CHAP. I.
What a Testament is, with the several kinds and forms thereof; and the difference between a Testament, a lest Will, and a Codicil.

1 A Testament is derived of Testatio Mentis, and most properly is defi­ned after this manner: Testamentum est vo­luntatis nostrae justa Sententia, de eo quod quis post mortem suam fieri vo­luit. [Page 2] A Testament is a just sentence of our Will touching that which one would have done after death. Brac. Latches Rep. fol. 137. Cowells Instit. pa. 117. Swinbornes Wills, &c. part 1. Sect. 2. in princ. Justinians Inst. Tit. 10. l. 2. de Test. numb. 1.

2. Every Testament is a last Will, but every last Will is not a Testa­ment; for a last Will is a general word, and agreeth to every several kinde of last Will, or Testament; but it's properly to be called a Testa­ment, when an Executor is named: for by the naming an Executor, it differeth from the rest. Franc. Man­tica de Conjectura ultimar. volunta­tum, lib. 1. Tit. 5. Swin. part. 1. Sect. 1. Simo. de Praetis. de Interpretatione ult. vol. lib. 2. Dubium 1. Solutio 9.

3. Observe that of Testaments, some be written, some unwritten or Nuncupative; some solemn, some un­solemn; some priviledged, and some unpriviledged of every kinde, whereof we shall speak a word or [Page 3] two. Michael. Grass. Thesaur. com. opinion. Sect. Testa. Questio 10, 11. numb. 1, 3. Franc. Mantica de Con­ject. ult. vol. lib. 1. Tit. 7. Swin. part 1. Sect. 8.

4. Now as to the formal making of a Solemn Testament, many things are requisite by the Civil Law. As 1. That there be seven Witnesses present at the making thereof. 2. They must all be required to be there on purpose: for it is not suffici­ent, if they were there onely by chance, and unrequested. 3. Every Witness must subscribe his Name with his own hand, if he can write, or else two or three others for him. 4. The Testator with his own hand also must write his own Name, and the Name of him whom he will have to succeed him, and have all his goods; and if the Testator cannot write, then he must name the party (that shall succeed him) before the Wit­nesses. 5. The Witnesses must be such as are not prohibited in that behalf. [Page 4] 6. The Witnesses must see and be­hold the Testator, and not hear him onely; and the Witnesses also must seal the Testament, either with their own, or the seal of some other. And lastly, the Testament must be finished at one time, without any Intermis­sion, except natural, such as cannot be avoided: And if any of these parti­culars be wanting, then it is reputed for a solemn Testament; but here in England, we are not necessarily tyed to observe this strict form of making our Testaments.

5. For with us it is sufficient, if the Testator do appoint his Execu­tor, and declare his Will before two or three Witnesses, whose probation of the same, as concerning the ap­pointment of an Executor, or dispo­sing of Goods and Chattels, is good e­nough; [...] and such a Testament is call­ed an unsolemn Testament. Lynd­wood in C. Statut. verb. Probatis lib. 3. Provincial. Const. Cant. Brac. lib. 1. c. 16. Swin. part 1. Sect. 3. and part. 4. Sect. 24. Glan. l. 7. C. 6.

6. But if the Testator devise any Lands, Tenements, or Hereditaments, then the Testament must be in wri­ting, and done in the life-time of the Testator, and approved by him for his Will before his death; except in some special Cases. See the next Chap­ter, Num. 37. 32 H. 8. cap. 5. Noy's Maximes p. 97. & Swin. part 1. sect. 11. & part 4. sect. 25.

7. Also if a man pleaseth, he may make his Testament in writing, where­in he disposes of his Goods and Chat­tels only; and may also use the te­stimony of more Witnesses then two, and procure them to subscribe their names to every sheet of the Testa­ment; which is very safe, and may prevent many forgeries. Swin. part 1. sect. 10. num. 4.

8. The most usual form of Wills and Testaments with us The form of a Testament or [...]ast Will. here in England, is af­ter this manner. In the name of God Amen. The tenth day of April, 1667. in the nine­teenth [Page 6] year of the Reign of our most gracious Soveraign Lord King Charls the Second of England, &c. I Peter Style of B. in the County of York, Gent. being sick and weak in Body, but of sound and perfect memory (thanks be to Almighty God for the same.) And calling to mind the un­certain state of this transitory life, and that all flesh must yield unto death, when it shall please God to call: and being desirous to settle things in order, do make this my last Will and Testa­ment, wherein is contained my last Will and Testament in manner and form following; revoking, and abso­lutely annulling by these presents, all and every Testament and Testaments, A special Revoca­tion of a former Will See the next Chapter, Num. 34. Will and Wills hereto­fore by me made and de­clared either by word or by writing, notwith­standing any promise to the contrary, or Clause derogatory in the same; And this to be taken only for my last Will and Testament, and none other▪ [Page 7] First, I bequeath my Soul to Almigh­ty God my Maker, and to Jesus Christ my Redeemer, and to the Holy Ghost my Sanctifier; and my Body to the Earth from whence it came, to be hu­ried in such decent and Christian manner, as to my Executors shall be thought meet and convenient; there to rest until my Soul and Body shall meet again, and be joyned together at the joyful Resurrection, and be made par­takers of the never-fading joys of im­mortality, which God in mercy, through the merits of Jesus Christ alone, hath promised and prepared for all those that truly and unfeignedly repent and believe in him. And touching such Temporal Estate of Goods, Chattels and De [...]ts as the Lord hath been pleased far above my deserts to bestow upon me, I do order, give, bequeath, and dispose the same in manner and form following. Imprimis, I give and be­queath unto my Son Henry Style, when he shall attain the age of one and twen­ty years, the sum of Forty pounds of [Page 8] Observe the difference between these two Be­quests; In the first Case nothing is due till the age of 21 years; but it is otherwise in the se­cond Case, for there it may be recovered by the Executors or Admini­strators of the Childe, though he die before the age of 21 years.lawful mony of En­gland, to be paid to him by mine Exe­cutors hereafter na­med. Item, I give and bequeath to my Son Thomas Style Forty pounds of like money, to be paid to him (by my said Executors) when he shall attain the age of one and twenty years. Item, I give, &c. And lastly, I make, constitute, ordain and appoint my deare and well beloved Wife Mary Style sole Executrix of this my last Will and Testament, to whom I bequeath all the remainder of my Goods and Chattels, moveable and immoveable, after the satisfaction of my Debts, and payment of the Legacies above by me bequeathed. And to her care and tuition also I leave all my Children, and I do A clause whereby the tuition of the Testators Children is committed to the Executor. hereby nominate & appoint my said Wife Tutrix to them [Page 9] and every of them, until such time as they shall severally attain their ages of one and twenty years. In wit­ness whereof I have hereunto set my hand and seal, the day and year first above written.

Peter Style.

9. But no man is tyed to observe this, or any other set form in the making of his Will, for it skills not how it be drawn, so as the Testators meaning can but be found out; nei­ther is it material whether the Testa­ment be written in parchment or pa­per, or the like stuff apt for writing; nor what Language the same be writ­ten in, either Latine, Greek, French, or any other Tongue; nor whether the same be written in Secretary, Ro­man or Court-hand, or any other hand, so that the same may be but read and understood; nor is it mate­rial with what Notes or Characters the same be made, as XX s. for twen­ty shillings, CL l. for an hundred and [Page 10] fifty pounds, 1590 for one thousand five hundred and ninety, with such like; or the Figure (1) instead of the Letter A. or (2) instead of the Let­ter B. &c. or some other more strange Characters; yet it is good enough, if the same by any means can be but read and understood; unless the same Writing be but only a Prepara­tion to the Testament, and not the Testament it self: for then in such Case, though the same may be read and understood; yet it is of no force, and the party shall be said to dye In­testate. Michael. Grass. Thesaur. com. opinion. sect. Test. Quest▪ 10. Swin. part. 4. sect. 25. numb. 2, 3, 4, 5, 6. Justi­nians Inst. l. 2. Tit. de Test. ordinan­dis numb. 12.

10. Words and Sentences also are not of necessity required for the form of a Testament, but onely for the expressing of the will and mean­ing of the Testator; and therefore if the Scribe omit some words by Error, whereby the sence is imperfect: As [Page 11] for Example, 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. [Page 12] 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. [Page 13] 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 be [...]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 [Page 14] 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 Coni [...]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 di [...]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. [Page 16] 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 [Page 17] 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; [Page 18] 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. Quest. 86. num. 11.

18. The third kind of priviledged Testaments, are those which are made to pious uses; as when one gives his Goods to be distributed to poor Or­phans, Widows, Strangers, Prisoners, lame and diseased poor persons, or to Hospitals, Churches, repairing of Bridges, or the Walls of a City or Town, when the same be decayed and stand in need of repairing; and to such Testaments belong many priviledges also. As first, it may be written with strange and unaccustom­ed Characters and Notes, and yet the same shall nevertheless be as effectu­al, as if the same had been written af­ter [Page 19] the usual and accustomed man­ner. Also, if such a Testament be found cancelled, and it is not known whether the Testator did wil­lingly and wittingly cancel the same or no; in this Case it shall be presu­med to have been cancelled unadvi­sedly, and shall take effect notwith­standing, as if it had not been can­celled at all: whereas in other Te­staments the contrary is presumed. And another Priviledge is, That such a Testament is not void for incer­tainty (as other Testaments are;) and therefore if the Testator say, I make the Poor my Executors, or, I Will that my Goods be distributed amongst the Poor; such manner of appointing Executors or Legacies is good. Also if there be two Testa­ments found of divers Tenors, and it doth not appear which is last; in this Case, if one of them be made ad pias causas, that shall be presumed to be last made, and take effect, unless the other Testament be inter liberos, [Page 20] and then that shall be deemed last, & not the Testament ad pias causas. There are several other Priviledges reckoned up by some Authors to belong to this kind of Testament; for Tiraquel. in Tract. De Privilegia piae Causae, reckons up 170 Privi­ledges belonging to such Testa­ment; but most of them are here in England allowed to all Testaments, though they be not made ad pias causas. Franc. Mantic. de conject. ult. voluntat. l. 6. Tit. 3. num. 3. & 43. & l. 12. num. 30. Tit. 1. & Tit. 2. num. 25, 32. Swin. part 1. sect. 16. & part 7. sect. 8. num. 8. & sect. 16. in fin. Tira­quel. de privilegia piae causae, c. 12, 16▪ & 56.

19. Unpriviledged Testaments are those which have not any Freedom or benefit contrary to the common course of ordinary Law, but are tie [...] to such observations as the Law requireth, and hath appointed regularly for all Testaments. Swin. part 1 sect. 17.

20. Now having spoken something of Testaments Solemn and Unsolemn, Written and Unwritten, Priviledged and Unpriviledged; I shall speak a word or two of Wills and Codicils, and so conclude this Chapter.

21. The definition of a Last Will differeth but little from that of a Testament; for a Last Will is thus defined, Ultima voluntas est legiti­ma dispositio, de eo quod quis post mor­tem fieri velit. A Last Will is a law­ful disposing of that, which any one would have done after death. Franc. Mantica de conject. ult. voluntat. l. 1. Tit. 4. num. 18. Swin. part 1. sect. 4.

22. There is also another kind of Will called a Codicil, and is defined after this manner, Codicillus est vo­luntatis nostrae justa sententia, de eo quod quis post mortem suam fieri velit abs (que) Executoris constitutione. A Codicil is a just Sentence of our Will, touching that which any one would have done after his death, without the appointing of an Executor: by [Page 22] force of which last words, a Codicil is made to differ from a Testament; for a Testament can no more consist or be without an Executor, then a Codicil can admit of an Executor. Swin. part 1. sect. 5. num. 2. Franc. Mantica de conject. ult. voluntat. l. 1. Tit. 8. num. Justinians Inst. l. 2. Tit. de Codicill is, num. 2.

23. These Codicils are most com­monly made by the Testator, after he hath made his Testament, wherein he hath forgotten something which he hath a mind to put in; and then it is done by way of Codicil, and annex­ed to the Testament: but whether it be made before or after the Testa­ment, it is to be taken and reputed for parcel thereof, and ought to be performed as well as the Testament; unless being made before the Testa­ment, it appear to be revoked in the Testament, or be contrary to that which is contained in the Testa­ment. Reformatio Legum Ecclesiasti­cum Tit. de Testam. cap. 5. Swin. part 1. [Page 23] sect. 5. num. 11. Justin. Inst. l. 2. Tit. [...] Codicill is, num. 1. Vigel. method. Jur. Civilis, part 4. l. 9. cap. 23. in prin­cipio.

24. When a Codicil is made by one that dieth Intestate, the Legacies therein given, must be paid by him that hath the Administration of the Goods of the Deceased, as if he were Executor. Bro. Abra. Tit. Devis. numb. 35. Swinbor. part 1. sect. 5. num. 10.

25. In some respects Codicils and Testaments are quite contrary to one another; for whereas a man cannot die with two Testaments (because the latter doth always infringe the former, except in some special Cases) yet a man may die with divers Codi­cils, and the latter doth not hinder the former, so long as they be not contrary to one another. Also where two Testaments are found, and it doth not appear which was first, nor which is last; in this Case they are both void, except in special Cases, as [Page 24] is shewed before, Numb. 17, & 18. But if two Codicils be found, and it cannot be known which was first or last, and one and the same thing is given to one person in one Codi­cil, and to another person in an­other Codicil; here the Codicils are not void, but the persons therein named ought to divide that thing betwixt them, by the Civil Law. Mi­chael Grass. The saur. commun. opinion. sect. Codicillus. Swin. part 1. sect. 5. in fine.

CHAP. II.
What shall be a good Testament or Will, and what not.

26. THat Wills and Testaments may lawfully appear, it i [...] necessary that there be sufficient proof, either by writing or by wit­ness; and as to that, know, that two Witnesses are sufficient, if they be without lawful exception. Cowells Inst. p. 118. Waterhouse on Fortesc. fol. 350. Glan. l. 7. c. 6. Bract. l. 1. c. 16. Swin. part 4. sect. 21. numb. 2.

