Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	act_n	king_n	parliament_n	4,725	5	6.6957	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A65445	The office and dutie of execvtors, or, A treatise of wils and executors, directed to testators in the choise of their executors and contrivance of their wills with direction for executors in the execution of their office, according to the law, and for creditors in the recovery of their debts : expressing the duty, right, interest, power and authority of executors, and how they may behave themselves in the office of executorship : with divers other particulars very usefull, profitable, and behovefull for all persons, be they either executors, creditors or debtors : compiled out of the body of the common-law, with mention of such statutes as are incident hereunto.	Wentworth, Thomas, 1568?-1628.; Doddridge, John, Sir, 1555-1628.	1641 (1641)	Wing W1358; ESTC R15205	180,173	328

Legacie in certaine and lying in Prender may be taken or had without the executors assent by the Legatee or him to whom it is bequeathed 106 2 When an executor can or safely may pay deliver or assent to a legacie 108 3 Whether one executor alone may doe it where there be many or what if the executor be an infant or a married woman ibid. 4 What shall amount to an assent of the executor and what to a disassent or a disability of assent 109 How a lease or chattell reall may be given to one for a time with remainder to another how not 113 6 Where an assent to the first or one part of the bequest shall amount to an assent for the residue 121 7 Of the manner of Assents and therein of Assents conditionall 123 8 What manner of interest the Legatee in the remainder of a Lease after the death of another hath during the life of that other and whether he may dispose of it during that time and how 125 9 Whether this remainder can be defeated by any act of the Devis●● for life or by the death of him in Remainder first 126 10 By what acts or accidents a legacie may be forfeited lost or revoked as by revocation death of the Legatee before c. 127 11 Whether the executors assent shall have relation to the testators death and shall make good a grant before made by the Legatee 135 Chap. XIX DIvers cases of bequests considered and expounded 139 Chap. XX. OF the executor of an executor 146 Chap. XXI TOuching Administrators 148 Chap. XXII COnsiderations in conscience touching payments of debts Legacies and the preferring or respect of persons 149 Chap. XII Of the Order and method to be used by Executors in paiment of Debts and Legacies so as to escape a devastation or charging of their owne goods WE have gone through and dispatched the two first proposed parts viz. 1. Touching the being of Executors and the manner of their being 2. Their having and the manner of their having We come now to the third part viz. their doing or disposing of the testators estate Now this consists principally in the issuing of money though partly also in delivering or assenting to the execution of Legacies not being mony but other goods or chattels bequeathed Money is to be issued by executors foure wayes ordinarily About the funerall of the testator About proving his Will In paying of debts In paying and satisfying of legacies pecuniary As for the first burials be as of necessity for two respects viz. 1. Of charity to the dead that hee may be Christianly and seemely interred 2. To prevent and avoide annoyance to the living who by the very view of dead carkases would both be affrighted and within a few dayes distasted at the nose We know that under the Law the touching of a dead carkase made a man uncleane and to need purifying nor can we easily forget what the sisters of Lazarus said to our Saviour touching their brother when hee had beene dead two or three dayes viz. that the taking of him then out of his grave must needs bring a noysome savour Hereabout therefore some expence is necessary and that not only for fees to be paid which in London amounts to a considerable summe specially for such as are to be buried within the Church but also otherwise viz. for the Pall or Hearse-cloath the ringing c. As for feasting and banqueting it seemes not to me congruent to the sadnesse and dolefulnesse of the action in hand But howsoever that be yet where the testator leaves not sufficient goods to pay his debts festivall expence is to bee forborn except the Executor will out of kindnesse beare it with his own purse for dead debtors must not feast to make their living creditors fast I mētioned a cōsiderable amount of funeral fees payable in London and surely to let my thoughts fall back upon it a little it is worth consideration whether in that kinde and especially for those who dying there are yet carried into their countries to be buried the exaction be not either unjust altogether or too onerously excessive so also for much ringing contrary to the Canon made at the Convocation in the first yeare of King Iames. The next thing mentioned to justifie and occasion expence is the proving of the Will But this way a greater disbursement