under mental difability - if appoii ;itment of - - »4 exprefs _ - - - - 15 implied - - - . - - 15 r.bfohite - - - 15 qualified _ . - - - 16 of joint executors - 16 ofRcc of, not affignable . - . - 20 may be refufed, and how - 20 rcfufal of by a bifliop - 21 refufal of in perfon - 21 oath thereupon - 21 refufal of by proxy - 21 . mnft be entire - 21 effccl of - - - - 22 Dd 2 when 400 INDEX. EXECUTOR, PA(?E when refufal may be retra£lcd, when not - 65 acceptance of the office of . - - 22 effeft thereof - - - - 22 what acls are an acceptance - - - 22 what not - - - - - 22 refufal of the office of by feveral executors - - 23 by fome and not by others - - - 23 eiTed thereof - - - 23. 44 executor of - - - " "44 executor of furviving co-executor - - - 44, furviving co-executor dying intcflate - "44 intereft of, or adminiftrator in the property lOl, et fcq> 37> different fpecies of fuch property - - 104 intcrcil of in chattels real - - - " ^©5 what fo denominated * - 105, et feq. when they relate to incorporeal heredita- ments - - - - -III in chattels perfonal - ^ - lia animate - - - --112 vegetable - - - - -1144 corn and other emblements 115. 149. 158 i6t inanimate - - 115. 152. 154. i6» in property in the funds - - ' ^^S in the avoidance of a church - - 116 jn the perfon of a debtor - - - 1 16 in a prifoner - - - -116 in a negro fervant - - - - 116 in an apprentice - - - 1 16 in litei'ary property - - -116 in a patent for an invention - - 116, 117 in a caroome - - - " ? 1 7 allowance to bankrupt furvives to his - 356 •«vhen the intered in the property is veiled in - n? when not - - - - -118 interett of In deeds and writings relative to perfonal €ftate - , . - - ii« intcreft INDEX. 401 EXECUTOR, PAGE interefl: of, of pawnee in writings pa-vVncl though relative to laud - - - " '47 intereft of, in tl'.e coffin. Sec. - - - ii8 in chattels perfonal changed in his hands into chattels real, and "y/V^ "y^r/a - - 119 Intereft of in cho/cs in aftion where the caufe of ac- tion accrued before the teftator's death 120, etfe^- In equitable claims fubfilling before - 122 intereft of In clw/es in action when the caufe of ac- tion accrued after - - - - 122 in equitable claims arifing after' - - 124 ■ intereft of, by condition - - - ' ^^S in things in pL'dge - - - 126. 200 Intereft of, by remainder - - - - 126 or increafe - - - " '^7 Intereft of, in a trade - - - 128. 356 intereft of, by affignment - - - 128 by limitation of chattels real - - 130, 131 of legacies - - 151, 132 of inttrefts arifing out of land, as por- tions - - - i32» 133 by eleftion - - - - ^33 right of, to rent in what cafes - - - 136 to mortgages - - - H®' ^^ f^i' how effedls he takes as fuch, may become his own - - - - - 185, 186 intereft of married woman executrix - - 187 of joint executors - - - - loo of executor of - - - - 189 the burial of the deceafed by - - - 191 the colleaingofthe effeasby - - 126. 19S. 200 powers of, for that piirpofe . - - 198, 199 the regiftering of probate at the bank by, and tranf- fer of ftock - ' - - - - ^99 redeeming pledges by - - - 126. 200 carrying on trade by - - - 1 28, 356 (Jifoofal of teftator's ftock in trade by - - 35^ D d 3 v.hati , Jl02 I N D E X. EXECUTOR, «AcsE what acls niallcondltutc an executor a tfader, what not - - - , - - 356 infant incompetent to acl - - 12, 279. 350 acls of an, durante minorltate - - - 280 dillinguiflied from an adminiftrator durante piinoritate - - - - $2 2 afts of a married woman executrix - - 280, 281 how reftralned when the hnfbund is abroad z8i ads of co-executors - 282. 342. 367. 375, 376 as diftingiiiflied from joint adminiftrators 323* 324 power of a furviving co-executor ' - - - 285 of a mediate executor - - 285. 342 when refidue undifpofed of fhall go to, wlien not 275 — 278. 282 when to co-executors, when not - 283 — 285 EXECUTdR de foil tort. 5 <}J"l' 4o6 INDEX. LEGACY, PAdB when cumulative, when not . - . 261 — 263 when in fatibfadion of a debt, when not - 263 — 265 abatement of, general or fpecific - 265, 266. 271 refunding of, in what cafes, in what not 267, 268. 271 payment of to refiduary legatee - - - 268 executor's afl'ent to his own - - - 269 exprefs - - - - - 269 implied - - - - 269 — 271 to executor for his trouble - - - 271 when debt of executor a fpecific, bequefl to him, when not . - _ . 272 — 274. fpecific, to hufband and wife joint executors - 282 one of feveral executors may alfent to - - 283 no adlion lies againlt an executor for - - 366 executor may be called upon to fecure a - - 374 LEGATEES, who may not be - - - - '234 traitors ----- ibid, perfons not having qualified for offices - ibid, pevfons denying the Trinity - - - ibid, or the fcriptures - - - ibid, artificers going out of the kingdom, or ex- ercifing their trades in foreign parts and not returning within fix pipnths after due notice - - - - - 23^ where executors are - - - - 269 where, may fue in chancery and in the ecclefiaftlcal court at the fame time - - - - 382 N. NOTICE, of judgments - 2IO of docquetting - - - - 210 of judgments in inferior courts of record - -210 of a decree in equity - - - -211 9.f INDEX. NOTICE, PACK of recognizances, ftatutes, and other inferior debts of record - - •• - - 2 1 S of debts by fpeciaky - . . 