27. That is, if they be not perju­red persons, or persons of infamous life, as Malefactors, or Law-breakers; or Children, Idiots, Lunatick per­sons; or of the Kindred or Alliance, or Tenants or Servants to the party producing them, or Capital Enemies to the party against whom they are [Page 26] produced, or persons who are to reap benefit by their depositions, or such like, &c. Cowel on Litt. fol. 6. Swin. part 4. sect. 21. Maschard. de probat. verb. princ. Conclusio 1168. & verb. Criminosus, Conclus. 469. & verb. Furiosus Conclus. 828. Swin. part 4. sect. 21. numb. 7, 8, 9, 10. Ref. Legum Eccles. Tit. de Testamentis, c. 17. Waterhouse on Fortescue, fol▪ 357 & and 358.

28. But if the exceptions be but small, and such as do but in part di­minish the Witnesses credit, as the exception of friendship, household­servant, or suspition of some small fault, then the number may supply the defect; and so the Testimony of three or four Witnesses, not altoge­ther cleer from those exceptions, is as good as the Testimony of two Wit­nesses without all exception. Fran­cis. Mantica de Conject. ult. volun­tat. lib. 6. Tit. 3. numb. 8. Swin. part 4. sect. 21. numb. 3.

29. And sometimes the Testimo­ny [Page 27] of one Witness is sufficient; as where the Testator in his life-time commits something in secret to some one person (being loth perhaps that any other should know it) and will­eth that that same person shall be credited for the Declaration of his Will; in such case that person alone is sufficient to prove the Contents of the last Will and Testament of the person deceased. Olden de probation, fol. 286. b. Swin. part 4. sect. 21. numb. 4.

30. The Testimony of a Legatary also is allowed in probate of Wills, but not for his or their own Legacies, but for all the rest of the VVill it is good enough. Justin. inst l. 2. Tit. de Test. ordinan. numb. 11. Swin. part 4. sect. 21. numb. 11. Porcius in d. sect. Legatar.

31. But note, if a man in perfect health be demanded, who shall be his Executor, or have his goods after his death (which question is very fa­miliar and common amongst compa­nions) [Page 28] and forth with he names some person, to whom he saith he will leave his goods after his death; This is not to be taken for a Testament, or last Will, neither is that person named to be admitted Executor, nor to have his goods, unless it be proved that the Testator at the time when the words were spoken, had Animum Testandi, that is to say, a full mind and resolute purpose at that time to make his Testament or last Will; and this purpose must be proved by cir­cumstances, as wel as by words; as, that he framed himself very seriously to the making of the same, desiring them that were present to bear witness of his Will, &c. Justin. Inst. l. 2. Tit. de Milit. Testamento, numb. 1. Swin. part 1. sect. 3. numb. 24. Menoch. de Arbitria Judicis, c. 496.

32. Note, that the last Testament doth always make void the first, ex­cept in some special cases, as where the latter is made through just fear, or by cunning and deceitful fraud or [Page 29] flattery, or at the importunate request and desire of another person, who expects to reap benefit thereby, espe­cially if the Testator be very sick at such time, and do it to be at quiet and rest; in these cases the latter Testa­ment shall not make void the former; but there must be Witnesses to prove these things, if the parties concerned intend to make void the latter Testa­ment. Menoch. de Arbitrio Jud. c. 395. numb. 41. Socin. Jun. Consil. 14. & 148. vol. 2. numb. 15. Simo. de Praetis. de In­terpret. ult. voluntat. l. 4. fol. 226. numb. 49. Swin. part 7. sect. 3. Numb. 1. sect. 4. numb. 3. & 6. & sect. 14. numb. 3 & 5. Paris. Consil. 10. l. 3. numb. 4. Noyes Max. pag. 97.

33. Also if the Testator have made his Will, wherein he hath bequeathed several Legacies to his own Children, or to his Brothers, and afterwards makes another Will in favour of o­ther persons; this last Will shall not revoke this first, without express words of revocation of the first Will, [Page 30] as is shewed before in the first Chap­ter, Numb. 17. Mich. 2 Car. 1. Eyres and Eyres Case in Chancery, Cro. 1. part Rep. fo. Swin. part. 1. sect. 15. num. 5.

34. But in other Wills and Testa­ments, the latter doth make void the former; albeit the first were a writ­ten Will or Testament, and the latter but a Nuncupative one, or that there were twenty Witnesses to the first, and but two to the second, and that ipso jure, although there be no men­tion in the second Testament of re­voking the former; unless there be a Clause Derogatory in the former Testament: as where the Testator saith in the first, If I make any Te­stament hereafter, I will that the same shall be of no force; then in such Case it is most safe and convenient in the latter Testament to revoke the first, by saying, I make this last Will and Testament, Notwithstanding that Clause Derogatory in my former, whereby I would that no Will or Testa­ment [Page 31] afterward to be made by me should be of any force. Vasq. de suc­ces. Resoluc. l. 1. sect. 1. num. 26. Pasc. 14 Eliz. Dyer fol. 310. Mich. Grass. Thesaur. com. opin. sect. Testam. Quest. 99. num. 4, 5. Swin. part 7. sect. 14. num. 4. 11, 12, 13, 14, 15, 16, 17, 18. Perk. num. 478. Paul▪ de Cast. Consil. 206. Vol. 1.

35. Also where the Testator hath made two Testaments, a former and a latter, and afterwards lying sick, they are both brought unto him, and being desired to shew which he in­tends shall stand, and he saith, that the first should be his Last Will, or if he take that of the first date, and deliver it for his last Will; then in such Case that Will shall stand, and the other shall be void. Perkins num. 479. Mich. 44 E. 3. fol. 33. Pacis Con­sultum pag. 81.

36. Likewise if an Executor be named in the first Testament, and none in the second Will, then the first Testament shall stand, and the [Page 30] [...] [Page 31] [...] [Page 32] latter shall be added only by way of Codicil. Vigel. Method. Jur. Civilis part 4. lib 9. c. 23. in princip. Swin. part 7. sect. 14 num. 5.

37. Where it is said before, that where Lands are devised, the will must be in writing, and done in the life-time of the Testator; yet if the Clerk be skilful in the Law, and takes Notes from the mouth of the Testa­tor, for the devise of Lands, Tene­ments and Hereditaments, and after­wards proceeds to write the same in Form; but before it be finished or shewed to the Testator, he departs this life; yet this is held and adjudg­ed a good Will in writing, within the Statute of 32 H. 8. to convey Lands, Tenements, or Hereditaments. Mich. 6 E. 6. Sackvil and Browns Case. Dyer, fol. 72.

38. Also a written VVill done in the life-time of the Testator, or by Notes as abovesaid, is good to con­vey Lands, though it be unsealed or unsubscribed, nor no Executor named [Page 33] therein; and such a Will which only concerns the bequeathing of Lands, Tenements, or Hereditaments, ought to be proved in the Chancery. Hill. 22 Car. 1. & Pasch. 23 Car. 1. B. R. Styles Regest. practicale, p. 357. Pacis Consultum, p. 80. Noye's Maximes pag. 97.

39. If the Testator after he hath begun his Will, and before he have finished it, be suddenly strucken with Death or Insanity of mind, or some other impediment, so that he cannot finish the same; or if he have begun the same, and deferreth the finishing thereof till some other time, and in the mean time dieth, or otherwise becometh 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. [Page 34] 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 [Page 35] 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 [Page 36] 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 [Page 37] 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 [Page 38] 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. [Page 39] 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 [Page 40] 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 Pa­rol Codicil shall be put in writing, and affixed to the VVill as a Codicil; and this may as well be done, as a VVill in writing may be revoked by Parol. Hill. 22 Car. 1. & Pasc. 23 Car. 1. in B. R. Styles Regest. Practicale, p. 357. & Pasc. 14 Eliz. Dyer, fol. 310.

51 If the Testator make his VVill by Parol, which is afterwards put by another into writing, and he put more in then the Testator did express; yet it is good, as to so much as can be proved was expressed by the Tasta­tor by Parol, and the rest is void. Pasc. 24 Car. 1. B. R. Styles Regest. Pra­cticale, p. 357.

52. One went beyond Sea, and wrote back a Letter that his Land should go in such manner, and it was adjudged to be a good Will and Devise of his Land. Ahr. Moors Rep. p. 63. pl. 299. Wests Case.

53. If the Testator being of sane Memory, desire another person to set his Hand and Seal to his Will for him, and he does so; this is a good Will, though the Testator did it not himself. Pasc. 1650. B. R. Styles Re­gest. Practicale p. 358.

54. If a Parol Will be put in wri­ting, and is afterwards embezelled, lost, or destroyed; yet the Will is not thereby destroyed, if it can be pro­ved [Page 42] by Witnesses: but if it come in question, whether a Will be good or not, in such Case proof doth not a­vail; for matter of Law is to be decided by the Judges, and not by Witnesses nor Juries: Ad quaestio­nem Facti non respondent Judices, Ad quaestionem Juris non respondent Juratores. Hill. 22 Car. 1. Pasc. 24. Car. 1. B. R. Styles Regist. pract. p. 357,358. Cowel on Litt. fol. 155. b.

55. If a Testament bear date at Cane in Normandy, and be proved in England, it is good enough for the Executor to bring an Action upon. Perkins, numb. 494.

56. Note that a man may dye part­ly Testate, and partly Intestate by the Laws of this Realm, though it's contrary to the Civil Law: and this he may do, not onely in respect of time, but also in respect of goods and place: for if a man have goods in diverse Diocesses, he may make Execu­tors of his goods in one Diocess, and dye Intestate as touching his goods [Page 43] in another Diocess; or, if a man make one Executor particularly of a certain portion of his goods, the Executor is onely so far chargeable with the payment of the Debts and Legacies of the Testators, as the portion of the goods to him al­lotted do extend unto; and as touching the residue of the Testa­tors goods, if there be not another Executor appointed, then for such goods he is said to dye Intestate, and Adminstration may be taken of them. Bro. Executor. numb. 2. & 154. F. N. B. numb. 26. eod. Tit. Plo. [...]o. fol. In Fox and Grieshies Case. Swin. part 4. sect. 18. numb. 4.

CHAP. III.
Who may make a Testament, and who not.

57. EVery person, both man and woman, Christian and Jew, sound or sick, and generally of what Estate or Condition soever he or she be of, hath full power and liberty to make a Testament, or last Will, and may therein dispose of their goods and Chattels; saving such persons as be prohibited by Law or Custom, as hereafter followeth. Mich. Grass. Thesaur. com. opin. sect. Testament. Quaestio 20. numb. 1. Swin. part 2. sect. 1. numb. 1.

58. By the Stat. 34 H. 8. Wills or Testaments made by any person within the Age of twenty one years, of any Mannors, Lands, Tenements, or other Hereditaments, is not good [Page 45] nor effectual in the Law; for till that Age, by the Common Laws of this Realm, they are accounted In­fants. 34, 35 H. 8. c. 5. Wingate Abr. Stat. Tit. Will. numb. 22. Dr. & Stud. l. 1. c. 21. & l. 2. c. 28. Swin. part 2. sect. 2. numb. 1.

59. But a Boy of fourteen, and a Girl at twelve years of Age, by the Civil Law, may make their Wills and Testaments of their Goods and Chattels; and that not onely with­out the authority or consent of their Curator or Guardian, but also with­out the authority and consent of their Parents; and though it be made but in the very last day of fourteen or twelve years, yet it is good e­nough; but before that age it is not good, although the Boy were a Soul­dier, or that the Testament were made Ad pias Causas, or with consent or authority of the Tutor. Mich. Grass. Thesaur. com. opinion. sect. Te­stament. Quaestio 20. Perkins, numb. 503. Cowels Instit. p. 122. Swinbor. [Page 46] part 2. sect. 2. num. 6, 7, 8. Noyes Max. pag. 97.

60. Mad folks and lunatick per­sons, during the time of their Furor or insanity of mind, cannot make a Testament, nor dispose any thing by Will, no not ad pias causas; nay, though they come to their perfect understanding afterwards, yet this doth not make the Testament to take any effect, which was made during such Furor: but if these mad or lu­natick persons have clear or calm in­termissions, then during such time, they may make their Testament, and appoint Executors, and dispose of their Goods at their pleasure; and the Furor going before the making of such Testament shall not prejudice it. Reformat. Leg. Ecclesiastic. Tit. de Testament. cap. 7. Pacis consultum, p. 80. Mich. Grass. Thesaur. com. opin. sect. Testam. Quest. 2. 17. Swin. part 2. sect. 3.

61. Also if a man of sound memo­ry, who was never taken with any [Page 47] Lunacy or Insanity of mind, do make his Testament of his Goods or Lands, and afterwards is taken with Lunacy or Insanity of mind, a little before his death (which often happens through the extremity of their sick­ness) yet this doth not hurt the Te­stament which was made before: or if a lunatick person, or one that is besides himself sometimes, make his Testament, and it is not known whe­ther the same were made when he was of sound mind or no; in this Case, if no Argument of Frenzy or Folly appear in the same, then it shall be conceived to be made in his calme Fit, and so adjudged a good Testa­ment. But on the contrary, if any Folly appear in the same, though it be but two or three words, as if he say, [...] Peter, when his name is John; then it makes the Testament void, as being presumed to be made during the insanity of mind. Mich. Grass. Thesaur. com. opin. sect. Testam. Quest. 21. Vas (que) de succes. progres. lib. 1. sect. [Page 48] 1. num. 90. See Co. 4. lib. Rep. fol. 61. Swin. part. 2. sect. 3. num. 4. 14, & 15.

62 Note that every person is pre­sumed to be of sound mind, unless the contrary be proved; and there­fore those that intend to make void a Testament by reason of insanity of minde, must prove the same impedi­ment; and if it be proved that the Testator was beside himself before the making of the Testament, al­though they do not prove him to be mad at the very time of making the Testament, yet it is sufficient, and it lies on the Executors part to prove that the Testator was of sound mind, not onely to answer to ordinary and usual questions, but that he had a disposing memory, and was able to make his Devises and Bequests with understanding and reason, at the time of making his Testament. Fran­eisc. Mantica de conject. ult. volunt. l. 1. Tit. 5. Maschard. de Probat. verb. Furiosum, Conclus. 824. numb. 10. [Page 49] Vide 41 Eliz. B. R. in Marquess de Winchester's Ca. Co. 6. Li. fo. 23. Swin. part 2. Sect. 3. Num. 6, 7.

