Intestate In these Cases though it seem by the Civil Law that such Testaments are void wholly yet by the Law of Nations and with us here in England such Testaments are good for so much as is therein already bequeathed Michael Grass Thesaur com opinion sect Testament Quest 12. 19. Mascha de Proba verb. Testa Conclus 1352. numb 70. Swin part 7. sect 12. numb 4 9 10. Pacis Consul p. 81. Simo. de Praetis de Interp ult voluntat l 1. fol. 195. 40. If there be two Testaments found and it cannot be known which of them was first made nor which was last made in this Case they are both void unless one of them be made in favour of the Testators children or those who after his death are of right to have Administration of his Goods if he had died Intestate and the other Testament made in favour of Strangers and then in such Case the Testament made in favour of the Children or Friends c. shall prevail and stand good as is shewed before in the first Chapter numb 17. Francis Mantica de conject ult volunt l. 2. Tit. 15. num 17. Swin part 1. sect 15. num 2. part 7. sect 11. num 2. 41. Or if one of the Testaments be made Ad pias causas and the other not then the Testament Ad pias causas shall prevail unless the other be Inter liberos amongst the Testators Children and then it shall prevail and not the Testament Ad pias causas as is shewed before in the first Chapter Num 18. Francis Mantica de conjectura ult volunt l 6. Tit. 3. num 43. Swin part 1. sect 16. num 7. part 7. sect 11. num 6. 42. Also where there are two Testaments and one of them is proved before the Ordinary c. and the Executors are entered to the possession of the Goods and then the other Testament is found and it cannot be known which was first made nor which was last made in this Case the Testament already proved shall stand and the Executors shall not be dispossessed of the Goods by means of the other Testament of the same Date Sichar in D. lib. ult Swin part 7. sect 11. num 4. 43. If a man be so extreme sick that he is almost at the point of Death and can scarce speak yet if he be of good understanding and sound mind as may appear by his Gestures and sensible Speeches in such Case he may make his Testament so as it come of his own accord and not at the earnest request or importunity of his Wife or some covetous person who expects and greedies after benefit by the same Franc. Mantica de conject ult volunt l. 2. Tit. 6. num 5 9 10. Socin Jun. Cosil 183. vol. 2. num 27 31 34 39. Mich. 1654. B. R. Hatcher Newborns Case Styl Regest Practicale p. 359. Swin part 2. sect 25. num 2 5 6 7. Simo. de Praetis de Interp. ult volunt lib. 2. Dub. ult Soluc 4. 44. If the friends of such a sick man or any other persons do without his knowledge prepare a Will in writing and bring it to him and read it and ask him if that shall stand for his Testament and he answers Yea and immediately after dieth in this Case such Testament is not good unless the Testator had first uttered his mind to the Writer or Inditer thereof or had requested them to write his Will or unless the Testator being of perfect mind and memory had by plain and express words or other apparent conjectures confirmed the same and not only by answering Yea. Franc. Mantica de conject ult volunt l. 2. Tit. 6. num 10. Swin part 2. sect 25. num 11. Gabr. l. 4. commun conclus Tit. de Testam conclus 2. num 13 17. 45. If a man through just fear and constraint of some other person do make his Testament such a Testament is void especially when afterwards the Testator declareth That he would gladly alter his Testament but for fear of such a person and then such Testament is void at least as to such a person by him named of whom he is afraid Mich. Grass Thesaur com opin sect Testament Quest 23. num Swin part 7. sect 2. numb 1. 10. 46. But here it is left to the discretion of the Judge who ought not only to consider the quality of the threatning but also the persons as well threatned as threatning and in the persons threatned the Sex the Age or Courage or Pusillanimity and in the person threatning the power the disposition and whether he be a meer Boaster or performer of his threats Menoch de Arbit Judic Casus 135. Maschar de Probat Conclus 1054. Swin part 7. sect 2. numb 7. 47. Also a Testament made by fraud is void unless the deceit of fraud be very small such as would not deceive any rational man or woman or that the fraud be not evil as where the Testator intending to bestow all his goods on some vile person omitting his honest Wife and Children here if the Wife and Children do perswade him that such person is dead or by some means deceive the Testator and procure themselves to he made Executors then this is not to be repelled as an unlawful Testament Bald. in d. lib. 1. numb 17. Swin part 7. sect 3. numb 2. 48. Though a man have sworn not to make a Testament yet notwithstanding he may lawfully make one and if he have made one sworn not to Revoke it yet he may afterwards make another and revoke the first but then it is convenient that he revoke his Oath also and say I make this my last Will and Testament notwithstanding my former Testament with the Oath therein contained not to revoke the same Mich. Grass Thesaur com opin sect Testament Quaestio 87. Jul. Clar. sect Testament Quaestio 94. Swin part 2. sect 24. 49. It is necessary to the validity of a Testament that the Testator have Ability to make a Testament not only at the time of the making thereof when the Testament receiveth his essence or being but also at the time of the Testators death when the Testament receiveth his strength and confirmation And therefore if a woman make her Testament and then marry and die during marriage such Testament is void or if she make a Testament during marriage and overlive her Husband and then die yet the Testament is void but if she make her Testament before marriage and overlive her Husband and then die in such Case the Testament is good or if it were made during marriage and after her Husbands death she doth approve and confirm the same and then die in such Case also it is held to be good Plo. Com. fol. 343. 37. Eliz. C. B. Forse Hemlings Case Co. 4. lib. Rep. fol. 60. Swin part 2. sect 9. num 4 5 6. 50. A Codicil may be added by Parol to a VVill in writing and this