except for riding charges or by reason of opposition by a caveat put in or the like will not stand allowable then is prescribed by the Statute made in the time of Hen. 8. whereby the fees of Ordinaries and their Scribes Registers and Officers be limited And it is strange that these bounds have beene so much and so frequently broken and transgressed the rather for that long before in the time of King Edward the third by an Act of Parliament it is provided that the Kings Justices should as well at the Kings suit as at the parties grieved enquire after such oppressions or extortions for so they be called yea S. Germ. who was no stranger to the civill and canon law as appeares by his book saith that the Ordinary ought to take nothing for the probate if the goods suffice not for funerall and debts but hee meanes only that conscience is against it Now we come to the third occasion of disbursment viz. paiment of debts which is the maine part of our businesse We have before seene what debts lye upon executors having assets to pay them we are now to see in what order they must pay them as well Vt sint fidi dispensatores as for their owne indempnity ne quid res sua capiat detrimenti To put our selves into the better order or method of handling these things we will sort out debts into their severall kinds thus They are of these three sorts viz. either Debts of or upon record Or debts by specialty Or debts without specialty The debts upon record may be againe divided into foure sorts or kindes viz. Debts to the King or the Crowne Debts by judgement or recovery in some court of record Debts by recognizance Debts by statute staple or statute merchant Amidst these the debts to the Crowne are to have the first place or precedence so as if there be not come to the executor goods of greater valew then will suffice for the satisfaction of these he is not to pay any debt to a subject and if he be sued for any such he may pleade in Barre of this suit that his testator died thus much indebted to the King shewing how c. and that he hath not goods surmounting the value of that debt Or if the subjects pursuit be not so by way of action as that the executor hath day in Court to pleade but be by way of suing execution as upon statute marchant or staple then is the executor put to his audita querela wherein he must set forth this matter And there is great reason why the Kings

before hath beene shewed So as if one give me his white Horse or blacke Cow by Will or any other well knowne thing I cannot after his death take it though I come where it is but am punishable by action of trespasse at the Executors suite if he doe not assent yet an Executor before the Will proved may give this assent and it will stand good Yea although he dye after any of these acts done the Will being never proved by him yet doe these Acts so done stand firme and good as I take it Yet as I finde an Executor making his Will and dying before he had proved the Will of his Testator his Executor may not prove both the Wills and so become Executor to both the Testators But in case the goods were after debts paid bequeathed to the Executor his Executor may take Administration of the first Testators goods with the Will annexed as by Doctor Drury was in the late Queenes time declared to be the Law and course of the Court Spirituall to which credit was given by the Judges of our Law and the Court of Star-Chamber for though the Booke doe not mention it to have beene in Star-Chamber it is elsewhere so reported Yea an Executor for goods of the Testator taken from him or a trespasse done upon the Lease Land or a Distrayning or Impounding of goods or Cattell may mainetaine before the Will be proved Actions of Trespasse or replevin or de●●nue for these Actions arise upon the Executors owne possession But before the proving of a Will an Executor cannot m●inetaine a suite or action of debt or the like And the reason is for that therein hee must shew forth the Will proved under the seale of the Ordinary And so as I take it must it be if he bring any Action for trespasse done or goods taken in the Testators life time so as the Testator himselfe was intitled to the Action and it growes not upon the Executors possession I finde that an Executor granting the next avoydance of a Church which to him came from the Testator the Grantee mainetained a Quare impedit without shewing forth the Will But the Executor himselfe might so have done as of his owne possession before the Will proved and so without shewing it under the seale of the Spirituall Court as well as Actions of Trespasse or Replevin for goods taken after the death of the Testator yet in the Principall case of Greysbrooke and Foxe which was an Action of Detinue by the Executor for goods taken or detained after the Testators death the Plaintiffe did shew forth the Will proved But that proves not any necessity thereof or that if the Will had not beene proved it could be no hurt to shew it forth so upon his own contract for the Testators goods as if the Executor sell Cattell or other goods of the Testator before