63. An Idiot or Natural Fool, that cannot number Twenty, nor tell his Age, nor is able to answer to any or­dinary and usual Question, nor knows what is for his advantage or damage, though it be notorious, nor is apt to be instructed or informed by any o­ther; such an one cannot make a Te­stament, nor may dispose either of his Lands or Goods. F. N. B. de I­diota inquirendo. 34 H. 8. c. 5. Cowels Inst. p. 123. Simo. de Praetis. de Inter. ult. volunt. lib. 2. dub. 1. fol. 4. Swin. part 2. sect. 4. num. 1, 2.

64. But if a man be of a mean understanding, between a Wise-man and a Fool, such an one may make his Testament; unless he be so sim­ple, as that one may perswade him to believe things impossible, as that an Ass can flie, or that in old time Trees did walk, and Birds speak, or the like. Simo. de Praetis. de Inter. [Page 50] ult. volunt. lib. 2. dub. 1. fo. 4. Swin. part 2. sect. 4. num. 3, 4.

65. A Married woman cannot make her Testament of any Mannors, Lands, Tenements or Hereditaments, by the Statute of 34 H. 8. neither can she make a Testament of Goods or Chat­tels without her Husbands license; ex­cept she be a Queen or Empress, or that she were Executrix to some o­ther person: for in such case she may make her Will of such Goods as she hath as Executrix, without his li­cense; and name her Executor, who shall have them to the use of the first Testator; but she cannot give them away as a Legacie: and if she die without Will, yet in such case, such goods as she had as Executrix (of which the property is not altered) shall not go to the Husband, but Ad­ministration thereof shall be commit­ted to the next of kin of the first Te­stator. But in both these cases, the Husband shall have the Profits ari­sing of the same, as Calves, Lambs, [Page 51] and such-like profit of Kine and Sheep. Also if the Wife have Goods by way of Legacie from another per­son, in such case she cannot make a Testament, or dispose of the same, without his license. Note, though the Husband do give license to the Wife to give away part of his goods, yet notwithstanding he may counter­mand her Testament again, either be­fore or after her death, or at least be­fore the Probate thereof. But if the wife make her Testament of his Goods, and the Executors prove the same, and the Husband delivers the Goods to the Executors; then he can­not countermand the Testament, though the wife made it without his license or knowledge: for by this after-act the Law presumes he gave consent at the first. 34, 35 H. 8. c. 5. Bract. l. 2. c. 26. Bro. Devise 34. Testa­ment 21. Executor 11. & Administra­tor 45. Perkins num. 501 & 502. Noys Maxims p. 97. Mich. 2 E. 2. Devise 14. F. N. B. tit. Executor, num. 10. Swin. [Page 52] part 2. sect. 9. Plo. com. fol. 525. Cowels Inst. pa. 124.

66. A Slave or Bondman cannot make a Testament or Will, for that all he hath is his Lords, and he can dispose of nothing. Bract. l. 1. C. 9. num. 3. Fleta li. 1. C. 5. sect. 7. num. 3. & Cowels Inst. pa. 16.

67. But if a Villain make a Testa­ment, it is not absolutely void, but voidable: for if the Lord enter, and seise the Villains Lands and Good [...] before probate of the Will, it make [...] the Devise void; or if he claim the Villain in his life-time, and seize the Goods by word onely, it makes the Devise void. But if neither of these were done by the Lord, before the Executors prove the Will and seize the Goods, then the Testament of the Villain is good in law against the Lord; except it be in case of the King: for if his Villain give or sell his Goods, the King may seize them at any time; for, Nullum tempus oc­currig Regi. Also if a Villain have [Page 53] Goods as Executor to another per­son, he may make a Testament there­of, and appoint an Executor to the first Testator, who shall have the said Goods, and not the Lord of the Vil­lain. Bro. tit. Villenage, 50, 68, 73. Dr. & Stud. li. 2. C. 43. Littletons Te­nures, li. 2. C. 11. & Swin. part 2. sect. 7.

68. A man that is taken captive by those who are open enemies to the King, cannot make a Testament du­ring his captivity: for if he do, though he should escape afterwards, and then die, yet such Testament is void: but if he had made a Testa­ment before he was taken, and then afterwards escape; or though he die during his Captivity, yet in both cases the Testament is good; and so it is if he be taken by those who are not proclaimed enemies, and during his captivity he makes his Testament: or if a man who is imprisoned for Debt do make his Testament during his imprisonment, it is good, unless [Page 54] it be made in favour of those at whose Suit he is imprisoned. Mich [...] Grass. Thesaur. com. opin. sect. Testa­ment, Quaestio 25. Franc. Mant. d [...] conject. ult. Volunt. li. 2. tit. 7. num▪ 2. & Bract. li. 2. C. 16. num. 5. Swin part 2. sect. 8.

69. One that is born Deaf an [...] Dumb, if it appear by sufficient Ar­gument that he understands what [...] Testament is, may be signes make [...] Testament; and so may any on [...] that could have spoken and hear [...] formerly, and is become deaf an [...] dumb by some accident: or if such person can write, then he may writ [...] his Testament with his own hand [...] and so likewise may one do that ca [...] hear, but cannot speak: and if h [...] cannot write, then he may do it by signes and tokens: and one that ca [...] speak, but cannot hear, may als [...] make his Testament, and devise hi [...] goods to whom he pleases. Refor. leg. Eccles. tit. de Testam. C. 7. Swin. part 2. sect. 10.

70. But one that is born both deaf, dumb and blinde, cannot make a Te­stament or Will, because he hath no understanding. Finches law, li. 2. C. 2. pa. 103. Perkins numb. 25.

71. One that is blinde may make a Nuncupative Testament, by decla­ring his Will before a sufficient num­ber of witnesses: but he cannot make his Testament in writing, un­less the same be read before witnes­ses, and then acknowledged by him to be his last Will and Testament: for if he should acknowledge a wri­ting for his last Will, and do not hear it read, this will not make it amount to a VVill in writing. Swin. part 2. sect. 11. & num. 1, 2.

72. He who is lawfully convicted of High-treason, by Verdict, Con­fession, Outlawry or Presentment, cannot make his Testament, or di­spose of any Goods, Lands, Tene­ments or Hereditaments; nay, though he have made a Testament before such conviction, yet the same is void: [Page 56] but if he afterwards obtain the Kings pardon, then he may make a Testa­ment; or if he have made one be­fore conviction, then after such par­don the same becomes good again▪ Cowels Inst. pa. 123. 5 E. 6. C. 11. Swin. part 2. sect. 12.

73. He who is indicted of Felony at the Kings suit, and will not plead to the Indictment, but stands Mute, shall be pressed to death, and for­feits all his Goods, but not his Lands; and so it is said he may in such case make his Testament of his Lands. Swin. part 2. sect. 13. num. 5. Dr. & Stud. li. 2. C. 41. Pulton de pace Re­gis, fo. 216.

74. Those who are indicted and lawfully convicted of such Crimes as are Felony, (as Petty Treason, Mur­der, Homicide, Chancemedly, Bur­glary, Robbery, Theft, Buggery, Rape, &c.) after their conviction can make no Testament, nor dispose of any Lands, Goods or Chattels of their own; nay, if they have made [Page 57] a Testament before, such conviction makes it void, unless they procure the Kings pardon, and be restored to their first condition again: but if one be attainted of Felony onely, he may give away his goods by Deed of Gift, or sell them, before Judgment be pronounced; but for Lands, the Law takes notice from the time of the fact committed and comprised in the Indictment; but it is otherwise in case of Goods and Chattels. Mich. Grass. Thesaur. com. opin. sect. Testament, Quaestio 26. Dr. & Stud. lib. 2. C. 41. Bro. forfeiture, 5, 28, 65 89, 103, 113, 117. Swin. part 2. sect. 13. Stamf. 192. 33 E. 3. tit. 20. Per­kins num. 29, 41. Ass. pl. 31. Cowels Inst. pa. 123 & 124. Dalton fo. 292. C. 110. Vide Co. on Lit. sect. 745. Ra­stal, Forfeiture 7. Wingate Abr. Stat. eod. titulo, num. 5 & 8. Stat. de Ca­tall is Felonum, & 1 R. 3. c. 3. Paseh. 8 E. 4. fo. 4. a. Kitchin Court-leet, fo. 42. a.

75. By our ancient Law, an Here­tick [Page 58] could not make a Testament (after convictian) of his goods and chattels: and if he were delivered o­ver to Lay-mens hands, then he for­feits his Lands also. But see now the Statute of 1 Eliz. c. 1. for by that Statute, the 2 H. 5. c. 7. which gave Forfeiture of goods and lands in case of Heresie, stands now Repealed; so that we have nothing in certain now, but what we receive from the Canon­law. A Relapse into Heresie after Recantation, is fatal. Mich. Grass. thesaur. com. opin. sect. Testam. quaest. 24. Cowels Inst. p. 124. Swin. part 2. sect. 14. Dr. & Stud. li. 2. C. 29. 2 H. 5. C. 7. 1 Eliz. C. 1. Co. 3 part Inst. fo. 43. C. Heresie. Reformatio Leg. Eccle­siasticum, tit. de Test. c. 7.

76. He who hath been condemn­ed, or publickly confessed himself to be a manifest Usurer, and publickly uses the same Trade, and hath exact­ed above Ten pounds in the Hundred for the loan or forbearance of an Hundred pounds for one year, can­not [Page 59] make a Testament of his Goods and Chattels, unless he satisfie or make restitution for the same in his life-time, or enter caution for satisfa­ction to be made after his death. Me­noch. de Arbit. Judic. li. 2. casus 235. Swin. part 2 sect. 16. Fleta li. 2. C. 50. Cowels Inst. pa. 124. Mich. Grass. the­saur. com. opin. sect. Testament, quaest. 33. 13 Eliz. c. 8. Refor. Leg. Eccles. tit. de Testamentis, c. 7.

77. If one make a Testament of his goods or cattel, and afterwards wittingly and willingly kill or hang himself; then such Testament is void; for his goods and chattels real and personal are all forfeited to the King, and all debts due to him by Special­ty, but no debts due to him without Specialty, or upon Simple contract. Stamf. pl Coronae, li. 1. c. 3. Bract. li. 3 c. 2. Cowels Inst. pa. 124. Swin. part 2 sect. 20. Co. 3 part Instit. fo. 54. 3 E. 3 Coron. 301. 8 E. 2. Coron. 420. Pasch. 8 E. 4. fo. 4. a. Dyer fo. 262. Daltons Just. fo. 236. c. 92.

78. If one who is Outlawed in a Personal Action, make his Testament of his goods, and the Executors prove the Testament, and afterwards sue the Debtors of the Testator, who plead Outlawry in the Testator as a Bar; this hath been held as no good Bar, so that before seisure they may sue: but if the King seize the goods as forfeited, though he give them back again to the Executors, yet they shall not be Assetts in their hands to charge them with any debts or Legacies of the Testators. Trin. 37 Eliz. C. B. Rot. 1306: Woolly and Bradwels case. Brownlows 1 part Rep. fo. 55. Mich. 20 Jac. C. B. Bullen and Gervise case. Huttons Rep. fol. 53. Dr. & Stud. li. 1. c. 6.

79. He who is so excessively over­come with drink, as that he is utter­ly deprived of the use of Reason and Understanding, at such time cannot make a Testament: but if he be not clean spent, albeit his Under­standing be a little darkned and ob­scured, [Page 61] and his Memory troubled, yet he may make his Testament in that case. Simo. de Praetis. de Inter. ult. Voluntat. li. 2. dubium 1. solut. 4. num. 22. Swin. part 2. sect. 6.

80. Archbishops, Bishops, Deans, Archdeacons, Prebendaries, Parsons, Vicars, and other Ecclesiastical Mini­sters or Clergie-men, may make their Testaments of all such goods and chattels as they severally enjoy in their own right, and not in the right of their Churches and Ecclesiastical Livings. Perkins num. 496, 497, 498 28 H. 8. c. 11. Mich. Grass. thesaur. com. opin. sect. Testament quaestio 34. Co­wels Inst. pa. 125. Swin. part 2. sect. 26. Dr. & Stud. li. 2. c. 39.

81. The King, however in a capa­city to make a Will, cannot make a Testament, and thereby give away his Kingdom and Crown-Jewels or Regalia from his lawful Heirs to an­other. Fitz. Abr. Devise 5. Ex. 108 Cowels Inst. pa. 125. Swin. part 2. sect. 27.

82. The Queen of England is an exempt person from the King, and may make a Testament; and is of ability and capacity to grant, and to take, to sue and be sued, as a feme sole by the Common Law. Co. on Lit. fo. 134. sect. 200. Finches law, li. 2. c. 1. p. 86. Co. 4 lib. fo. 23. in Clark and Penny [...]hers Case.

83. When one is grown so old, as that he is become a Childe again in his understanding, and is deprived not onely of Reason, but also of Sense almost; or grown so forgetful, (through Age or other infirmity) that he hath forgotten his own Name; such person can no more make a Testa­ment then a Childe. Fran. Mantica de conject. ult. Volunt. l. 2. tit. 15. num. 16. Simo. de Praetis. de interp. ult. Vo­lunt. li. 2. dub. 1. sol. 4. num. 22. Swin. part 2. sect. 5.

84. An Excommunicate person may make his Testament; unless he be excommunicate for Heresie or manifest Usury, or some other cause [Page 63] for the which he is prohibited to make a Testament; or unless he be excommunicate with that great Curse which is called Anathema, and is not inflicted but upon great cause. Swin. part 2. sect. 22. Mich. Grass. thesaur. com. opin. sect. Testament. quaestio 24.

85. By the Civil Law, such as mar­ry within the Levitical degrees, and prohibited to marry by Gods Law, cannot make a Testament, or dispose of any goods or chattels to their children begotten in such Incestuous Marriage; unless it be so much only as will serve for their competent su­stentation or maintenance; or that they be appointed but bare Execu­tors, without any other benefit: or if the Parents were ignorant of the impediment of such Consanguinity or Affinity, then the children born during such ignorance, by the Eccle­siastical Canons are capable of all Legacies, and all manner of Testa­mentary benefits, as legitimate, albeit [Page 64] the parents afterwards should be di­vorced. Observe also, that as the in­cestuous persons aforesaid cannot make a Testament, or dispose of any goods to their incestuous children: so neither can they devise their goods to any other, except it be to their pa­rents, or brother or sister, or uncle or aunt, or to such children as were begotten in lawful Marriage by a for­mer wife, if they had any.