if he write thus I make my Wife my of this my last Will and Testament leaving out this word Executrix yet in this Case his Errour shall not hurt it for the Law doth presume more was spoken though less was written and therefore she shall be taken for Executrix Swin part 4. sect 25. numb 7. Molin in l. 1. c. de Test sect de verb ob numb 8. in fin 11. Also if there be no Witnesses of a written Testament yet if it be certain and undoubted that the Testament is written or subscribed with the Testators own hand it is sufficient but if it be doubted whether it is his hand or no then the Testimony of Witnesses is necessary to confirm the same to be the Testators own hand or where there is no suspition of fraud proof may be made and allowed by comparing of hands with other writings signed by the Testator Maschard de probat verb. Testament Conclus 1352. numb 60. Swin part 4. sect 25. numb 8. Michael Grass Thesaur com opinionum sect Inst. Q. 16. n. 6. 12. Having spoken of a written Testament we shall now shew what a Nuncupative Testament is and that is where the Testator by word of mouth before a sufficient number of Witnesses doth declare his mind and names his Executor and this Testament is of as great force and efficacy as a written Testament except where Lands Tenements and Hereditaments are devised and to the making of this Nuncupative Testament no precise form of words is required neither is it material whether the Testator speak properly or unproperly so that his meaning do appear as is shewed before It is called Nuncupative à Nuncupando id est Nominando of naming an Executor and is most commonly made when the Testator is very sick and weak and past all hope of recovery Molineus in l. 1. sect Test ordin ff de verb. ob numb 8. in fin Just Instit sect de Test. ordinandis in fine Minsing in D. sect final Swin part 1. sect 12. part 4. sect 26. Terms of the Law verb. devise Noyes Maximes pa. 96. Perkin numb 476. 13. If such a Testament be put in writing after the Testators death yet it remains a Nuncupative Testament still Noyes Maximes pa. 96. Swin part 1. sect 11. numb 2. in princ 14. A man hath that priviledge in a written Testament which he cannot have in an Nuncupative Testament for in a Nuncupative Testament he must publish declare his minde but in a written Testament he may seal up his minde and keep it secret till after his death onely it beâ—ooves him to shew the same after it is sealed up to some Witnesses and say unto them This is my last Will and Testament or Herein is contained my last Will and so let them set their hands to some part thereof or otherwise to take such special Notes and Marks thereof as that they be able to prove the Identity of the writing after the Testators death and in such Case it is good enough though none of the Witnesses were privy to the Contents thereof Paris Consil 19. vol. 3. numb 25 26. c. Maschar Tract de probat Conclus 10. 1352. numb 173. Clar. sect Test. Quest 4. numb 3. Swin part 1. sect 11. numb 6 7 8 9. Simo. de Praetis de Interpretat ult volun l. 1. f. 31. 15. As touching priviledged Testaments there are three sorts thereof viz. Testamentum Militare Testamentum inter liberos Testamentum ad pias Causas That is a Testament made by a Souldier a Testament made by a Father amongst his Children and a Testament made for good and Godly uses Some other there are also but their priviledges are but small in comparison of these Mantica de Coniâ—â—â—u 〈…〉 voluntat lib. 1. Tit. 5 〈…〉 part 1. sect 13. 16. As to the first of these it is observable among the Civilians That a Souldier in Arms and in actual service of Wars is not disabled by any of those impediments whereby others are diâ—abled to make their Testaments except in Cases of Furor or lack of Reason and for other causes also when he is disabled Jure gentium And whereas there be divers which be prohibited to be Executors or Legataries to other persons yet notwithstanding they be Executors or Legataries to a Souldier except in some few Cases And whereas also no other person can die with two Testaments yet a Souldier may and both Testaments shall be deemed good according to the will and meaning of the Testator And likewise whereas another person cannot by the Civil Law die partly Testate and partly Intestate yet a Souldier may Minsing in Tit. de Milit. Testamen Instituend in principio Fitz. Abr. Tit. Execut. num 26. Franc. Mantica de Conject ult vol. l. 6. Tit. 1. num 32. Swin part 1. sect 14. Mich. Grass The saur com opin sect Testam Quest 3. num 1. Swin part 7. sect 11. num 5. 17. As to the Second where the Father maketh his Testament and nameth his lawful and natural Children his Executors and giveth them the residue of his Goods to this kind there also belongeth several priviledges for if there be found after the Testators death two Testaments of divers Tenors and it doth not appear which is first nor which is last in this Case the Testament made in favour of the Testators Children shall be deemed the later and shall take place whereas if neither be in favour of the Children nor otherwise priviledged then both are void except it be in case of a Souldier who by the Civil Law may die with two Testaments as aforesaid Also a Testament made in favour of Children is not so easily revoked as other Testaments are for whereas in other Testaments the former is revoked by the latter and that ipso jure without any express revocation yet by the Civil Law a Testament among Children is not revoked by a latter Testament wherein strangers are preferred unless it be mentioned and revoked by express words or unless the latter Testament be made ad pias Causas or else some great Displeasure or Enmity have happened betwixt the Father and Children or some like cause have come to pass whereby it may be made appear that the Father did repent him of the making of the said Will. And lastly another priviledge belonging to this Testament is That if there be no Witnesses to prove the same yet if the Testament be found among other Writings in the Testators Chest or like place and undoubtedly appear to be written or subscribed with the Testators own hand or by him procured to be written by some other then in such Case it is good enough but this Priviledge also is allowed to all other Testaments here with us in England as is shewed before in Num. 11. See the next Chapter Num. 33 40. Clar. sect Test Quest. 100. Franc. Mantica de conject ult volunt l. 6. Tit. 2. Swin part 1. sect 14. Mich. Grass Thesaur commun opin sect Testam