228, 229 PARAPHERNALIA. 6"^^ Husband and Wm-e. what - - - - - 178, etf'^q- of marfhaUing alTets in favour of claim to - - 335 PROBATE, afts of an executor before - - - 24 what actions he may commence before - "24 what aflions he may maintain before - "25 executor liable to be fued before - - - 26 relation of - - - - - - 25 death of executor before - - - - 26 efl"e6t of, by limited executor in regard to fubfe- quent executor - - - - 26 jurifdiftion of granting - - - - 27 by courts baron - - - "27 by mayors of boroughs - - - 27 by the ordinary or metropolitan - - 28 of hona notabUla, what fiiall be 28. 3 ', 32 of the amount of - - - 30 debts bona tiotabUla - "3^ how confidered, when by fpecialty 31 when by fnnple contradl - 3 i of bona notab'illa In England and Ire- land - - - - 29 what ill all not be bona notabilia - 32 when void, when voidable - - - - 30 of will, when proved in the common form, and how - - - "32 when per teJIeSf and how - 32, 33 how will and codicil in writing proved 33, 34 oath on taking - - .- - "34 what is Ilyled fo - - - - - 34 of 407 4o8. I N D E X. rjlOBATE, ?A8t of nuncupative wills - - - - 3S of the wills of feainen and marines - - * 3^ where executor is intirm or at a diUance in England, or foreign parts - - - "41 of citing executor to prove - "4^ effeft of his failure to appear - "41 penalty for his acting and negle£ling to prove williin lix months - - " 4^ ordinary bound to grant - - . - '"42 compellable by mandamus - - " 4^ what he niay return - - 42 may a6t by his official - - - 42 power of granting, pcrfonal - - - 42 when granted by the dean and cliapter - "43 of a biflioj)'s will - - - ■.- "43 double - - - - - - 43 where feveral executors with diftinft powers - 43 of will of a married woman - - "43 when limited - - - " " 43 new by executor of executor not necefiary - - 44 by furviving executor having reftifed during the lives of his co-executors - - "44 of wills of perfonal eftate only - - "45 of a mixed nature - ■_ - - 4^ fiot to be granted of wills refpedling lands merely 45 of a will with refervation as to a legacy - "45 of will of a party long abfent - - - 45 of will loft - - ? - - 46' of will illegible by accident - - - 46 how a will proved in Scotland is proved here 46 hoWj if in Ireland - - - - 46 how, if in Eaft or Weft Indies - - 46 grant of, by judge of probate in the plantations after fuch grant here - - - - 47 of a will made abroad difpofing of effefls here - 47 - of effeds abroad accordincj to the cuftom of the country, fufficient - - - " 47 pf will in a foreij^n language r - - 47 of INDEX. PROBATE, of revocation of .... .g of appeals In regard to - . . 48,49 when affirmed on appeal, cnufe fent back - - ro granted dc novo by court of appeal, when fentence reverfcd - - - - . cffcd of - - - - . . witliin what lime will proved in the common form may be difputed - - . I . within what time a will formally proved wnrevoked, not to be contradi6ttd - - - feal of ordinary may be fliewii to be forged or that there were bona iiotah'iUa payment of debt to an executor under, of a foro-ed will good - - - pradtice not to try forgery of a will while litigating in t{ie fpiritual court - - _ . payment of money under, of will of a living perfon void -----. of lofs of - ' - how probate may be proved - . - iffue taken on, triable by a jury - - - effed of revocation of - - of regiftering, at the bank 4O9 50 St 5f 52 5^ 52 52 52 ' SI 199 R. REMAINDER- MAN, what ctiattels go to - - .158, et feq. not entitled to emblements - - - 15S. 16 1 right of, to heir-looms - - - - 162 REMEDIES for executor or adminiflrator at law - - 343 atlion by, where caufe of arofe in tcllator's life- time _ _ . I2Q. 342 in what cafes not maintainable - 122. 