86. Several other persons there are who fall under Ecclesiastical cen­sures, and are prohibited by that Law to make a Testament; but being that they are not deprived of this priviledge by our Common or Sta­tue-Laws (which limit the power of the Ecclesiastical Courts within this Kingdom) I shall omit therefore to mention them; and so conclude this Chapter.

CHAP. IV.
Who may be an Executor, and who not.

87. NOte, that every person may be an Executor, and is ca­pable of a Legacie; saving such per­sons as are prohibited by Law: yea, in some cases those who cannot make a Testament or Will, may be Execu­tors; as a childe in the mothers womb, an Infant, a Married woman, a Bond­man or Villain; and in such case the Villain may have an Action against his own Lord, if he were indebted to the Testator. Lit. lib. 2. c. 11. Bro. Abr. tit. Villenage 68. & tit. Execu­tor. Cowels Inst. p. 129. Glan. lib. 7. c. 6. Old Tenures, tit. Villenage. Fra. Mantica de co [...]. ult. Volunt. li. 4. tit. 8. Swin. part 5. sect. 1.

88. And if the Testator make his [Page 66] own Villain Executor, he doth there­by manumit and free him from Bon­dage. Cowels Inst. p. 13. Bract. l. 4. C. 21. Co. on Lit. fo. 136.

89. Note, that if he who is named Executor be an Apostata, or an He­retick, either at the time of the making the Testament, or at the time of the death of the Testator, or at the time when he would undertake the Executorship; in all these cases he is to be excluded, by the Civil Law. Sichard. in Rubr. de Haered. Instit. C. num. 5. Mich. Grass. the­saur. com. opin. sect. Instit. quaest. 28. Swin. part 5. sect. 2, 3.

90. He who is convicted of Trea­son or Felony, is incapable of an Executorship or Legacie: but if he were attainted of Felony, and after­wards admitted to his Clergie, then he may be an Executor, &c. Mich. Grass. thesaur. com. opin. sect. Inst. quaest. 5. Labrig. des Cases edit. anno Dom. 1599. fo. 180. num. 13. Swin. par. 5. sect. 4.

91. An Outlawed person, so long as he standeth in that case, is not to be admitted to the Executorship, nor can sue for his Legacie: but though the Ordinary do not admit him, yet if he shall Administer as Executor, because it is to the use of another, it is held to be good in Law. But if the Testator bequeath the re­sidue of his goods, or some Legacie, to the Executor being an Outlawed person, the same is forfeited and con­fiscate by force of the Outlawry. Dr. & Stud. li. 1. C. 6. & li. 2. C. 3. Labrig. des Cases edit. anno Domini 1599. tit. Execut. fol. 179. Swin. part 5. sect. 5.

92. An unlawful College (that is, such Companies, Societies, Fraterni­ties, and other Assemblies whatso­ever, not confirmed nor allowed by Authority for a lawful Corporation) cannot be Executor. See afterwards num. 99. Perkins sect. 505 & 510. 9 H. 6. fo. 23. Swin. part 5. sect. 9.

93. Libellers, manifest Usurers, [Page 68] Sodomites, and other criminous per­sons, who are forbidden to make a Testament, can receive no benefit by the last Will or Testament of ano­ther person: for it is a common re­ceived Conclusion, That he that can­not make a Testament or Last Will, by reason of some Crime by him committed, the same person is inca­pable of any Legacie of goods dis­posed by the last Will or Testament of another. Jul. Clar. sect. Testament, quaest. 43. num. 2. Vasq. de success. pro­gress. li. 1. sect. 2. num. 18. Swin. part 5. sect. 10, 11. Reformat. leg. Eccles. tit. de Test. cap. 14.

94. A Recusant convicted at the time of the Testators death, or at the time of granting Administration, cannot be Executor nor Administra­tor. Wingate Abr. Stat. tit. Crown, num. 134, 141. 3 Jac. c. 5.

95. If the Testator intending to make John at Style Executor, say, I make John at Noke my Executor; in this case neither of them is to be Exe­cutor: [Page 69] for John at Style is excluded, because the Testator never spoke it; and John at Noke is excluded, be­cause the Testator never thought it. Swin. part 7. sect. 5. num. 2.

96. Or if the Testator say, I make my cousin John at Style my Executor, if John at Style be not his cousin, he cannot be Executor, unless the Te­stator were wont commonly to call him cousin. Michael. Grass. the saur. com. opin. sect. Instit. quaestio 9. num. 4. Swin. part 7. sect. 5. num. 4.

97. Also if the Testator say, I make John at Style my Executor, and there is two of that name, neither of them shall be admitted; unless one of them were of the Testators familiar acquaintance, or his kinsman, and the other a stranger; for in such case the stranger shall be excluded, and the other admitted. Simo. de Prae­tis. de Interpretatione ult. Volunt. l. 1. fo. 97. num. 1, 3, & 100. Fran. Mantic. de conject. ult. Volunt. li. 8. tit. 4. num. 5. Swin. part 7. sect. 8.

98. And if both of them be of the Testators acquaintance, or both of them kinsmen; then he which is of the greater acquaintance, or nearer of kin, shall be admitted, and the other excluded: and in such case, he shall be judged to be nearest of kin, to whom Administration should have been committed if the Testator had died Intestate. Fran. Mantica de conject. ult. Volunt. li. 4. tit. 6. num. 3, 4. Simo. de Praetis. de interp. ult. Volunt. li. 1. fo. 96. num. 9. Swin. part 7. sect. 8. num. 3, 4.

99. If the Testator make the Poor his Executors, giving them the resi­due of his goods, this disposition is not void by 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 [Page 71] 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. [...]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 [Page 72] 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 [Page 73] 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 [...]ereditaments; and such Bastard may sue for the same, [Page 75] 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. G [...]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, [Page 76] and receive no benefit by the Testament; in such case they be ad­mitted Executors to their own natu­ral parents. Simo [...] de Praeti [...]. de in­terp. ult. Volunt [...] 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 Statute­Laws, (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 a [...] 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 [Page 78] 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 a Testament; and the Administration of the goods, with such Codicil or Will annexed, shall be committed to the next of kin of the party deceased, as of one dying Intestate. Justin. Instit. l. 2. tit. de Legacies, N. 34. Swin. part 4. sect. 2.

111. But if an Executor be named; though no Legacie be left, or Devise made, yet such disposition is a Testa­ment, whether the same be Solemn or Unsolemn, Written or Nuncupa­tive, Priviledged or Unpriviledged: and in this case the Ordinary cannot commit the Administration of the dead mans goods, as of one dying Intestate, if such Executor be capa­ble and willing to undertake the Exe­cution [Page 79] of the Testament. Bro. Abr. tit. Execut. F. N B eod. tit. Swin. part 4. sect. 2.

112. And as to the appointing of an Executor, it may be done either simply or conditionally; or from a certain time, or to a certain time; or universally, or particularly; or in the first, second, third, or fourth de­gree, &c▪ and [...]stly, one or divers may be appointed Executors. Bro. tit. Executor, N. 2, 9, 13, 24, 38, 117, 155. Dyer fo. 3. Cowels Inst. p. 129.

113. If the Testator say, I make A B my Executor, or, I institute A B my Executor, or, I will that A B be my Executor, or, I desire A B to be my Executor, or, A B shall be my Exe­cutor; these and such-like words make a simple nomination of an Executor, where no condition is an­nexed by the Testator: and it is not material in what part of the Testa­ment the Executor is appointed; for the Law regardeth not so much the form or the words, as the meaning of [Page 78] [...] [Page 79] [...] [Page 80] the Testator. Mich. Grass. the saur. com. opin. sect. Legatum, quaestio 43. N. 2. & sect. Institutio, quaestio 1 & 14. Swin. part 4. sect. 4. num. 2, 3, & 11.

114. Therefore if the Testator say, I commit all my goods to the disposition of A B; or, I commit my soul and all my goods to the hands of A B; or, I make A B Lord of all my goods; or, I make my wife Lady of all my goods; or, I leave all my goods to A B; or, I make A B Le­gatary of all my goods; or, I leave the residue of all my goods to A B: in these cases it is presumed that such person is intended to be made Exe­cutor, by the Testator: for it is not always necessary to express the word Executor, neither hath every Testa­tor skill so to do: therefore if the Testator write after this manner: In all my goods moveable and unmove­able I make A B, though the Testa­tor do not adde Executor, yet it is to be understood and supplied Bro: tit. [Page 81] Executor, 98. Mich. Grass. Thes. com. opin. sect. Instit. quaestio 14. Swin. part 4. sect. 4. num. 4, 5. Franc. Mantica de conject. ult volunt. li. 4. tit. 3. num. 5 & 8.

115. If the Testator say, I make A B my Executor, if C D will not; in this Case C D is presumed to be Ex­ecutor, and may be admitted, if he please, and exclude the other. Or, if the Testator supposing his Childe or Friend to be dead, say in his Will, Forasmuch as my Child or Brother is dead, I make A B my Executor: In this case, if the Childe or other Person be alive, whom the Testator imagined to be dead, then he that is named Executor shall not be ad­mitted to the Executorship, but the Childe, or other Person, whom the Testator thought to have been dead. Franc. Mantica de conject. ult. volunt. li. 4. tit. 4. Swin. part 4. sect 4. num. 6.

116. When the Testator doth add something to the assignation of an Executor, whereby the effect of the [Page 82] disposition is hindred or suspended, and dependeth upon some future e­vent, then such assignation of an Ex­ecutor is conditional: and there are divers words whereby the dispo­sition of the Testator is made condi­tional; as if, when, whiles, whensoe­ver, wheresoever, and several other, &c. M [...]h. Grass▪ Th [...]s com. opin. sect. Legatum, quaestio 46. Franc. Mantica de Conject. u [...]t. volunt. li. 10. tit. 5.

117. And as there are divers words which make a conditional dis­position, so there are divers sorts and divisions of conditions; whereof some necessary, some impossible, some pos­sible or indifferent: when the condi­tion is extream, that is to say, either necessary or impossible; such a con­dition hindereth not the Executor o [...] Legatary, but that he may be admit­ed to the Executorship, or recove [...] the Legacie, as if such condition ha [...] not been at all expressed. Justin [...]s [...]it. li. 2. tit. de Heredibus Instituen­dis, num. 10. Swin. part 4. sect. 5. num. 4▪ & sect. 6 num. 2.

118. But when the condition is not extreme, but indifferent or possible, then it must first be fulfilled, before the Executor be admitted, or the Legatary recover his Legacie: but there are divers limitations to both these Rules, as will appear by the se­veral cases hereafter mentioned in this Chapter. M [...]h. Grass▪ Thesaur. com. opin. sect. Legat. quaestio 52. Swin. part 4. sect. 6 num. 4.

119. If the Testator make A B his Executor, or give him an hundred pounds, if, or when his Son dyes; here the Executor or Legatary can­not obtain the Executorship or Lega­cie till such a thing happen, but must wait the event of the condition. Paul. de Castr. in li. extraneum, li. 1. cap. de Hered. Instituendis. Swin. part 4. sect. 6.

120. If the Testator make A B his Executor, or give him an hundred pounds, if he marry his the Testators Daughter, supposing her to be living, whereas she is dead; in this case, [Page 84] though the condition be impossible, yet because the Testator did think her to be living, and therefore the con­dition possible, A B in this case cannot be Executor, nor obtain the Legacie: Or, if the Daughter were living, but dyed before Marriage, in such case it is all one; but if she were living, and afterwards did refuse to marry, yet notwithstanding A B might be admitted to the Executorship, or ob­tain the Legacie. Franc. Mantica de conject. ult. volunt. li. 2. tit. 16. num. 23. Menoch. de praesumpt. li. 4. fol. 706. num. 40. Swin. part 4. sect. 6. num. 9, 14, 15.

121. But if the Testators Daugh­ter were willing afterwards to marry with A B, before he have obtained the Executorship or Legacie, and then he refuseth her; in this case he ought not to be admited to the Exe­cutorship, or obtain the Legacie, unless after her refusal at first, and before her willingness he be married to another woman, or have obtained [Page 85] the Executorship or Legacy, and is possessed thereof; for then her re­pentance comes too late. Franc. Mantica de conject. ult volunt. li. 11. tit. 18. num. 30, 38. Menoch. de prae­sumpt. li. 4. fol. 183. num. 29. Swin. part 4. sect. 10.

122. Also if the Testator make A B his Executor, or give him 100 pound if he marry his Daughter, and he refuses to marry her; here he cannot be admitted to the Executor­ship, or obtain the Legacie, although afterwards he be willing to marry her, and then she will not marry him; unless that at such time when he re­fused, he were not of sufficient age to marry: for his dissent at that time, when he could not consent, doth not [...]inder him, nor is it a breach of the condition. Mich. Grass. thesaur. com. opin. sect. Legatum, Quaestio 46. num. 16. Menoc. de Praesumpt. li. 4. fol. 1698. num. 22. Swin. part 4. sect. 8.

123. If one make A B his Execu­tor, or give him 100 pounds, if he [Page 86] erect a Monument within three days after the Testators death: in this case, if the Executor or Legatary do perform the same with as much speed as is possible, it is sufficient, though it was not done within three days. Swin. part. 4. sect. 6. num. 11.

124. If the Testator charge his Executor, to whom he hath given all the residue of his Goods, That if he do not touch the Skie with his finger, or kill his Father, to pay then to A B 100 pounds: in this case he is not bound to the performance, for such Legacie to A B is void. Reformatio Legum Eccles. tit. de Testamentis, C. 15. pag. 135. Swin. part 4. sect. 6. numb. 12.

125. Where the Testator makes thee Executor, or gives thee 100 pounds, if thou pay 10 pounds to C D before a certain time; within which time C D dyeth, and then thou payst the 10 pounds within the time to his Executor, or Administrator▪ in this case, because thou didst not pay the [Page 87] 10 pounds to C D himself, thou canst not be Executor, no [...] obtain the Le­gacie. Franc. Manti [...]a de conject. ult. velunt. li. 11. tit. 17. num. 25. Swin. part 4. sect. 7.

126. But if thou be made Execu­tor, or 100 pounds is bequeathed to thee, if thou pay unto the Testators Son (being an Infant) 10 pounds; in this case, if thou pay to the Childes Tutor, it is a sufficient performance of the condition. Mich. Grass. the­saur. com. opin. sect. L [...]gatum, quaestio 52. Francise. Mantica de conject. ult. volunt. li. 11. tit. 17. num. 29. Swin. part 4. sect. 7.