reason of incertainty because it is a Testament ad pias causas By the Poor therefore is understood the Poor of the Parish where the Testator did dwell and keep house and the Ordinary is to take care that the Poor have their due according to the meaning of the Testator Also if the Testator bequeath any goods or money to the Parishioners of any Parish to the use of the Church such a Bequest is good and the Legacie may be recovered by the Churchwardens who albeit in every respect they be not a lawful Corporation yet in this respect in favour of the Church they are accounted a lawful Corporation And where it is said that unlawful Colledges or Companies c. not Incorporated by the Kings Authority cannot be Executors yet in such case if the several and particular persons by name of an unlawful Colledge c. be appointed Executors they are not to be repelled Franc. Mantica deconject ult Volunt li. 8. tit 5. num 2. â—iraquel tract de privileg piae causae privileg 56. Lambert Tract de Officio Gardianarum fo 43. Bro. tit Corporation num 55 73 77 84. Fulb. li. 1. fo 42 43. Swin part 7. sect 8. 100. If the Testator make his own kin his Executors in this case those of kin who are nearest to him and should have had the Administration if the Testator had died Intestate shall be first admitted and enjoy the Executorship during their lives and after their deaths then the other next of kin to the Testator is to be admitted successively one after another and not all together but if the Testator make another mans kindred his Executors in such case they are all to be admitted together to the Executorship Simo. de Praetis de interp ult Volunt li 3. fo 91. num 28. Mich. Grass thesaur com opin sect Instit quaest 20. sect Fidei commiss quaestio 16. sect Legat. quaest 41. Swin part 7. sect 8. num 10. 101. Where the Testator makes the next of his kin his Executor and dies without issue of his body in this case the father or mother if living shall have the Executorship as next of kin to their son contrary to the Judgement given in the 5 E. 6. in the Duke of Sussolk's Case which Case is now over-ruled and not held for Law Co. 3. lib. fo 40. in Ratcliff s Case there Cowels Inst p. 40. Trin. 22 Car. 1. B. R. Styles Regestum practicale p. 21. Swin part 7. sect 8. in fine 102. If the Testator say I make A or B my Executors in this case it is all one as if he had said I make A and B my Executors unless it be where the Testator bears more affection to the one then to the other and then he which he bears most affection to shall be preferred as where the Testator makes his brother or John at Style his Executors in this case the brother shall be first admitted and after his death then John at Style if he be living shall be admitted Also where one of the persons so named is incapable then the dis-junctive standeth properly and the other shall be admitted alone to the Executorship Jul. Clar. sect Testament quaest 80. num 5. Swin part 7. sect 9. 103. An Excommunicate person so long as he standeth in the Sentence of Excommunication is not to be admitted to an Executorship by the Ordinary nor can he commence any Suit there for his Legacie Michael Grass thesaur com opin sect Institutio quaestio 4. Swin part 5. sect 6. 104. Bastards begotten and born in Adultery or Incest are not capable of any benefit by the Testament or Last Will of their Incestuous or Adulterous parents except there be onely so much bequeathed as will suffice for their competent Alimentation or Relief that is to say for their Food Clothing Lodging and other meet and convenient necessaries according to the degree and ability of their parents or that it be in case of Lands Tenements and Hereditaments for there a man may by his Testament or Will in writing devise to his Bastard all his Lands Tenements or â—ereditaments and such Bastard may sue for the same and recover them and so it was adjudged in the Lady Griffins Case upon the Testament of Sir Francis Wortly who devised all his Lands to his base daughter Mich. 18 Car. 2. B. R. Mich. Gâ—â—ss thesaur com opin sect Instit quaest 7. Gabr. com Conclus li. 6. tit de Aliment conclusio 1. num 5 31. Menoch praesump li. 4. praesumptio 157. num 3. 32 H. 8. c. 1. Brac. li. 2. c. 7. Swin part 2. sect 17. part 5. sect 7. 105. Note also that these incestuous or Adulterous Bastards may be Executor to any other person saving to their natural parents and are capable of a Legacie bequeathed to them from any other person yea even to their own Incestuous or Adulterous brethren they may be Executors or receive any other Testamentary benefit from them Jul. Clar. sect Testament quaestio 31. num 4. Swin part 5. sect 7. 106. Also where they are appointed but onely bare and nude Executors and receive no benefit by the Testament in such case they be admitted Executors to their own natural parents Simoâ— de Praetiâ— de interp ult Voluntâ— li. 5. fo 17. num 27. Swin part 5. sect 7. 107. The Adulterous Grandfather may bequeath any thing to the lawful children of his own unlawful sons or daughters or make them his Executors but so cannot the Incestuous Grandfather Covar in D. cap. 8. de Sponsal part 2. sect 5. num 13. Bald. C. de Incest Swin part 5. sect 7. 108. Several other persons there are who by the Civil and Ecclesiastical Laws are prohibited Testamentary benefits but being that I finde little or no mention made of them either in our Common or Statute-Laws which limit the power of those Spiritual Courts here in England I shall therefore pass them over in silence and proceed to the next Chapter CHAP. V. Of the several ways of appointing aâ— Executor 109. TO name or to appoint one as Executor is to place one in stead of the Testator who may enter to the Testators goods and chattels and have an Action against the Testators Debtors and may dispose of the same goods and chattels towards the payment of the Testators Debts and performance of his Will which if he neglect to do he may be sued by the Creditors or Legataries so long as he hath Assetts in his hands Noys Max. p. 101. Terms of the Law verb. Executor Swin 4. sect 2. 110. Now this naming or appointing an Executor is the head of the Testament and as the body is dead that lacketh an head so the Testament is as it were dead that lacketh an Executor for it is the foundation of the Testament and no Testament can stand without it or be called a Testament and though there be never so many Legacies or Devises given therein yet it is but a Codicil or Will and not