the Will proved hee may for the money payable mainetaine an action of debt before he have proved any Wil and in this and the action of Trespasse there is no necessity of naming him Executor Also on th' other side an Executor may well enough be sued for debts of the Testator before the Will be proved for he may not by his owne Act of delaying the Probate of the Will keepe off Suites except he will refuse in due manner that so Administration being granted there may be some body Suable by the Testators Creditors for debts by him oweing And the usuall plea of the Defendant to estrange himselfe from the Testament is to say that he neither is Executor nor hath Administred as Executor So as if he either be Executor De jure or De facto by his owne act of Administring it sufficeth Of refusall to prove the Will and therein of Administration forecluding refusall NOw touching this other point fit to be thought of before wee meddle with the Probate viz Refusall to prove we will thereabout consider these severall parts viz. First how and in what manner refusall may or must be Secondly in what Cases or in respect of what acts one named Executor hath lost or determined his election of refusall or acceptance Thirdly of what effect and operation the refusall is what difference where all the Executors refuse and where but some or one of them Fourthly what relation it hath Now touching the first the Ordinary before committing Administration where a Will is made and Executors named if hee know of it must send out Proces against the Executors to come in and prove it and if they doe not come they are to be excommunicate but if they doe come if they nor any of them will prove by reason of such refusall the Ordinary may commit Administration perhaps also they may be appointed Executors at a time future and not presently Now refusall cannot be verbally or by word but it must be by some act entred or recorded in the Spirituall Court and therefore must be done before some Judge Spirituall and not before Neighbours in the Country for that is not effectuall Yet Sir Ralph Rowlett making the Lord Keeper Bacon Catlin Chiefe Justice and the Master of the Rolles Executors they wrote a Letter to the Ordinary that they could not attend the Executorship and therefore wished him to commit Administration who did so making every of their Refusall and this was held good So as a Lease being by that will bequeathed to Catlin and he after this refusall entring and assigning it to one and the Administrator assigning it to another it came in question betweene them whether had best right and Judgement was given for the assignee of the Administrator against Catlins assignee whereas if the Refusall had beene void Catlin had continued Executor and so his title had beene better First in case the Ordinary himselfe be made Executor there saith the Booke hee may refuse before his Commissary and so was it there pleaded for the Arch-Bishop of Canterbury who was made Executor to Sir William Oldhalle What shall be such a medling or Administring by an Executor that he cannot refuse after AS to the second where an Executor hath Administred he cannot afterwards refuse because he hath already accepted of the Executorship and so determined his election at least the Ordinary ought not to accept of such refusall but should compell him to take upon him the Executorship as the Law was taken both in the time of Ed. 4. and of Queen Elizabeth Yet if the Ordinary doe admit one to refuse notwithstanding that he have Administred this standeth good as it seemeth conceived by the Judges in the time of Hen. 6. for there the Executor commanded one to take goods of the Testator out of the hands of I. S. who did accordingly and afterward the Executor refused before the Ordinary and Administration was committed to the said I. S. who brought an action of trespasse against the party so taking the goods from

as I conceive ability to sue the debtor in his owne name but in our law it is otherwise the suit must be in the executors name for a debt or thing in action cannot be assigned except by or to the King and only at the common law is the debt recoverable but the Spirituall Court may force the executor to sue or let his name be used in the suit for and by the legatee If one bequeath all his moveables debts due to him are not bequeathed nor corne nor fruit growing on the ground nor stone nor timber prepared for building as the Canonists and Civilians hold On the other side if one bequeath the moiety of all his goods the legatee shall have only the moiety of that which remaines after debts payed for that only is to be accounted the testators which he hath ultraes alienum By a bequest of all utensils or household-stuff plate nor jewels are not given If one bequeath to his wife all her apparell she shall not have as some Civilians say her ornaments of gold or silver by which is meant as I take it chaines jewels bracelets rings c. but others are of contrary opinion except they be such things as are not lawfull for her to weare If a Bed be given by a will Venit ornamentum ejus