127. Also if the Testator make thee Executor, or give thee 100 pounds, if thou go to Church on Easter-day; and when the day comes thou art willing to go, but a [...]t not able to do it, by reason of overflowing of wa­ters, or some other necessary impedi­ment: in this case notwithstanding thou shalt be admitted to the Execu­torship, and mayst recover the Le­gacy, [Page 88] as if thou hadst gone to the Church that day: but if at the day thou wert going to the Church, and by the way committest some crime, whereupon thou art arrested and stayed; in this case thou shalt not be admitted to the Executorship, nor recover the Legacie, because thou wert the cause thy self wherefore the condition was not performed, and the other was Actus Dei. Minsing. in sect. penult. Inst. de Haered. num. 2. Franc. Mantica de conject. ult. Volunt. li. 11. tit. 16. num. 24. Swin. part 4. sect. 8.

128. If the Testator make thee Ex­ecutor, or give thee 100 pounds if thou marry his Daughter within a Moneth; and another person doth hold her purposely from thee, that thou canst not marry her within the time; yet in this case the condition is reputed to be performed by reason of thy willingness, and thou mayst obtain the Executorship or Legacie: but if such person doth not detain [Page 89] her purposely, but is ignorant of the Testators Will, then in such case the condition is not taken to be perform­ed. Franc. Mantica de conject. ult. Volunt. li. 11. tit. 16. num. 22. Swin. part 4. sect. 8. num. 19.

129. If the Testator make thee Executor, or give 100 pounds if thou bury his body within the Cathedral Church of St. Peters in York, and the Testator afterwards dyeth Excom­municate, for which his Sepulchre is denyed, so that thou canst not bu­ry him there; yet notwithstanding, because it was not thy fault, but the Testators, thou mayst therefore ob­tain the Executorship or Legacie. Sichard. in li. 1. cap. de Inst. & Sub­stitut. num. 1. Swin. part. 4. sect. 8. num. 18.

130. If the Testator make his Wife Executrix, or give her 100 pounds if she abideth with his Children; in this case, if she enter into bond to per­form the condition, or else to make restitution, she may then be admit­ted [Page 90] to the Executorship, or obtain the Legacie. Paul. de Castr. in d. li. Mutianae, sect. So [...]rus. Simo. de Prae­tes. [...]e Interp ult. volunt. li. 5. fol. 42. Interp. 2. dub. 1. num. 24, 25. Swin. part. 4. sect. 9. Reformatio Leg. Ec­cles. tit. de Testam. cap. 31.

131. Also if the Testator make thee Executor, or give thee 100 pounds, if thou never play at Cards or Dice, or, if thou never give a­way thy Lands: in such case, entring into sufficient Bonds to perform the condition, or else to make restitution, thou mayst then be admitted to the Executorship, or obtain the Legacie. Paul. de Castr in d. L. Mutianae. Simo. de Praetis. de Interp. ult. Vol. li. 5. Interp. 2. dub. 1. numb. 25. Swin. part 4. sect. 9.

132. But if the Testator make thee Executor, or give thee 100 pounds, if thou never play at Cards or Dice, or, if thou do not at any time give away thy Lands to A B; here thou canst not be admitted to the Executor­ship, [Page 91] nor obtain the Legacie, until the condition be brought into that state, that it cannot be infringed. Gloss. in d. L. Mutianae, Swin. part 4. sect. 9. num. 14.

133. Those conditions which do impugn and hinder that liberty which every Testator ought to have by the Law in the making of his Will, are accompted unlawful; therefore if the Testator make thee his Execu­tor, or give thee 100 pounds if thou shalt make him thy Executor, or give him 100 pounds in thy Testament; or, if the Testator make thee Execu­tor, or give thee 100 pounds, if A B will; or, if the Testator make such a person Executor, or give him 100 pounds whom thou wilt appoint: in these cases, though thou name one to be Executor, or, that A B will that thou be Executor, or have the Legacie; yet thou shalt not be ad­mitted to the Executorship, nor have the Legacie, because by such means that free liberty which every Testa­tor [Page 92] ought to have in the making of his Testament might be taken from him, and he deprived of that privi­ledge; therefore such dispositions are said to be cap [...]ious. Sichard. in li. Ca­ptorias, c. de Mil. Test. num. 6. Mich. Grass. thesaur com. opin. sect. Inst. quaestio 18. Swin. part 4. sect. 11.

134. But if the Testator make thee Executor, or give thee 100 pounds, if A B shall esteem it convenient; in this case, if A B esteem it convenient thou be admitted Executor, or have the Legacie of 100 pounds, then thou art to be admitted to the one, or mayst obtain the other: or, if the Testator make one of his Servants his Executor, whom thou shalt chuse; in this case him whom thou shalt chuse of the Testators Servants, shall be Executor. Note the diver­sity of these two Cases, from the Cases last going before. Mich. Grass. thesaur. com. opin. sect. In­stit. quaestio 18. num. 6. Swin. part [...]. sect. 11.

135. If the Testator make thee Executor, or give thee an hundred pounds if thou never marry, or if thou marry according to the appoint­ment or consent of some other per­son; the first of these Conditions is unlawful, because it forbids Marriage wholly; and the second is unlawful, because it is referred to another per­son to make choice for thee, who perhaps may chuse such an one as it is not fit or lawful for thee to marry with her: therefore in the first Case thou mayst be admitted to the Exe­cutorship, or obtain the Legacie, as if no such Condition had been: and in the second Case, thou mayst make choice of a woman thy self, (with­out the appointment of the other person) and marry her; and then thou mayst be admitted to the Exe­cutorship, or obtain the Legacie, but not before Marriage. Fran. Mantica de conject. ult. Volunt. li. 11. tit. 19. Covar. Epitom. de Sponsal. c. 2. sect. 9. num. 11. Swin. part 4. sect. 12. Mich. [Page 94] Grass. thesaur. com. opin. sect. Legat. quaestio 50. num. 9.

136. But if the Testator make thee Executor, or give thee an hundred pounds, if thou dost not marry be­fore the age of one and twenty years, or if thou dost not marry a widow, or such or such a woman, or if thou dost not marry in the citie of York; in these Cases if thou break the Con­dition, then thou losest all thy inte­rest as to the Executorship or Le­gacie. Fran. Mantica de conject. ult. Volunt. li. 11. tit. 19. num. 8, 9. Swin. part 4. sect. 12.

137. Also if the Testator make thee Executor, or give thee an hun­dred pounds, if his daughter do not marry; in this Case, if she die un­married, thou art to be admitted to the Executorship, or obtain the Le­gacie: but if the Condition were that thou shouldst be Executor, or have an hundred pounds, if thy daughter did never marry; in this Case, though she die unmarried, yet [Page 95] thou art not to be admitted to the Executorship, or obtain the Legacie, because it shall be presumed that thou d [...]dst perswade and hinder thy daughter from Marrying; and there­fore to prevent such Fraud, the Law doth reject such Condition. Fran. Mantica de conject. ult. Volunt. lib. 11. tit. 19. num. 5. Swin. part 4. sect. 12.

138. If the Testator make thee Executor after the expiration of five years after his death, or he doth make thee Executor for and during five years after his death; this Assigna­tion is lawful, and the Ordinary may commit the Administration of the Deceaseds goods in the mean time to the next of kin; during which time, the act of the Administrator is good, and cannot be avoided by the Executor afterwards: and the Ordi­nary may also commit the Admini­stration of the Deceaseds goods un­administred by the Executor, after the expiration of the time of the Ex­ecutorship, where thou art appointed [Page 96] Executor but for a time. Bro. tit. Administr. 45. tit. Exec. 155. Plo. com. in Griesby and Foxes ca. Swin. part 4. sect. 17.

139. If the Executor make his wife Executrix; and if she will not or cannot be Executrix, then he maketh his son Executor; and if his son be not Executor, then he maketh his sister Executrix; and if she be not Executrix, then he maketh his bro­ther Executor: in this Case, the Te­stator is said to make degrees of Ex­ecutors; and in this example there are four degrees of Executors. And observe always, the Executors in the first degree (as the Wife is here) is said to be instituted, and all the rest substituted. Mich. Grass. thesaur. com. opin. sect. Substit. quaestio 1. Swin. part 4. sect. 19.

140. Note also, that it is lawful for the Testator to make as many de­grees of Executors as he pleaseth; and he may substitute into the place of one Executor, either one or more [Page 97] and into the place of many Execu­tors he may substitute one alone, or he may substitute to every Executor one, or one of them to another. Ju­stin. Instit. tit. de vulgari substitu­tione, num. 1, 2. Swin. part 4. sect. 17. Cowels Inst. pa. 131.

141. But if the Testator do insti­tute divers Executors, substituting one or more to them; so long as any of them which was first instituted may be Executor, the substitute is not to be admitted, unless the Testa­tor do appoint to every such Execu­tor a substitute; for then any one of these first instituted Executors, not being able, or refusing to be Execu­tor, his substitute is then to be admit­ted with the rest of the Executors first instituted; whereas otherwise any one of the first instituted Execu­tors in the first degree, lawfully un­dertaking the Executorship, all the substitutes are excluded: and in such case, if the Executor afterwards dye intestate, then the Administra­tion [Page 98] is to be committed of the rest of the goods of the Testator deceased, not administred by the Executor, ex­cept in some special cases. Mich. Grass. thesaur. com. opin. sect. Sub­stit. quaestio 9. Repam. in li. 1. de vulgo Substit. num. 185, 187. Swin, part 4. sect. 19.

142. If the Testator make thee Executor if thou give ten pounds to A B; and if thou do not, then he doth appoint another to be Execu­tor: though thou refuse to give ten pounds to A B, yet cannot that other be Executor, unless he give ten pounds to A B, because this conditi­on of giving expressed in the institu­tion, is understood to be repeated in the substitution. Menoch. de prae­sumptio 177. num. 28. Swin. part 4. sect. 19.

143. Note that every one may ap­point as many Executors as he lists▪ so that the number be not infinite, as to say, I make all the men in the world my Executors: for such an Assign­ment [Page 99] (being an Argument of insanity of the minde) is void, at least in ef­fect. Mich. Grass. thesaur. com. opin. sect. Instit. quaestio 13.

CHAP. VI.
Of appointing Tutors, and some few things touching Childrens Por­tions.

144. NOte, that every one, who may be an Executor, may be a Tutor; but no Tutor may inter­meddle as Tutor, until he be con­firmed by the Ordinary; and where one that is named Tutor is Lunatick, or absent beyond Sea, in such like cases the Ordinary may appoint a­nother during such impediment: Al­so it is the custom of several places, that when divers are appointed Tu­tors, there in such case one alone may Administer, when the other cannot [Page 100] or will not intermeddle with the Tu­torship Swin. part. 3. sect. 10, 12. Cowels Inst. pag. 31.

145. And it is also the custom of several places, that if the Father ap­point not a Tutor by his Will to his Children, then the Mother by her Will may appoint one; and if nei­ther Father nor Mother appoint one then a Stranger (if he make the Child his Executor) may appoint one; and if there be no Tutor Testamentary then the Ordinary may appoint one Fleta, li. c. 9. Swin. part 3. sect. 9▪ Vide Co. 3. li fol. 38. Cowels Inst. pa. 30, 41. Noyes Maximes, pa. 105.

146. Now as to the appointing o [...] Tutors, it matters not by what form of words they are appointed, so that the Testators meaning can but ap­pear; nor in what Language the Tu­tor is assigned, whether in English▪ Latine, Greek, or any other Tongue Swin. part 3. sect. 12. Socin. Jun. Consil. 83. Vol. 1.

147. It was the custom of many [Page 101] places formerly, that a Boy after he had accomplished the age of fourteen years, and a Girl after she had ac­complished the age of twelve years, might then chuse their own Tutors if they pleased, and refuse the Tu­tors appointed them by their Fathers Will; but now by the Statute of 12 Car. 2. cap. 24. every Father, whe­ther he be of the age of twenty one years or under, may by Deed exe­cuted in his life-time, or by his last Will and Testament in Writing, de­livered in the presence of two or more credible Witnesses, dispose of his Children under the age of twen­ty one years, and not married at the time of his death, for and during such time as they shall remain under the age of twenty one years, or any lesser time, to the custody and tuiti­on of any person or persons in pos­session or remainder (Popish Recu­sants excepted) and such dispos­session of such Children, since the 24 of Febr. 1645, or hereafter to be [Page 102] made, shall be good against all and e­very person and persons claiming any such Childe or Children, as Guardian in Soccage or otherwise. Litt. li. 2. cap. 5. Swin. part 3. sect. 11. Vide Noyes Max. pag. 105. & Cowels Inst. pag. 33. 12 Car. 2. cap. 24.

148. And such person to whom such Children shall be disposed or de­vised, may have an Action of Ravish­ment of Ward, or Trespass against such person as shall wrongfully take away or detain such Child or Chil­dren, for the recovery of them, and recover damages for the same in such Actions, for the use of such Child or Children; and they are also im­powred by the same Act of Parlia­ment, to take into their custody, to the use of such Child or Children, the profits of all the Lands, Tenements and Hereditaments of such Child or Children, and the custody and ma­nagement of their Goods, Chattels and personal Estate, until the age of twenty one years, or lesser time, ac­cording [Page 103] to the Parents disposition; and may bring an Action in pursu­ance thereof, as by the Law Guar­dian in Soccage might do. 12 Car. 2. cap. 24.

149. Note, that every Tutor ought to take care, that his Pupil be honest­ly and vertuously brought up, and must provide for him Meat, Drink, Apparel, Lodging, and other neces­saries according to his quality and condition, and ought to dispose of his Pupils Goods and Chattels to the Pupils best advantage, in selling of such Goods as will not keep without damage, and preserving of the rest till the Pupil come of age: And to this intent, it is the custom in many places, especially within the Pro­vince of York, that the Tutor at the Entry of his Office makes a true In­ventary of all the Goods and Chat­tels of his Pupils, and doth enter in­to Bond with Sureties before the Or­dinary, to make a just accompt; and then he is admitted and confirmed, [Page 104] and may seize upon the body of the Pupil, and take possession of his Goods. Bro. tit. Guardian, F. N. B. fol. 118. b. Swin. part 3. sect. 13. and Cowels Inst. pag. 49.