the Legatary can recover no more Swin part 7. sect 11. Simo. de Praetis de Interp. ult Volunt li. 4. fol. 179. Dubit 9. num 45. 205. Where the Testator doth bequeath to A B the Corn in his Barn and afterwards layeth up more Corn in the Barn and dyeth before the other be thrashed in this case the Legatary can but have onely that Corn which was there at the time of the Will making but if that be all spent before the Testators death then he may recover as much of the new Corn but no more Fulâ— fol. 41. Plo. Co. fol. 341. Masâ—ar de Probat Conclusio 1280. num 32 33. Swin part 7. sect 11. Cowels Inst pag. 145. 206. So note that it appears by these cases that sometimes the Testators death is to be taken notice of and sometimes the making of the Will is to be respected in the recovery of Legacies but in these and all other cases the Testators meaning is chiefly to be inquired after Franc. Mantic. de conject ult volunt li. 3. tit 11. num 22 23 24. tit 19. num 1 2 3 4. Swin part 1. sect 3. num 19. and part 7. sect 11. 207. If the Testator bequeath all his cleer goods after Debts paid c. to his Brother and his Children in this case the Father shall have half of the cleer Goods and the Children the other half for it is a Rule that where divers persons are comprehended under one Name collective with another third person then all they which be included under that one Name do represent but one onely person as in this case and shall have but a Moyety amongst them unless it be proved that the Testators meaning was that the Goods should be equally divided amongst them or that he expressed it so in his Will Paul de Castr sect de Haered Instit Fra. Mantica de conject ult vol. li. 4. tit 9. Swin part 4. sect 20. 208. If the Testator bequeath to the Childe in the Mothers Womb an hundred pounds in this case if the Mother bring forth two or three Children at that time the Legacy is to be divided amongst them Franc. Mant. de Con. ult Volunt li. 4. tit 8. num 4. Swin part 4. sect 20. Paul de Castr sect in li. Qui Filiabus 209. But if the Testator say If my Wife bring forth any Childe I give to the same an hundred pounds here if she bring forth two or three Children at that time then every Childe shall have an hundred pounds if the Testators Goods do suffice to satisfie the same unless it be sufficiently proved that it was the Testators meaning that they should have no more but an hundred pounds amongst them Swin part 4. sect 20. num 17. Text. in D. sect 1. 210. If the Testator bequeath to the Childe in the Mothers Womb if it be a Man-childe two parts of of his cleer Goods and if it be a Woman-childe then the Mother to have two parts of his cleer Goods and the Childe but one and afterwards the Mother brings forth two Children both a Man-childe and a Woman-childe in this case the Son shall have twice as much of the Testators cleer Goods as the Mother and the Mother shall have twice as much as the Daughter as for Example the cleer Goods amount to sevenscore pounds here the Daughter shall have twenty pounds the Mother forty pounds and the Son fourscore pounds whereas if she had brought fourth onely a Son then the Son should have had fourscore and thirteen pounds six shillings and eight pence and the Mother six and forty pounds thirteen shillings and four pence and if she had brought forth onely a Daughter then the Mother should have had fourscore and thirteen pounds six shillings and eight pence and the Daughter forty six pounds thirteen shillings and four pence Franc. Mantica de conject ult Volunt li. 4. tit 9. num 12. Swin part 4. sect 20. 211. But if the Testator bequeath to the Childe in the Mothers Womb if it be a Man-Child two parts of his Goods as aforesaid and the Mother one and if a Woman-Childe then the Mother two parts and the Childe but one and the Mother brings forth an Hermaphrodite who hath both the parts of a man and a woman in this case the Hermaphrodite shall have onely the Portion due to that Sex of which the Hermaphrodite doth most participate and not the Portion due to both Sexes and if it be doubtful of which Sex it doth most participate then it shall be presumed according to the more worthy kinde Swin part 4. sect 20. num 19. Co. on Litt. fol. 8. Phillipps pr. of Law pag. 36. 212. If the Testator give an hundred pounds to the Children of A B who hath four Children at that time of the Will making and afterwards before the Testators death A B begetteth other four Children so that he hath eight Children in all yet in this case those four only which were born when the Will was made shall have the hundred pounds and the other four shall have nothing out of it Simo. de Praetis de Interp. ult Volunt li. 4. dub 9. fol. 178. Menoch de Praesump li. 4. Praesumptio 127. num 18. 213. If the Testator bequeath an hundred pounds lying in such a Chest to A B and there is no Mony in the Chest here the Legacy is void unless the Testator say I give to A B an hundred pounds and I will that the same be paid out of the Monies which I have in such a Chest or of the Mony which such a man doth owe me in such Case although there be no Mony in the Chest nor any due by the person named by the Testator yet the Legacie is due and ought to be paid out of the Testators Goods Swin part 7. sect 5. num 15. Mich. Grass thesaur com opin sect Legat. quaestio 59. num 3. 214. And where the Testator doth bequeath ten pounds to A B remaining in such a Chest and at his death five pounds onely is found in the same Chest in this case the Legacie is good for so much as is found in the Chest and no more Swin part 7. sect 5. num 15. Paul de Castr in D. sect quinque num 9. 215. If the Testator do imagine himself to be indebted to another person and doth bequeath that debt to the same person which he erroniously supposeth he oweth him not expressing any sum in this case the Legacy is void but if he say I do bequeath ten pounds to such a person which I owe him whereas the Testator knows he owes him nothing yet in this case the Legacie is due notwithstanding the false demonstration and here the Testator is not presumed to err unless the Executor make proof of error Paul de Castr in li. 2. C. de falsa causa adject Swin part 7. sect 5. num 14. 216. If the Testator meaning to give but fifty pounds doth give an hundred pounds or meaning