saith the Civilian that is the furniture thereof passeth viz. not only the bed bedsteed bedcloaths but also the curtains and valents as I take it But I think that by gift of a Coach by will the Coach-horses passe not yet perhaps the furniture of the Coach-horses may passe as appertenant to the Coach for so I think they shall do rather then by bequest of the Coach horses without the Coach If one bequeath to A meat drink and clothing or alimenta he shall have saith the civill law also lodging habitation and all things necessary for the maintenance of life viz. as I take it fire and washing c. If one bequeath to his daughter ten pounds a yeare for her apparreling and she demandeth none in foure yeares now shall she not after that time have the arrerages of this ten pounds by yeare for the time passed If a man bequeath one of his horses or cowes not naming which to I. S. he is to chuse which he will so it be not the best of all saith the civill law and perhaps the mention of that exception growes out of respect to the hariot which the Lord should have or the mortuary which the Parson should have A man bequeathes thirty pieces of twenty shillings to A twenty to B and ten to C to be had in such a Chest or Casket and it is found after his death that there be but thirty in all in that casket or box now each shall be abated ratably saith my summist so as A shall have fifteen B ten and C five and this stands with good reason and justice for so each hath a proportionable part And it were reasonable that it were by Parliament established for law that all both legatees and creditors should be payed in like proportion where the state will not suffice for full payment of each rather then that an executor should have power to pay one all and another nothing yet if the testator left sufficient to make good all those sixty pieces bequeathed Quae. if that which is wanting in the casket shall not be supplyed and made up for if the cases following found with the same author be good law it should seeme so to be If one saith he bequeath to I. S. that which is another mans and whereto the testator hath no right then ought his executor to buy it and give it to the legatee or else satisfie him to the full value and this not only by the civill but also by the canon law and in foro conscientiae saith my author Againe if A bequeath to B such an horse by name and after sels away that horse and dyeth now is his executor bound to answer the value thereof to B and if the testator after his sale of that horse had bought another and called him by the same name as the first now shall this later horse passe to B saith the book except it can be proved that the testator sould the former horse of purpose to revoke his will touching that bequest So againe finde I that if one having but a moity or one halfe of Green close or of a stack of corne or other chattell doth give the whole so as the words be apparant to reach to more then his moiety then must the executor buy out the others part for the legatee or give him the value but if the words be but generall so as they may be reasonably satisfied with the testators part no supply shall be made So also if one having goods in pledge bequeath them it shall be construed to extend no further then his right A bequest is made of an hundred pounds to be payed at a future time viz. divers yeares after the testators death a question is made by the Summist whether the profit of the money in the meane time shall go to the legatee or the executor and he resolves with this difference if the day were given in favour of the legatee being an infant who could not safely receive it any sooner then he shall have the profit but if the respite of payment were in favour of the executor then shall the legatee have but the bare summe without any addition of meane profits If one bequeath all his terme or goods to his executor for payment of his debts or debts and legacies it is a void bequest because it is no more then the law would say if he had sayed nothing So if it be generally to performe his will If one seised in fee simple of land bequeath it to his executor to pay debts the executor hath no state of freehold for if he should then it must be either for life which might end by his quick death before debts payed or in fee-simple which would carry away the land for ever from the heire where perhaps a few years profits might suffice to satisfie the debts yea then by the death of the executor the land should discend to his heire and not go to his executor who would be executor of the first testator If one give or grant all his goods having leases for yeares as well as moveables the leases shall not passe as was held in the time of Ed. the 6. And so also was it admitted in Portmans case for the word bona comprehendeth only moveables by the better opinion there But the point in that case was pertinent to this place viz. a bequest in a will of all the testators goods and whether thereby a lease for yeares passeth or not was divers times debated but not resolved the Judges differing in opinion in that point but in