150. Formerly there were several Ages to be taken notice of both in Boys and Girls, when they should be out of Tutorship; as, if a Boy were in Ward, by reason of Lands held in Knights service, he could not be out of Wardship till twenty one years of Age; but in other cases at fourteen years of Age he might chuse a new Tutor, if he liked not his old, and might call his old Tutor then to ac­compt: and so a Wench at twelve years of age might chuse her Tutor, unless she were in Ward by reason of Lands held in Knights service, as a­foresaid; and then she was to con­tinue in Wardship till sixteen years of age, unless she were fourteen at the death of her Ancestor; and then she was free, and might chuse her Tutor: but now these Wardships [Page 105] are quite taken away by the 12 Car. 2. and every one may dispose of his Children to whom he pleaseth, observing the Rules aforesaid, in number 147. Litt. li. 2. cap. 4. Brac. li. 2. cap. 37. num. 3. Bro. tit. Guard. 7. 35 H. 6. fol. 52. Co. Litt. fol. 78. Fleta, li. 1. cap. 12. West. 1. cap. 22. Mert. cap. 6. Co. 2 part Inst. fol 90 and 203, 135, 136. Stat. Marlbr. cap. 17. Cowels Inst. pag. 37 and 45. Swin. part 3. sect. 14. F. N. B. 143.

151. Note that there is a general custom within the Province of York, and in several other places, that there is due to the lawful Children of eve­ry man, being an inhabitant or hous­holder within the same Province, (and dying there, or elsewhere) a fi­lial or Childes part and portion, which is sometimes a third part, and some­times an half part of the Fathers cleer moveable Goods, as hath been afore­shewed, unless the Child be heir to his Father, or were advanced by him in [Page 106] his life-time; upon which excepti­ons hereafter follow several observa­tions. Lindwood in C. Stat. de Te­stament. li. 3. Provinc. Constit. Cant. Brac. lib. 2. c. 26. F. M. B. de Rat. part honor. Swin. part 3. sect. 18.

152. As, if the Father should by his last Will and Testament forbid his Child to have any portion of his Goods, such Will in such Cases is void, and the Child may notwith­standing recover his filial part or por­tion: also, if the Father should le [...]ve his Child but twenty pounds, when by the rate of the Inventary his part comes to an hundred pounds; here he may refuse the Legacie, and recover his full portion, notwith­standing the Will: or, if the Father should impose any condition upon the said portion, as to be paid seven years after his death, or the like; yet the Child may sue for it presently after his Fathers death, and recover it before the seven years be out; for it is presently due upon the Fathers [Page 107] death, notwithstanding his Fathers Will to the contrary: and if the Father by his Will should bequeath the Por­tion after the Childs death to any o­ther person, in such case the Will is void, and the Portion shall go to the Executors or Administrators of the Child after his death: But I sup­pose it the Father leave the Child a far greater sum then by the rate of the [...] Inventary the Childes part would come unto; in this case, the Father may impose what condition he pleaseth upon it, and the Child must either take it with the condition annexed, or otherwise he may refuse it, and stand to his Childs part with­out condition annexed to it. Swin. part 3. sect. 18. num. 4, 5, 6, 7 & 8.

153. Also, if a man have a Son or Daughter married in his life­time, who hath a Child or Chil­dren, and then dyes, and afterwards the Grand-father dyes; in this case the Grand-children shall recover such part of the Grand-fathers [Page 108] Goods as should have been due to their Father or Mother for their Childes Portion if they had lived. Reformatio Legum Eccles. tit. Test. cap. 10.

154. If the Father leave a Legacie to his Child, being neither Heir, nor advanced by him in his life-time, and do not mention whether it shall be in lieu and recompence of his filial portion or no; in such case, if it be as much or more in quantity then the filial portion extends unto by the rate of the Inventary, or if it want but a very little thereof, then it shall be presumed to be given in lieu of his Portion; but if the Legacie be very small, then the Child shall both re­cover the said Legacie, and his filial Portion too. Menoch. de Praesumpt. li. 4. Praesumptio 109. num. 6, 26 and 110. Swin. part 3. sect. 18. num. 9.

155. Where the Child is Heir to his Father in Fee-simple or Fee-tail, though the Lands be but of very [Page 109] small value in regard of the perso­nal Estate of his Father, yet he is thereby barred from having any filial Portion, by the custom of the Province of York, and some other places: yea, although he be but Heir in reversion, or hold Lands as Heir which are but Mortgaged with pow­er of Redemption upon payment of such a sum of money at a certain day; yet during such holding, till the condition be performed, he is barred of his filial portion; but if he have onely copy hold-lands after his Fathers death, in such case he is not barred from the recovery of his filial Portion. Dyer, fol. 124. pl. 38. Swinbor. part 3. sect. 18. and the opinions of Sir Tho. H [...] ­s [...]oth, Doctor of the Civil Law, and Sir Jo. Savile, one of the Ba­rons of the Exchequer, Judge of Assize at York 1604, cited by Mr. Swinborne in his Marginal Notes.

156. If the Father bestow or give any thing to a man of Trade, to take his Son an Apprentise, and to teach him his Trade; or bestow any thing upon a School-master or Tutor in the Universities of Oxford or Cambridge, for the increase of his Childs know­ledge in Learning; or buy an Ad­vowson or Ecclesiastical Benefice or Dignity, and afterwards presents his Son to it; or the Son being much indebted, the Father pays off his debts, or buys an Office and bestows it upon his Son; or, if any other but the Father bestow a preferment on his Son, though it be never so much; yet none of all these shall be accounted such preferment or ad­vancement, as to bar the Child from the recovery of his filial Portion. Claudius Battandier, Tract. de Legi­tima. cap. 12. num. 19, 20, 21, 28, 22, 31. Swin. part 3. sect. 18.

157. But it is said by some, that if the Father bestow a Lease upon his Child, or grant to him an Annuity for [Page 111] life, out of his Lands; and though the Child be to reap no benefit by these, during, his Fathers life, but af­ter his death; yet it's held for a pre­ferment, because it was assured to him in his Fathers life-time. Swin. part 3. sect. 18. num. 25.

158. And it is granted for certain­ty, that if the Father bestow a com­petent portion with his Daughter in Marriage, upon him that should mar­ry her; this is such an advancement as shall bar her from the demand of a filial Portion: but it is to be under­stood, that this competent Portion must be equal, or not far inferiour to that quantity which should fall to be due to such a Child after the rate and proportion of the Fathers Estate at that very time when he bestowes it on his Child, and not according to such quantity as should fall due at the time of the Fathers death after­wards. Swin. part 3. sect. 18. num. 22, 26, 27.

159. But if such gift be not com­petent, [Page 112] but far under the rateable part of that which would fall due to the Child, as 5 l. to put in his Purse, or spend at his pleasure, when per­haps the filial Portion would amount to several hundreds of pounds; this is not such an advancement as shall hinder such Childe from the recove­ry of a filial portion. Swin. part 3. sect. 18. num. 28.

160. Or if a man seized in Fee-sim­ple of thirty Acres of Land, hath Issue two Daughters, and giveth ten Acres with one of them in frank­Marriage, and dyeth seized of the other twenty Acres; in this case, she that is married may, if she will, have part of those twenty Acres al­so, and put them in hotch-potch with the other Land, and suffer the same to lye commixed and mingled toge­ther, and so an equal division shall be made betwixt the two Sisters, and each of them shall have fifteen Acres▪ whereas otherwise the Sister marrie [...] would get but ten Acres. Litt. 59. [Page 113] Fynches Law, pag. 124. Terms of the Law, verbum hotch-potch. Swin. part 3. sect. 18. numb. 33.

161. Note, that by Portion is to be understood, not onely a sum of money, or part of the Fathers Goods and Chattels; but also Lands and Annuities bestowed by the Father upon the Childe. Swin. part 3. sect. [...]8. num. 29.

CHAP. VII.
What things are deviseable by Will, and what not.

162. OF Lands, Tenements and Hereditaments, some are deviseable by Custom, and some by force of certain Statutes, as hereaf­ter appears. Cowels Inst. pag. 138. Swin part 3. sect. 2.

163. Lands, Tenements and He­reditaments holden in Gavel-kinde, [Page 114] by the custom of Kent, though they be holden in Knights service, may be given, or devised by Will, and that without license of the Lords, saving to the Lords the Rents and services due out of the same Lands and Te­nements. Terms of the Law, verb. Gavel-kinde. Mich. 1655. in B. R. Hammond and Thornhills Ca. Syles Rep. fol. 476. Swin. part 3. sect. 3.

164. And so Lands, Tenements and Hereditaments lying in London▪ York, Oxford, &c. and other place▪ where the same are held in BurgageTenure, may be devised by Will, fo [...] to hold in Fee-simple, Fee-tail, fo [...] life, for years, &c. and if he who hold such Lands, &c. in Burgage-Tenure be a Citizen or Burgess of the City or Burrough, where such Lands, Te­nements or Hereditaments be holde [...] in Burgage-Tenure; then he ma [...] devise the same in Mortmain, whic [...] otherwise he could not do, if he wer [...] not Citizen, Burgess, or Freeman o [...] the same place: and it is not neces­sary [Page 115] that the Will wherein Burgage­Land is devised should be in writing. But note, that the custom of the place must he observed, concerning the Probate or Inrolment of such Wills, &c. F. N. B. Bre. ex Gravi quaerela in pr. Bro. tit. devise 22, 43 and 51. Dr. & Stud. li. 1. cap. 7 and 10. Swin. part 3. sect. 3. Perkins, Sec. 577, 578. pag. 49. E. 3. devise 8.

165. The Wife so long as she lives unmarried, shall have half of her Husbands Lands holden in Gavel­kinde. Co. on Litt. fol. 111. Old Terms of the Law, verb. Gavel­kinde.

166. And of Lands held in Bur­rough English, by the custom of some places, the Widow shall have the whole, and sometimes the half of her Husbands Estate, Dum sola & casta vixerit. Co. on Litt. fol. 111. F. N. B. 150. Litt. li. 2. cap. 10.

167. By the Stat. 32 H. 8. cap. 1. e­very one (except a woman Covert▪ an Insant under the age of one and [Page 116] twenty years, or a person De non sane Memorie) may be their last Will and Testament in writing, or other Act lawfully executed in their life­time, give, dispose, Will or devise, all such Lands, Tenements and He­reditaments, as they are solely seized of in Fee-simple, or as much as of right in them is, of all such Lands, Te­nements and Hereditaments, as they are seized of in Fee-simple in Coper­cenary, or in Common in Fee-simple, to any person or persons (except to Bodies politick and corporate) And two parts of three of all such Lands, Tenements, or other Here­ditaments, as they hold in Knights service. See now the 12 Car. 2. cap. 24. 32 H. 8. cap. 1, 34. and 35 H. 8. cap. 5. Fynch. Law, pag. 169, 170. Co. on Litt. fol. 111. b. Swin. part 3. sect. 3 and 4. And Wingates Abr. of Stat. tit. Wills.

168. All manner of Goods and Chattels real and personal, moveable and immoveable, may be devised by [Page 117] Will or Testament, except in some certain cases following. Perkins, sect. 511. Lind. in C. Stat. de Testa­ment. li. 3. Provinc. Const. Cantibr. Swin. part 3. sect. 5. Cowels Inst. pag. 140.

169. As where two men are joynt­ly possessed of Goods and Chattels real or personal, one of them cannot make his Will, and bequeath his part to another; for when he dyes, his part goes to the survivor: and so it is in Lands, Tenements, and Here­ditaments also. Perkins, sect. 500, 526. Dr. & Stud. li. 1. cap. 6. Litt. li. 3. cap. 3. Cowels Inst. pag. 140. Clerk of As­size, pag. 63.

170. Nor can a Spiritual person, or Master of a Colledge or Hospital, or Mayor of a City, devise those things which belong to their Church, Col­ledge, Hospital, or City; nor can the Crown or Jewels of the Realm be devised by Will, but they may be given by Letters-patents; and a Par­son by Will may devise the Corn [Page 118] growing on the Glebe-Land at the time of his death. Perkins, sect. 496 and 497, 498. Brac. 1. li. 1, 2. cap. 14. Dr. & Stud. li. 2. cap. 39. Cowels Inst. pag. 125. F. N. B. devise 5. & Exer. 108. Swin. part 3. sect 6.

171. The Husband cannot devise such Goods as his Wife hath, as being Executrix to another▪ nor such things as are in Action, as debts due to her before Marriage by Obligation or Contract, unless he and his Wife sue and recover the same during Mar­riage, or that he renew the Bonds, and take them in his own Name; o­therwise after his death they remain to her. Co. on Litt. fol. 351. b. 9 H. 6, 52. & 21 H. 7. fol. 29. Kitchin, fol. 251. a. Finches Law, pag. 44 & 168. Bro. Testam. 11. Swin. part 2. sect 9. num. 13.

172. Also if the Husband be pos­sessed of a Terme or Lease for years in right of his Wife, he cannot devise it by his VVill, but he may grant it away, or dispose of it in his life-time▪ [Page 119] or, if he make no disposition thereof, yet if he survive her, then it falls to him; and in such Case he may devise it by VVill. Dame Hales ca. Plo. com. fol. 260. Co. on Litt. fol. 251. a. Kitchin, pag. 267. b. 7 H. 6, 1. Per­kins, sect. 560. Dr. & Stud. li. 1. cap. 7.

173. An Administrator cannot de­vise those Goods by VVill, which he hath as Administrator to another per­son dying intestate, but Admini­stration thereof shall be committed to the next of Kin to the first Intestate; neither can an Executor devise those Goods by way of Legacy, which he hath as Executor; but he may make his Testament, and appoint another Executor, who shall have the Admi­nistration of the same Goods, to the use of the first Testator. Fynches Law, pag. 168. Bro. Adm. 7. F. N. Br. Adm. 3. 31 E. 3. cap. 11. Plo. com. fol. 525, 526. Swin. part 3. sect. 6.

174. Those things also which be­long to the Heir after the Testators [Page 120] edath, cannot be devised by VVill, as Glass-windows, VVainscote, Ta­bles dormant, and Benches affixed thereunto, or mortifed in the Earth▪ Furnaces, Coppers, Leads, Ovens, &c. set in Morter or Stone; nor Trees, nor Grass growing, &c. Bro. Exer. 65. Cowel Inst. pag. 140. Co. 4. Rep. fol. 62. Swin. part 3. sect. 6. Noyes Max. pag. 106.