land after the death of his Wife in this case the Wife by the favourable interpretation of such Will shall have the land for term of her life Finches Law pag. 172. 13 H. 7. 13. Terms of the Law verb. Devise Cowels Inst pag. 144. Swin part 4. sect 4. Noyes Maxims pag. 100. 230. If a man devise all his lands in A. to his two Daughters and makes them Executrixes and afterwards purchaseth more lands in A. and then dies without a new publication of his Will and expressing of this land newly bought therein in this case this land newly bought doth not pass by the same Will H. 43 El. C. B. Beckford and Parncotes Ca. Goldsboroughs Rep. pag. 150. pl. 77. 231. A man having four Daughters A B C and D devises his lands to his Wife for her life and after her decease the same to be equally divided amongst his Daughters or their Heirs A one of the Daughters died before the Mother and after the Mothers death the heir of A sued for a fourth part and adjudged for the Heir by vertue of the disjunctive or but if it had been to have been divided amongst his Daughters and their Heirs this word had altered the case and would have given the Fee to the three surviving Sisters Mich. 1 Car. 1. B. R. Rot. 189. Taylor and Hodgskies Case Godbolts Rep. fol. 363. 232. If one devise his lands to another Man and his Heirs and the Devisee dieth in the life-time of the Devisor and afterwards the Devisor dieth in this case the Heirs of the Devisee shall not have the land Plo. Com. fol. 342. in Brett and Rigdens Case 233. If a man seized of lands in Fee sowe the same with Corn and afterwards deviseth the land to A B and dieth before the Corn be severed in this case the Devisee shall have the Corn a swell as the land but it is otherwise where the lands descend to the Heir for the Executors or Administrators shall have the Corn sown at the Testators death Mich. 20 Jac. C. B. Spencers Case Winches Rep. fol. 51. 234. A man devised his Messuage whereof he was seized in Soccage in Fee by these words I devise my Messuage where I dwelt to my Cozen H and her Assigns for eight years and my Cozen H shall have all my Inheritances if the Law will and this was adjudged a good devise in Fee of the Messuage and by the general words of the Will all the Inheritances pass also Mich. 11 Jac. C. B. Wedlock and Hardings Case Godbolts Rep. fol. 208. 235. If a man devise his Lands to the Heirs-Males of any of his Sons or next of Kin such a devise is void for the uncertainty thereof Hil. 2 Car. 1. C. B. Rott 1288. in Hunt and Fishers Case and Trin. 1649. B. R. Rott 849. Beal and Wymans Case Styles Rep. fol. 240. 236. A man having Lands in Fee-simple and Goods to the value of five pounds onely deviseth to his Wife all his whole Estate paying his Debts and Legacies which amounted to forty pounds in this case it was adjudged that all the lands did pass by the devise and that the Wife had a Fee-simple in the lands the word paying enforcing it for they are to be paid presently which cannot be if the land pass not in Fee Tr. 1651. B. R. Kirman and Johnsons Case Styles Rep. fol. 293. and see 29 H. 8. Bro. Testament 18. 237. A seized of three Houses and other Lands Pastures and Meadows in W in the County of H and of Land in the County of O devised in this manner viz. I give my Capital Messuage in the Counâ—y of O and all other my Lands and Meadows and Pastures in the Parish of W to such an one and adjudged here that all the houses passed by the devise for that lands comprehends houses also Ewer and Heydons Case Abr. Mores Rep. pag. 103. pl. 468. 238. If a man devise the profits of his lands it is a devise of the lands themselves Tr. 16 Jac. C. B. Rott 465. Balder and Blackbornes Case Brownlo 1 part 79. Owens Rep. 66 Tr. 23 Car. Styles 81. 239. A man by his Will deviseth his lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of twenty one years and if the Issue die before that age or before his wife or if she hath no Issue that then she shall chuse two Attorneys and sheto make a Bill of sale of any lands to her best advantage In this case it was resolved that the wife hath those lands for life and she having no Issue hath not any interest to dispose but hath an authority to nominate two who shall dispose of the lands and they shall make sale of them Mich. 5 Jac. B. R. Beal and Shepherds case Bro. 2 part Rep. fol. 199. 240. I might go on to shew what words in a Devise make a Condition and what a Limitation and where an estate shall pass by Implication and what words make an estate Tayl Fee-simple or for Life and where the Devisees shall be Joyntenants and were Tenants in Common with several other things but it not being the intent of this Treatise I refer the Reader to the learned Reports now extant where he may be satisfied and so I return again to my purpose 141. Devises and Legacies are to be sued for in the Ecclesiastical Court but the Ordinary cannot take Cognizance of Fees or Free-hold devised but a Prohibition will lye if any Judge of any Spiritual Court shall cite one before him in case of such a devise as intrencheth upon the Common Law Perkins sect 576 579. and Dr. and Stud. li. 2. cap. 55 Cowels Inst pag. 146. 242. Note there may be much deceit used by a knavish Executor and though the Goods be of a great value after the Debts are paid which were truely owing and due by the Testator yet he may keep the Legacies and never pay them perhaps but pretend that all the Debts are not paid and thereupon may cause Strangers to sue and then alledge that there are more Suits against them then the Goods of the Testator are sufficient to satisfie or they may confess the Actions brought against them and several other ways there are whereby they may defraud the Legatees of their Legacies Therefore it were good for Testators in their life-times either to secure the Legacies to the Legatees by some sure means or otherwise in their life-time to deliver the same that they see them possessed thereof and not leave it to the Will of the Executor Perkins sect 571. CHAP. IX Several Cases concerning the Duty of an Executor 243. THere are three kinds of Executors or persons which have to deal with the Execution of dead mens Wills and disposition of their Goods The first hath his Authority from the Law and that is the Bishop or Ordinary of every Diocess who hath the execution thereof when no Executor is appointed by the Testator