347 where caufe of arofe after teftator's death 122 347 * executor 4^0 T N D E X. REMEDIES, ?AdB executor may fue in court of confcience - - 3^7 executor may hold to bail, on what affidavit - 349 adlion not maintainable by infant executor - 350 hud^and of executrix cannot fue without her - 35 1 aflion by executor durante m'mor'itate - - ZS^ co-executors muft all join in an atStlon - -351 of their joining where infant is co-executor - 351 in aftion by co-executors of fummons and feverance 351 where on judgment recovered by two executors, they pray different writs of execution - 352 a6tions by executor of executor - - 352 aftion by admtniftrator > _ . ^52 by fpecial adminiflrators - - 352, 353 fclre facias by executor on his coming of age, on judgment recovered by adminiftrator durante mi- nor it afe - - - - "353 fare facias by adminiftrator in fuch cafe againfl the bail^ - - - - - 353 execution in fuch cafe on the judgment - ■ 353 aftion by joint adminiftrators - ' - ~ 353 fcire facias by adminiftrator de bonis non on judg- ment recovered by executor - _ _ ^53 right of executors to diftrain in what cafes - 353 — 355 right of executor of executor to diftrain - 355 executor as fuch may prove a debt under a com- miffion of bankruptcy _ _ _ ^55 when executor may take out a commlflion for a , debt due to the teftator, when not - - 355 executor may fign bankrupt's certificate - - ^^^ but not as executor, and in his own right 356 for executor or adminiftrator in equity 356, 357, 358 for executor of a deceafed partner - - 357 bill of revivor by executor - _ , ^57 where one of two executors plaintiffs in equity may be fevered . _ . _ j^g fuit not abated by the death of a co-ejcecutor - 358 8 after INDEX. 4H REMEDIES, r^at after executorfhlp of temporary executor, a fubfe- quent one may maintain a fult without another probate - - - - " 35^ executor come of age may continue the fuit of ad- niinillrator durante minorilaie by a fupplemental bill - . - _ - - 35S bill of revivor by fubfequent adminifirator - 35$ at law againft executor or adminlltrator, whero the caufe of aftion arofe before the teftator's death - - - - - 355 ■T'here exlft, where not - - 359 — 362 againft executor or adminiftrator, where the caufe of aftion arofe fubfequent to the ^ teftator's death - - _ ^St for rent due before and after that event 218 — 221 hjfclre facias . - _ 207, 208, 209. 217 againft an executor come of age by fcire facias on judgment recovered againft the adminiftrator durante minoritate - - - "32 3 againft adminiftrator on adminiftration bond - 382 how executor rsay make himfelf peifonally refpon- fible - - - - 363, 364 cannot be fucd at law for a legacy " 3^^ not liable to be fued in a cotirt of con- fcience - - - . 9^5 . executors not in general held to bail - - 366 in what cafes they may be - - 366 infant executor not liable 10 be fued - - 3.67 limited executor may be fued - - 367 in aflion againft wife executrix, hufband muft be joined _ . . _ . ,g^ on judgment againft huft)and, and wife executrix, if ftic furvive, not liable to a(51ii,u of debt fug- gefting a dcxcJJavit, and why - - 3^7 fvherc co-executors are defendants - - 567 where fome of them are infants - 36S one 4i« f N D E X. RilMEDIES, PAGB one executor not liable for the dcva/iavit of co- executor - . - > . -gg againd executor of executor, on a devajiavit by the latter - - - ' - - 368 aftion? againft limited ?.rlminiftrat6rs - ' - 370 adminiRralor durante minoritate, having wafted the afTets liable to the executor on his coming of age, but not after that period to a creditor "37° Dillrefs agarnfl: ^•xecutor of tenant for life or for years - - - - - 370 remedy for the affets in the cafe of a bankrupt executor - - - - 37 1 againfl executor or adminiftrator in equity 372 bill of revivor againft executor -• - 372 bill by legatees, or parties in diftribution 372 executor liable for intercll, in what cafes - 373 if he compound debts due from the teftator fliall not be entitled to the benefit - - - 373 executor, in what cafes not liable in confe- quence of lending, or paying money 373, 374 executor gentrally liable for compounding or releafxng a debt, when not - 374 executor may be called upon to fecure a legacy - ' - - - 374 againfl executors joining in a receipt - - 375 an executor liable to account, though co-ex- ecutor admit affets - - - 37^ againfl executor or adminiflrator in the ecclefiafl:!- cal court - - - - - 376 at the fuit of legatees, or parties In diftribu- tion - - - 376, effeq, at the promotion of a creditor - - 381 where legatees may fue executor in chan- cery and in the prerogative court at the fame time . - - . 382 if INDEX. 415 REMEDIES, PAGi if temporal matter be pleaded, fplritual court mud proceed according to common law - - - - 382 againfl executor defon tort - - - 368 may be fued with a lawful executor, but not with a lawful adminiftrator - 369 how far liable - - - - 3^9 executor of executor liable for the devafla- v'ftoi the latter - - - 3^9 executor defon tort of executor de fon tori not liable for devajlavit of the latter - 369 may be fued for a legacy in the ec- clefiaflical court - - 3^7 s. SUCCESSOR, what chattels go to - - - - '55 what not - - •' - *5^ W. WILL, definition o£ of lands of perfonal property written nuncupative by feme covert - - " - o by executrix - " - 7. 188 by queen . - . - - 7 avoided - - - - ~ 5 by mental difabllity - - - ^ durefs - - " " . ^ coverture crimes 6 7,8 E c avoided INDEX, vriLL, ?AGJ avoid