175. But Corn growing on the Land at the time of the Testators death may be devised by VVill, by those who are seized in Fee-simple, Fee-tail, or for life; and also by Te­nant in Dower, Tenant by the Cur­tesie, and Tenant in Mortgage, and their Tenants; and he who is seized in right of his VVife, although thei [...] Estates do determine before the said Corn be ripe and severed, except in some special Cases. Perkins, sect. 512, 514 & 522. Dr. & Stud. li. 1. cap. 20.

176. If a woman Tenant in Dowe [...] sow her Land, and afterwards mar­ry, [Page 121] and the Husband dyes before se­verance of the Corn; in this Case it remains to her, and he cannot devise it: but if it had been sown after the Marriage, he might have devised it. Clerk of Assize, pag. 57. Abr. Dr. & Stud. li. 1. cap. 20.

177. If Tenant for life have Hops growing, and dye a little before the severance of them; in this Case the Executors or Administrators shall have them, and not he in Reversion or Re­mainder; for the Hops are account­ed as Emblements, they growing by Manurance and Industry of the Owner, by the making of Hills, and setting of Poles. Vide Mi [...]h. 11 Car. 1. B. R. Latham and Attwoods Case, Cro. 1 part fol. 396.

178. As Goods and Chattels may be devised, as aforesaid; it is now further observable what a quantity or proportion of Goods and Chat­tels the Testator may devise by his VVill: observe therefore, that if the Testator have neither VVife nor [Page 122] Childe at the time of his death, h [...] he may then dispose and devise al [...] the cleer residue of his Goods and Chattels, over and above the dis­charging Funeral-expences and hi [...] debts. Lindwood in C. Statut. d [...] Testament. li. 3. Pro. Const. Cant. ver­bum defunct. Brac. li. 2. cap. 26. Swin. part 3. sect. 16.

179. But it is the custom of many places, especially within the Province of York, that if the Testator have a Wife or Childe at the time of hi [...] death, that then he can but dispose of half of such his cleer Goods, and the other half is to go to the Wife or Childe; and if he have both a Wife and Childe, or Children at the time of his death, then the Goods are di­vided into three parts; whereo [...] one part is to the VVife, another to the Childe or Children, and the o­ther third part, called the death [...] part, is left to his disposing; and it no disposition be made thereof, it falls to the Executor: but note here, [Page 123] that if the Childe or Children were Heir to the Testator, or were ad­vanced by the Testator in his life­time, then the Testator may devise one half of the cleer goods, and the other half shall go to his VVife. F. N. B. Bre. de Rat. part bonor. Bro. eod. tit. N. 6. M. 7. E. 4. fol. 21. a. Brac. li. 2. cap. 26. Fleta, li. 2. cap. 50. Glan. li. 2. cap. 20. Co. 2 part Inst. fol. 33. Swin. part 3. sect. 16. Refor. Legum Ecclesiast. tit. lest. cap. 10.

180. Note, where the VVife and Children ought to have a rateable part of the Goods of the deceased, be it third part or half, as the case is, there also they ought to have a like part of the debts due by the de­ceased, after they are recovered by the Executor or Administrator; but of Leases they can have no rateable part, where they use to have a rate­able part of the moveable Goods and Debts recovered, unless it be by spe­cial custom of the City, County, Deanry, or place where the Testator [Page 124] dwelled, and had such Leases. Swi [...]. part 3. sect. 16. F. N. B. Breve de Ra­tionabl. part. bon.

181. This rateable part of th [...] Goods to the Wife and Children, i [...] saved to them by the Statute of Mag­na Charta: but note, the Wife o [...] Children cannot sue the Executor o [...] Administrator for their rateable parts, till all the Testators Debts b [...] paid; and then what remains is to be divided according to the Rule [...] aforesaid, into two or three parts before any Legacies be paid; fo [...] they must all be paid out of th [...] deaths part after the division. Mag­na Charta, C. 18. Regist. fol. 142. [...] F. N. B. 122. b. M. 7. E. 4. fol. 21. a [...] Co. 2 part Inst. fol. 33.

CHAP. VIII.
Several Cases concerning the be­queathing of Legacies, and also touching Devises.

182. AS an Executor may be ap­pointed divers ways, as is [...]newed before, chap. 5. so also a Le­gacie may be given after divers ways, either simply or conditional­y, &c. Swin. part 4. sect. 3. num. [...].

183. That Legacie is said to be pure and simple, which is given without a condition annexed to it: and as in appointing an Exe­cutor, it matters not after what form of words it be; so it is in the bequeathing of a Legacie, for it skills not after what form the same be given, so that the Testators meaning do but appear whether [Page 126] it be in Goods and Chattels, or Lands and Tenements. Swin. part 4. sect. 4. num. 18.

184. Note, that a Legacy may be given from a certain time, or until a certain time; albeit the Legatary dye in the mean time, before the day come, yet the Executors or Administrators of the Legatary may recover the same when once the day is past, as the Le­gatary himself might have done i [...] he had lived so long; unless th [...] meaning of the Testator be to th [...] contrary, or that it be such a thing as cannot be transmitted to the Exe­cutor, as personal service: but if th [...] Legacy be given after an uncertai [...] time, as where the Testator give thee an hundred pounds when h [...] Son shall dye, or the like; there [...] thou dye before the time come, th [...] Executors or Administrators ca [...] then recover nothing. So note th [...] diversitie. Mich. Grass. thesaur com. opin. sect. Legat. quaest. 43. Mant [...] ca de conject. ult. volunt. li. 11. tit. 2 [...] [Page 127] num. 8. Swin. part 4. sect. 17. Refor. Legum Eccles. tit. Testament. cap. 26.

185. If a man devise to his Daugh­ter an hundred pounds when she shall be married, or to his Son when he shall be of the Age of twenty one years; here if they dye before the time appointed, their Executors shall not have it: But if the devise were of an hundred pounds to the Daugh­ter, to be paid her when she shall be married; or to the Son, to be paid him when he shall attain the age of twenty one years; in such case, if they dye before such time, then their Executors may recover the Legacy. Tr. 1653. B. R. in Dumlowe & Shawes Ca. Hughes grand Abridg. 1 part, pag. 664. cap. 14.

186. Note that a Legatary may not of his own Authority take the Legacy, and serve himself, but must receive the same at the hands of the Execu­tor; except in some cases, as where the Legatary is possessed of his Le­gacy at the time of the Testators [Page 128] deaths; for in such cases, he may retain and keep it, if there be suffi­cient assets besides in the Executors hands to pay the Testators Debt; or, if the Testators give license to the Legatary to enter to his Legacie, then he may do it without the Exe­cutors consent; and if he be both Legatary and Executor, then he may serve himself. Perkins, sect. 488. Hernes Law of Con. pag. 88. Socin. Jun. Consil. 111. vol. 1. Swin. part sect. 4. num. 23. Perkins, sect. 570, 572, 573.

187. But the Legatary hath no re­medy by the Common Law for any Legacie of goods to him bequeathed, if the Executor will not deliver the same; but he must in this case have a Citation for the Executor, to ap­pear before the Ordinary, or other competent Ecclesiastical Judge, to answer him in cause of his Legacie▪ except in case where a particular thing is bequeathed, as the Testators Horse or Signet, &c. and in such [Page 129] case, the Legatary may sue at Com­mon Law for the same. Bro. devise, num. 3, 6, 14, 27, 30. Terms of the Law, verbum Devise. Swin. part 4. sect. 4. num. 23.

188. Also if the Testator will that his Executors shall sell his Land, and pay such and such Legacies out of the Moneys; in this case the Lega­taries may sue at Common Law, and not in the Spiritual Court for their Legacies. Mich. 5 P. & M. Dyer, fol. 151, 152. Vide M. 29. & 30 Eliz. C. B. Germyes Case. Leon. Rep. fol. 87. & Tr. 17 Jac. C. B. Rott. 895. Ed­wards & Graves Case. Hob. Rep. fol. 265.

189. But if the Legacies he grant­ed to be paid out of Leases, and not out of Fee-simple-Lands; then the Legatary may sue in the Spiritual Court for such Legacie. Brownlowes 1 part Rep. fol. 34.

190. Testamento cum duo inter se pugnantia reperiuntur, ultimum ra­ [...]um est: If there be divers devises of [Page 130] one thing in one Will, the last devise taketh place only. Co. on Litt. fol. 112. b.

191. If the Testator bequeath to A B all his Goods; in this case it is the opinion of some, that A B shall have the Testators whole Estate actively and passively, (onely his Lands, Tenements, and Freehold excepted) being in effect, his Execu­tor or Heirs, as the Civil Law terms him, and is hereby chargeable with the Testator debts, so far as the Goods will extend. Gloss. in L. his verbis, sect. de Haered. Instit. Swin. part 7. sect. 10.

192. But others are of opinion, that if a man grant omnia bona, (that is, all his Goods;) in this case, Leases for years, nor a Ward, no [...] things in Action, as debts upon Pro­mise or Obligation, shall not pa [...] thereby; for these are Chattels. 4. E. 6. Bro. tit. Grants 51. & Done 43. Kitchin, pa. 44. b.

193. But if the Testator do be­queath [Page 131] to A B all his Chattels; in such case he shall have the Testators whole Estate, Leases and Wards too; for Cattalla includes all but free­hold, as well immoveable as move­able. Standford. de praero. Regis, cap. 16. Kitchin Court. Leet, pag. 45. a. & 46. a. Swin. part 7. sect. 10.

194. But note, that A B by such devise shall not have Glass of the Widows, Wainscote, Tables dor­mant, Fats in the Brew-house fixed to the Free-hold; nor Furnaces, nor the Box or Chest wherein the Testa­tors Evidences are; nor Hawks, nor Hounds, nor Doves in the Dove­house, nor Fishes in the Pond, nor Deer in the Park: for these things belong all to the Heir. Fynch. pag. 22. Noyes Max. pag. 101 and 107. Vide Hill. 43 Eliz. C. B. Gray and Trowes Ca. Goldesboro. Rep. pag. 129. pl. 24. 18 E. 4. fol. 14. 4 H. 7, 10. And 21 H. 7, 26. Kitchin, pag. 45. b. 46. a.

195. Note also, that if A B dye [Page 132] before he have proved the deceased [...] Will, wherein he bequeaths to him all his Goods, or all his Chattels, as foresaid; yet in such case Admini­stration shall be committed to the next of Kin to the said A B, and not to the next of Kin to the Testator. 23 Eliz. Dyer, fol. 371. Swin. part 4. sect. 10.

196. But if the Testator, in ei­ther of the cases, make another man Executor; then the Legatary shall not enter into the whole Estate of the deceased; but the Executor proving the Will, is to enter, and may receive or sue for all the debts due to the Testator, and stands also chargeable with the payment of the Testators debts; and what remains is due to the Universal Legatary. Mich. Grass. thesaur. com. opin. sect. Inst. q. 14. num. 3. Swin. part 7. sect. 10.

197. If the Testator bequeath to A B all his moveable goods; here the Legatary may recover all the Testa­tors personal Goods and Cattle, both [Page 133] quick and dead, which either move themselves (as Horses, Sheep, Ox [...], Swine, &c.) or can be moved by another, as Houshold-stuff, Plate, Plough-geer, Waynes, Carts, Corn in the Barnes or Garners, and also Corn growing on the ground: And such Debts as were due to the Testator, and did arise by reason of such move­able things, and for recovery where­of, there lyeth an Action personal, do belong also to the Legatary; but the Legatary cannot sue for the same in his own Name, if another man be made Executor; but the Executor must sue for the same, and after reco­very, deliver the same to the Lega­tary. Paul. de Castrens. Consil. 132. vol. 1. Socin. Jun. Consil. 60. vol. 1. Stamf. 45. Swin. part 7. sect. 10. Noyes Max. pag. 99. Mich. Grass. thesaur. com. opin. sect. Legat. quaest. 19.

198. But where the Testator doth bequeath to A B all his Goods im­moveable; here the Legatary hath [Page 134] right onely to the Leases for years, which did belong to the Testator, and to such benefits as arise thereby, as Fruit on the Trees, Grass growing on the Ground, Fishes in the Pond, and Pigeons in the Dove-coate, as appurtenant to the Grounds demised, or as parcel of the Fruits of the Te­nements (which if they were out of Lease) did belong to the Heir: but as to Corn growing on the Ground, or other Fruits industrial, as Hemp, Lyne, &c. Turneps, Carrets, or o­ther Roots; they are accounted a­mongst the moveable Goods, and such Legatary shall not have them: but he shall have such Debts as were due to the Testator by reason of something immoveable, as Rents due out of Leases, or Arrearages of Rents due out of Lands, Tenements and Hereditaments; but he cannot Commence Suit in his own Name, if another be made Executor, as is shew­ed before, number 197. Cowels In­terp. verb. Chattels. Kelloway, Rep. [Page 135] fol. 118. Stamf. cap. 16. fol. 45. Mich. Grass. thesaur. com. opin. sect. Lega­tum, q. 19. num. 5. Swin. part. 7. sect. 10. Bro. Executor 49.

199. If the Testator bequeath to thee all his Houshold-stuff; in this case thou shalt have all his Tables, Forms, Stools, Chairs, Truncks, Chests, Cupboards, Bedsteads, Cur­tains, Vallence, Rugs, Blankets, and all manner of Bedding; and also Hangings, Carpets, and all manner of Linen, as Sheets, Table-cloths, &c. Basons and Ewers, Candle­sticks, Salts, Flaggons, Pottingers, Sawcers, &c. Bowls, Barrels, and all manner of Vessels serving for meat or Drink, whether they be of Earth, Wood, Glass, Pewter, Brass, or Sil­ver, or Gold, if they were used in the daily service of the House, and not kept for Ornament onely; and also, Pots, Pans, Spits, Racks, and the like: and lastly, Coaches by some are held to pass by the name of houshold-stuff. Menoch. de praesumpt. [Page 136] li. 4. praesump. 160. num. 8, 16, 17 and 19. And Praesump. 122. num. 21. Pa­nor. Consil. 88. vol. 2. num. 3. Swin. part 7. sect. 10.

200. But Apparel, Books, Wea­pons, Artificers Tools, Cattle, Victu­als, Corn in the Barne or Grana [...]y, Waynes, Carts, Ploughs, &c. and Vessels affixed to the Free-hold, do not pass by the name of Houshold­stuff. Menoch. de Praesump. li. 4. Praesump. 160. num. 29 and 33. Labeo, and Gloss. de Supellectil. Swin. part 7. sect. 10.