Goods in his hands of the first Testators the surviving Executor may have an Action against him for the same and if the surviving Executor do afterwards dye intestate yet cannot the Executor of the Executor meddle with the Goods of the first Testator but Administration thereof is to be committed to the next of Kin to the Testator and if the Executor of the Executor or who dyed first meddle with the Goods then he may be sued by the Creditors as Executor in his own wrong Bro. Exec. 92 99 149 160. Swin part 4. sect 20. 259. If one make another his Executor and dyeth and the Executor before he hath proved the Will maketh another his Executor and dyeth in this Case Administration of the first Testators Goods with the Will annexed shall be committed to the next of Kin of the first Testator and not to the Executor of the Executor unless the first Testator did bequeath his Goods as his Debts Funeral-expences and Legacies paid to the Executor named in the Testament and then in such case the Administration of the first Testators Goods is to be committed with the Will annexed to the Executor of the Executor Dyer fol. 372. num 42. M. 23 El. Isteds Ca. Swin part 6. sect 3 260. Note that if divers be appointed Executors and one of them doth sell some of the Testators Goods for a sum of money then that Executor which sold the Goods may sue alone for the money due for the same Swin part 4. sect 20. Bro. Exec. num 65. 261. Where divers persons are made Executors and the Testator gives them power to sell his Lands in this case though some of them dye or do refuse the Executorship yet the others who take upon them the charge and burden of the same Testament and Will may sell the Lands except in some Cases Perkins sect 545. Pasch 46 E. 3. Devise 8. 21 H. 8. cap. 4. 39 〈◊〉 pl. 17. Co. on Litt. fol. 113. Swin part 6. sect 3. Dyer fol. 371. See Howel and Barnes case Mich. 10 Car. 1. Cro. 1 part 262. As where the Testator Deviseth that after his death his Lands shall be sold by his Executors with the assent of A B maketh his Wife and a Stranger his Executors and dyeth and then the Wife dyeth and A B also in this Case the Authority of selling the Lands is extinct and gone by the death of A B without whose consent it cannot be sold and therefore if the surviving Executor should sell such sale is void Brownlowes part Rep. fol. 100. Mich. 5 Eliz. Dyer fol. 219. Fulb. fol. 41. Swin part 6. sect 3. 263. But if a man Devise by his Will that A B and C D whom he makes his Executors shall sell his Land for payment of his Debts and they refuse to be Executors yet notwithstanding they may sell the Lands because they are named by their proper names or if one of the Executors dyeth and the other taketh upon him the Executorship and afterwards selleth the Lands such sale is good 15 H. 7 12. Perkins sect 548. 19 H. 8 9. Swin part 6. sect 3. 264. But where a man by his Will maketh A B C and D his Executors Devises his Lands to the said A B C and D by their special names and to their Heirs and further deviseth that the Devisee shall sell his Lands for payment of his Debts and one of the Executor refuses to intermeddle in this case it hath been held that this being a special and joynt interest the other three Executors thereupon cannot sell without their Compaâ—ion Mich. 29 Eliz. B. R. Bonnisant and Sir Rich. Greenfields case Godbolts Rep. fol. 77. And sec 26 El. B. R. Vincent and Lees case Co. on Litt. fol. 113. 265. My Lord Cooks advice is to such who devise by their Wills their Lands to be sold that they make it as certain as they can as that the sale be made by his Executors or the Survivor or Survivors of them if his meaning be so or by such or so many of them as take upon them the Probat of the VVill c. and it is better to give them an Authority then an Estate unless his meaning be they should take the profits of the Lands in the mean time and then it is necessary that he deviseth that the mean profits be assets in their hands for otherwise they shall not be Assets Co. on Liâ—t fol. 113. 266. If a man devise his lands to be sold by his Executors and to distribute the profits to Pious uses yet after the death of the Testator the Inheritance shall descend to the Heir and shall remain in him until the Executors sell the same and the Heir ought to receive the profits thereof till the time of the sale but if the Testator devise his lands to his Executors which he willeth to be sold and the money to be distributed to Pious uses here the Executors after the Testators death shall receive the Profits and not the Heir for in the first case the Executors have only an Authority to sell and in the last case they have the frank-Tenement Brownl 2 part Rep. fol. 136. Noyeâ— Max. pag. 100 101. 38. Ass Pl. 3. Perkins sect 541 and 543. Swin part 6. sect 3. num 7. Cowels Inst pag. 139. 267. Note that the Executor of an Executor cannot sell the land of the first Testator who by his Testament gave power to his Executor to sell the same but it shall go to the Heir unless the Will be otherwise Bro. Tit. Executor 3. Perkins sect 507 554. Swin part 6. sect 3. num 11. in fin 268. If a man willeth that his Executors shall joyntly sell his land or that his Executors and his Feoffees shall joyntly sell his land in such case if one Executor sell to one and the other to another or if the Executors sell to one and the Feoffees to another and afterwards they joyn in the sale to a third person in such case the last sale onely is good and the other voyd Perkins sect 546 and 553. 269. If a man willeth his lands shall be sold for the payment of his Debts and express not by whom it shall be sold then the Executors shall sell it but if he willeth his land to be sold and express not by whom nor for what in such case it hath been held that such Devise is void and the land shall not be sold but descend to the Heir Perkins sect 547. 15 H. 7. 12. 270. The Executors or Administrators of Tenants in Fee-simple Fee-Tayl and Tenants for term of life of Rent-services Rent-charges Rent-sects and Fee-farms by the Stat. of 32 H. 8. may either distrain or have an Action of Debt against such Tenant as is behind and in Arrear to the Testator at the same time of his Death for such Arrearages of Rent as ought to have been paid to the Testator in his life-time and if the Tenant who was in arrear be dead then they may
years to his Executors for the payment of his Debts this shall be assets in the Executors hands but if a man Devise his Lands to be sold for the payment of his Debts it is no assets till it be sold unless he express it to be so in his Will Pasc 9 Jac. C. B. Brownl 1 part Rep. fol. 34. Hil. 10 Jac. C. B. Brownl 2 part fol. 47. 298. If a man make a Lease for years of a House c. reserving Rent and the Executors after the Testators death receives the Rent yet it is no assets in their hands for the whole Rent belongs to the Heir 20 El Dyer fol. 362. Plo. com fol. 114 and 259. 299. If an Executor or Administrator make gain of the Testators Money that gain shall be assets in his hands Brownlowes 1 part Rep. fol. 77. 300. If an Executor pay Funeral-expences or Debts of the Testators with his own Money he may retain goods of the Testators to the same value and they shall not charge him as assets in his hands Cleydon and Spencers ca. Mores Rep. fol. pl. 3. Hernes Law Con. pag. 88. Noyes Max. pag. 104. Swin part 6. sect 16. Dyer fol. 2. and fol. 187. 301. Note where it is said before pl. 284. that an Action lies against an Executor upon his promise to pay a Debt of the Testators yet there ought to be a good consideration to ground the Assumpsit upon which must be either an advantage to the Executor or a damage to the Creditor as forbearance till such a time c. or else the Action will not hold M. 2 Jac. B. R. Fisher and Richardsons case Cr. 2 part Rep. fol. 47. P. 10 Jac. B. R. Booth and Cromptonâ— case Cro. 2 part fol. 613. and H. 16. Jac. Bogge and Melins case Huttons Rep. fol. 27. 302. If Judgment be given against Executors and upon a fieri facias the Sheriff returns Nulla bona in such case the plaintiff may have another special Writ of fieri facias directed to the Sheriff that he levy the Debt of the Testators goods and if it appear to him that the Executors have wasted the goods then that he levy the same of the Executors own proper goods H. 45 El. B. Râ— Pettisers case Co. 5 lib. Rep fol. 32. and Tr. 16 Car. 1. B. R. King and Hiltons case Cr. 1 part Rep. fol. 438. 303. A man was bound in an Obligation with condition for the performance of Covenants and dyes after whose death his Executors break Covenants and the Bond being sued it was moved that Execution might be of the Executors own goods because the breach of the Condition was the Executors own Act. But the Court denied it and Judgement was entred debonis Testatoris Tr. 17 Jac. C. 〈◊〉 Rott 1849. Castilion and Exec. of Smiths case Hobarts Rep. fol. 283. 304. If an Executor or Administrator be sued for a Debt of the Testators and he knoweth of a Judgment or other Debt upon Record against the Testator if the Executor have no more goods then will satisfie the same then he may well plead this special matter and it shall bar the party that sues for it shall be taken for a plâ—ne Administravit and if the Executor should pay the party that sues before the Judgment it will be a Devastavit and he will be forced then to pay the Judgment out of his own proper goods as is shewed before pl. 292. Hil. 7 Ed. 6. Dyer fol. 79. P. 12 Jac. C. B. Moon and Andrewes ca. Hobart Rep. fol. 133. Tr. 15 Jac. C. B. Rot. 2119. Kydd and Chynelyes case Hobarts Rep. fol. 218. Scarles case in Mores Abr. p. 191. pl. 877. and Barracloughs c. Clayt Rep. 65. pl. 112. 305. If an Executor be not minded to take upon him the Office of Executor then it behooves him not to meddle with any of the Testators Goods for if he once Administer of the Goods of the deceased and make use of them by selling the Goods or killing any of the Cattle or if he pay any of the Testators Debts or receive any Debts due to the Testator and give Acquittances for the same with other like acts in such Case he shall be said to Administer as Executor and may be compelled to stand to the Executorship Hil. 8 Jac. C. B. in Wickenden and Thomas case Brownlowes 2 part Rep. fol. 58. Bro. Ex. 49. Fitz. Exec. 38. Stokes and Porters ca. Mores Rep. fol. Noys Max. p. 102. Tr. 13 Eliz. C. B. Hawkins and Laws ca. Leon. Rep. fol. 155. Swin part 6. sect 22. Porters case Dyer fol. 166. 306. If a Stranger who is neither Executor nor Administrator enter upon the Goods as aforesaid this shall charge him as Executor of his own wrong and he may be sued by the Creditors of the person deceased but after the Will is proved or Administration granted and they have intermeddled with the Goods then the Stranger cannot be sued because there is another Executor of right against whom the Creditor may bring his Action and is chargeable as far as those Goods will extend which are come to his hands after he hath assumed upon him the charge of the Executorship but notwithstanding all this that there be an Executor which doth Administer yeâ— if the Stranger will still take the Goods and claim to be Executor and pay Debts or Legacies or receive Debts in such case it is said he may be charged as Executor in his own wrong although there be another Executor of right Quia os suuâ— contra se aperuit nam expressa nocent quae tacita non nocent 2 Jaâ— C. B. Reads case Co. 5 li. fol. 33 34. Swin part 6. sect 22. M. 3 Car. â— Whitmore and Porters case Cro. 1 part Rep. fol. Vide â—r 12 Jac. C. B. Rott 4087. Keeble and Osbastons case Hobarts Rep. fol. 49. And Chandler and Thompsons case 262. Bro. 2 part Rep. fol. 185. 307. Note that an Executor of his own wrong is chargeable no further then the value of the Goods which come to his hands and with which he hath intermedled Brownlowes 2 part Rep. fol. 185. Mich. 23 Car. 1. B. R. Styles Repracticale pag. 120. 308. If a man do onely perform deeds of Charity as to feed the Cattle of the deceased lest they should perish or take into his custody the Goods lest they should be stoln or dispose of the Goods about the Funeral of the Testator these acts do not charge a man as Executor of his own wrong Frane Mantica de conject ult Volunt li. 12. tit 9. num 18. Fitz. Exec. num 38 45. Bro. Admin num 6 28. Swin part 6. sect 22. Brownlowes Rep. 2 part fol. 184. Hil. 1 El. C. B. Dyer fol. 166. Noyes Max. pag. 102. 309. Where servants after the death of their Lords or Masters do imbezil their Goods after full infortion thereof made to the Lord Chancellor by the Executors or two of them of such spoil made the said Lord Chancellor by advice of
num 2. 21 H. 8. C. 5. Swin part 6. sect 15. 334. When the goods of the deceased exceeds five pounds and are under forty pounds then there is due to the Ordinary for the Probat two shillings and six pence and to the Scribe for Registring the same one shilling and where the goods exceed forty pounds then there is due to the Ordinary for the Probat two shillings and six pence as above said and two shillings and six pence to the Scribe for Registâ—ing of the same or the Register may refuse two shillings and six pence and take a penny for every ten lines of the Testament each line being to contain ten Inches in the length but note that in all these cases the Will must be brought to the Ordinary ready Ingrossed with wax at the same if you intend to tye him to the Fees above said Swin part 6. sect 15. Refor Legum Ecc. tit de Test C. 17. Wingates Abr. Stat. tit Prob. of Testaments num 3. 21 H. 8. cap. 5. 335. The Fees either for the copy of the Will or Inventary are the same as are allowed for Registring the Will or the Register may refuse the same and take a penny for every ten lines for the length as aforesaid The Officer that takes more then his just Fee shall forfeit that excess to the party grieved and ten pounds besides to be divided betwixt the King and the party that will sue for the same in any of the Kings Courts 336. Where by custom less hath been taken in any of the cases aforesaid there less is to be taken still notwithstanding the Act of the 21 H. 8. Wingates Abr. Stat. tit Probat of Test. num 11. Swin part 6. sect 15. num 4. 21 H. 8. cap. 5. 337. If a Testament be in Paper and the Executor desires that the same shall be transcribed and ingrossed in Parchment then he must agree with the Clerk for transcribing the same as cheap as he can and when both are brought to the Ordinary it is in his choice whether he will put his Seal and Probat to the Original or Transcript but there is nothing due to the Ordinary for the Transcript nor for examining the same with the Original but onely for affixing his Seal and Probat he shall take such Fees as is afore declared Co. 3 part Inst. fol. 149 150. chap. Extortion 338. And If any Ordinary or his Official c. exact greater Fees then these above mentioned it is Extortion and so it was adjudged by the whole Court of Common Bench Mich. 6 Jac. upon an information against one Rowse Commissary of the Arch-Deacon of Huntington at the suit of one Neal which was for taking a Fee for ingrossing the Probat upon the Transcript of the Testament over and above his lawful Fee due by the 21 H. 8. above mentioned and if this president were put into practice the Probat of Testaments and granting Administrations would not be so chargeable as in most places at this day they are Mich. 6 Jac. C. B. Rott 1301. Neal and Rowse case Co. 4. part Inst fol. 336. 339. When a Will where Lands are devised comes to be proved in the Prerogative-Court they ought onely to take a Copy thereof into their Leiger-Book and deliver the Original to the Legatee of the Lands to support his Title by if he be questioned for the same Mich. 1649. B. R. Styles Regest Practicale pag. 358. 340. If a man be long absent and it be not known whether he be alive or dead if he have made a Will it may be proved especially if it be reported that he is dead and that the party absent were sickly and a very old man when he went away or the like Mischard de probac. Conclusio 1074. num 4. Swin part 6. sect 13. 341. Note that if the party dying have at the time of his death goods or good debts in any other Diocess or Diocesses or peculiar jurisdiction within that Province besides those goods in the place where he dyes amounting to the value of five pounds at the least then the Probat of such Will or granting Administration belongs to the Arch-Bishop or Metropolitan of that Province whether it be within the Province of Canterbury or York this does not prejudice those Diocesses where by composition or custom Bona Notabilia are rated at a greater sum Book of Canons pub 1 Jac. Anno Dominâ— 1603. Can. 92 and 93. Perkins sect 489. 342. And if the Executor or Administrator cited or appearing voluntarily before the Judge appointed for Probat of Wills c. within such Diocess or peculiar Jurisdiction where the party dyed do upon his Oath affirm that the party deceased had goods or good debts to the value of five pounds aforesaid in any other Diocess or Diocesses or peculiar Jurisdiction within the said Province then is the Judge to dismiss him and admonish him to prove the said Will or require Administration of the goods in the Prerogative Court of the Arch-Bishop of the Province and afterwards to exhibit the Probat or Administration under Seal of the said Prerogative-Court before him the said Judge within forty days then next following and the said Judge so dismissing the party as aforesaid shall not exact or take any charges of the said partiâ—â—â— more then suâ—h onely as are due for the Citation and other Process had and used against such persons upon their contumacy and if any Judge or their Register shall offend herein he is to be suspended from his Office ipso facto and not to be absolved till he have paid to the party all his expences laid out contrary to the Tenor of the premises Book Can. 1 Jac. An. Dom. 1603. Can. 92 and 93. Swin part 6. sect 11. 343. Note that the probat of every Bishops Testament or granting Administration of his Goods although he have no Goods but within his own Jurisdiction where he was Bishop doth belong to the Arch-Bishop within whose Province the party deceased was Bishop Co. 4 part Inst fol. 335. 344. If any Ordinary of a Diocess or Commissary of a peculiar Jurisdiction commit Administration of his Goods that hath Bona Notabilia as aforesaid in divers Diocesses it is utterly void to all intents and purposes aswell concerning Goods in his own Diocess as elsewhere But if the Metropolitane do commit Administration supposing the party deceased to have Bona Notabilia whereas he hath but Goods only in one inferior Diocess this Administration is noâ— vâ—yd but only voydable by Sentence for that the Metropolitane hath Jurisdiction over all the Diocesses within his Province 22 El. â— â— Veer and Jefferâ—es Ca. vouched in Co. 5 li fo 30. in Princes case and Mores Rep. the same case 345. Note that in former times when Popery and Idolatry reigned in this Kingdom every Executor or Administrator was to pass his Account to the Ordinary how he had performed his Office and if any thing remained in the Executors hands after the