201. If the Testator having store of young Colts, willeth his Executor to give to A B two Colts of the age of two years, and after the making of his Will liveth many years; in this case there is due to the Legatary two of the first Colts, which were ex­tant at the time of the Will making, and not of the last Colts at the time of his death. Franc. Mantica de conject. ult. volunt. li. 3. tit. 11. Menoch. de Praesump. 127. num. 6. li. 4. Swin. part 7. sect. 11.

202. And if the Testator bequeath to A B all his Goods, which are in such a place, and afterwards he brings more Goods thither, and then dyes; here the Legatary shall have onely those Goods which were there when the Will was made, and not those Goods too which were brought thither afterward. Menoch de Prae­sump. 127. num. 29. li. 4. Swin. part 7. sect. 11.

203. But if the Testator had said, I bequeath to A B all my Goods which shall be in such a place, or all my Goods which may or can be found in such place; here all the Goods in that place at the time of the Testators death, are due to the Legatary, though they were brought thither by the Testator after the making of his Will. Franc. Man­tica de conject. ult. Volunt. li. 3. tit. 11. num. 12. Menoch. de Prae­sump. 127. num. 87. li. 4. Swin. part 7. sect. 11.

204. If the Testator bequeath to [Page 138] A B his Heard of Cattle, and there is but one left at the time of his death; in this case 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. Ful [...]. fol. 41. Plo. Co. fol. 341. Mas [...]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 [Page 139] 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 [Page 141] 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, [Page 143] 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 [Page 142] 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 [Page 144] 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. quin (que) 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; [Page 145] 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 to give an hundred pounds, doth give but fifty pound: in these cases the Lega­tary may recover as much as the Te­stator did mean and intend to give, be it more or less then the sum men­tioned. Swin. part 7. sect. 5. num. 13.

217. If the Testator bequeath an hundred pounds to the Church, not mentioning what Church, it shall then be understood of his Parish­Church; or if he name a Church, and there be divers there of the same name, and none of them his Parish­Church; then the Executor, if he prove the Will; or the Ordinary, if he refuseth, may bestow the same on which Church he will: but if the Testators Parish-Church be of the [Page 146] same name, it ought then to be bestowed there. Mich. Grass. the­saur. com. opin. sect. Legat. q. 64. Swin. part 7. sect. 8. Franc. Man­ti [...]. de conject. ult. vol. li. 8. tit. 6.

218. Where the Testator doth be­queath one half of his Goods to one person, and makes another his Exe­cutor, willing and appointing that all his Goods shall be divided be­twixt them; in this case the Legata­ry shall have half before debts paid, and the Executor the remainder after debts paid: as, where the Testator hath Goods to the value of an hun­dred pounds, and oweth twenty pounds out of the same; here the Legatary shall have fifty pounds, and the Executor shall pay the twenty pounds debt out of his half. 5 Mariae▪ Dyer fol. 164. Goldesborough Rep. pag. 149. Pl. 74. Hil. 43 El. C. B. Swin. part 7. sect. 10. Cowels Inst. pag. 146.

219. If a man bequeath twenty pounds to A, and twenty pounds to [Page 147] B, and twenty pounds to C, and makes his Executor, and dyes, having Goods in all but to the value of twen­ty pounds, of which Goods the Exe­cutor makes an Inventary; in this case he may pay which of the three he pleases his whole Legacie, and the other two are without remedy; or he may, if he please, pay every one of them a rateable part: and if in case the Executor make no Inventa­ [...], yet he is chargeable no further [...]en the value of the Goods; and so [...] every Legatary in such case should [...] him, they must prove sufficiency of goods, or otherwise they should [...]et nothing. Plo. com. fol. 545. in Case [...]ter Parham and Yardly. Dr. and [...]ud. li. 2. cap. 10.

220. If the Testator say, I will [...]at A B shall have an Horse; here [...] Election belongs to the Legatary: but if he had said, I will that my [...]xecutor give to A B an Horse, then the Election belongs to the Execu­tor: and if the words of Election be [Page 148] directed to neither of them, then the Legatary shall make the Election, if there be any such thing extant amongst the Testators good as is bequeathed; and if not, then the Ex­ecutor is to make the Election: and in case where the Legatary chuseth, he must not take the very best, un­less there be no more but two of the things extant; for then he may chuse the best, and so he may do when the Testator grants him the Election; and as the Legatary may not chuse the best, neither may the Executor obtrude the worst of those things extant; and where there is no such thing extant, then the Executor i [...] to provide a competent thing for th [...] Legatary. Mich. Grass. thesaur. com▪ opin. sect. Legat. q. 62. num. 2 and; Mins. in D. sect. si generaliter, num. [...] Swin. part 7. sect. 10. Co. on Litt. fo. 144. b.

221. If the Testator bequeat two Horses to two Men, having [...] more, and one of them is a grea [...] [Page 149] deal better then the other; in this case he that is first named in the Te­stament shall have the Election. Co. on Litt. fol. 144. b. 2 H. 7, 23. Swin. part 7. sect. 10.

222. If the Testator give to A B twenty pounds if he will, in such case A B must express his willingness by some means, or else the Legacy is not due; and if he die before such ex­pression, then the Legacy is lost, and shall not go to his Executors or Ad­ministrators, which otherwise it would, if no such condition had been expressed. Swin. part 4. Sect. 6. num. 7.

223. If an Executor have a Lega­cy left him by his Testator, and refu­seth to stand to the Executorship, in such a Case he looseth his Legacy. Gribald. Thesaur. com. opin. verb. Tu­tor. Swin. part 6. sect. 2. in sine. Refor. Leg. Eccles. Tit. Testament. C. 23, and 24.

224. But if the Executor be not duly admonished to take the Execu­torship [Page 150] upon him, then if he be the Testators Kinsman, or such a person to whom the Testator would have gi­ven the Legacy, though he did not perform the Will, and take the Of­fice upon him; in such case he shall not loose the Legacy then, by his re­fusal of the Executorship; neither shall the Wife loose her thirds, nor the Children their filial Portions, nor the Creditor his debt, if any of them be made Executors, and refuse to take the Office upon them. Swin. part 6. sect. 3. num. 15. Sichard. in lib. Si le­gatarius, cap. de legat.

225. If a man by his Will devise all his Lands and Tenements to A B▪ in this case, not only all his Land and Tenements which the Testato [...] hath in possession do pass, but also those which he hath in reversion also▪ by vertue of the word Tenements Terms of the Law, verb. Devise. Cow­els Inst. pa. 144. Swin. part 4. sect. 4▪ num. 19.

226. But if the Testator have both [Page 151] Lands in Fee, and Lands in Lease for years, and deviseth all his Lands and Tenements; in such case the Lands in Fee only pass, and not the Lands in Lease for years: but if he have none but lands for years in Lease only, then those lands shall pass by vertue of such devise. Tr. 7 Jac. B. R. Rose and Bartlets Case. Cro. 1 part Rep. fol. 213. Noys Maxims pag. 99.

227. If lands be devised to a man to have to him for evermore, or to have to him and his Assigns; in both these cases a Fee-simple doth pass to the Devisee: but if such a Gift or Grant were made by Deed, it would carry an estate but for life, without the word Heirs were in it. Perkins, sect. 557. M. 22 E. 3. Devise 20. Terms of Law, verbum Devise. Swin. part 4. sect. 4. num. 19.

228. Also if a man devise his lands to another, to give, or sell, or do therewith at his pleasure; here he hath a Fee-simple also: and if lands be de­vised to one and his Heirs males, this [Page 152] shall amount to an Estate in tayl; but if such words be in a Feoffment, it shall be taken for a Fee-simple, because it doth not appear of what body the heirs Males shall be begotten. Terms of the Law, verb. Devise. Co. on Lit. fol. 9. b. Swin. part 4. sect. 4. Cowels Inst. pag. 144.

229. Also if one devise to an In­fant in the Mothers womb, it is good; but such a Feoffment, Gift, or Grant is void: and if one will that his So [...] shall have his 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 [Page 153] 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, [Page 154] 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 [Page 155] 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 Fee­simple, 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 Coun [...]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 [Page 157] 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 [Page 158] 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 [Page 159] 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 life­time 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 [Page 160] by the Testator, or where the Executor doth refuse to take the Office upon him. Jo. de Canibus Tract. de Executoribus, ult. vol. part 1. q. 3. Swin. part 6. sect. 1. num. 2.

244. The second hath his Autho­rity from the Bishop or Ordinary, and is he whom we call an Admini­strator, and is put in where the Exe­cutor named refuseth, or cannot b [...] Executor, or when no Executor i [...] named in the Will; and if there b [...] a Will, then it must be annexed to the Letters of Administration: and such Administrator is chargeable with the performance of the Will, a [...] if he had been appointed by the Te­stator. Bro. Testament 20. and Devis [...] 35. 31 E. 3. cap. 21. and 21 H. 8. cap. 5. Swin. part 6. sect. 1.

245. And lastly, the Executor who derives his power from the Te­stator, is he that is named Executor in the Testament; to whom the Ex­ecution of the Testament is commit­ted by the dead man, and is called [Page 161] Executor testamentarius, and hath his Authority immediately from the Testator, and may without the Au­thorty of the Ordinary enter to the Testators Goods and Chattels; and after Probation of the Testament, may also Commence Suit against the Testators Debtors. Plo. com. in Case inter Griesby and Fox. Bro. Executor 49. Swin. part 6 sect. num. 4. Minsin. in tit. de Haered. Inst.

246. When the King is made Ex­ecutor of the Testament of another person, he doth not take the office upon him, but appoints certain per­sons to take the Execution of the Will upon them, (against whom such as have cause of Suit may bring their Action) and others he appoints to take the accounts, as appears in the Case of Catharine Queen-Dowager of England, Mother to H. 6. who constituted King H. 6. her sole Exe­cutor; and he appointed certain per­sons to take the charge of the Will upon them, and others to take their [Page 162] Accounts. Vide Rott. Parliamen. 15 H. 6. num. 32. Co. 4 part Inst. fol. 335.

247. VVhen a man makes several Executors, and they live in divers Diocesses, they shall all receive such benefit as accrews to them by the Testament, onely by the Authority of that Judge who confirmed the Te­stament to them; and the same course is to be taken by the Administrators who live in several Diocesses. Re­for. Leg. Ecclesiast. tit. Testament. cap. 37.

248. Now the Office of an Execu­tor Testamentary, doth consist in two things; that is, either in accepting or refusing the Executorship; upon both which parts there are several Cases hereafter following in this Chapter, very necessary for all Exe­cutors to know.

249. If he that is named Execu­tor be cited to appear before the Or­dinary, and do refuse to accept the Executorship, or will not appear; then [Page 163] the Ordinary or other Judge may commit the Administration of the Goods of the deceased, as if he had dyed intestate: but if the Executor afterwards be willing to undertake the Executorship, then the Ordinary may revoke the Administration be­fore committed: but mean acts done by the Administrator, until the Exe­cutor undertake▪ are good and ef­fectual in Law. Bro. Exer. 49. and 101. and Admin. 32 and 33. 31 H. 8. cap. 5. Vide Griesbie and Foxes Case, [...]low. com. fol. Swin. part 6. sect. 2.

250. Note, that the Executor can­not be compelled to undertake the Office, unless he have already med­ed with the Testators Goods as Ex­ecutor; for then he may be compel­ed to it: and if notwithstanding he do still refuse, and the Ordinary do [...]ommit the Administration to him; his refusal is void, and he shall be [...]harged as Executor. And when one [...]hall be said to meddle with Goods [Page 164] as Executor, and when not, is shew­ed afterwards in this Chapter. Fitz. Abr. tit. Exec. num. 35. Olden de Exec. ult. Volunt. tit. 7. in fine. Swin. part 6. sect. 2. Noyes Maximes, pag. 102. Hernes Law Convey. pag. 87.

251. VVhere a term is devised to an Executor, who enters, and dyes be­fore Probat; yet in such Case the entry is good Executorship, and his Administrator shall have it. M. 2 [...] El. Dyer, fol. 367.

252. Note, that every one to whom the Testator was indebted, shall have an Action against the Exe­cutor, so long as the Executor hath Assets in his hands; but a Debt due to the Testator shall not charge the Executor as Assets till he have re­ceived it. Terms of the Law, verb▪ Executor. Br. Exec. num. 112. Swin. part 6. sect. 3.

253. VVhere there be divers Exe­cutors, the Actions Commenced by them ought to be in all their names▪ [Page 165] and so must the Action that is Com­menced against them, name them all; except it be in Case where some of them refuse to take the Office, and the others onely prove the Will; for in such Case in Actions brought against them, those onely which prove the Will may be named, and the other left out. Bro. Exec. 117. Co. 9. lib. Rep. fol. 40. Noyes Max. pag. 102. Swin. part 6. sect. 20. Per­kins, sect. 485.

254. If divers be made Executors, and some of them refuse, yet he which refuseth may release any debt (before Judgement) which was due to the Testator; and it is as good as if he had never refused, and so a sufficient discharge to the Creditor; for every Executor hath an in­tire interest: and therefore if two as Executors have a term, and one of them grants all that to him apper­tains; in this Case the intire Term shall pass. Co. 5. li. fol. 28. Bro. Exec. 38, 117. Dyer, fol. 23 and 319. [Page 166] Swin. part 4. sect. 20. Noyes Maximes, pag. 101, 102. Perkins, sect. 485.

255. But one Executors releasing of Debts, or selling of Goods, shall not charge the other to pay so much of the Goods, if there be not enough to pay Debts; but it shall charge the party himself that did so release or convey. Hernes Law Convey. pag. 87.

256. Note, that the Executor which refuses, may joyn at any time when he will; yea, though it be not till after the death of the other Executor, wh [...] proved the Will; contrary to the opini­on of Broke; and so the Quere in Dye is well resolved. 42 El. Henslowe▪ Ca. Co. 9. li. fo. 39. Perkins, sect. 485▪ Dyer, fol. 360. num. 42. Bro. Exec. 92▪ 99 and 149. Swin. part 4. sect. 20▪ and part 6. sect. 3.

257. But if divers be made Exe­cutors, and they all refuse before the Ordinary, and he grants Administra­tion to another; in such case they cannot then afterwards prove at any [Page 167] time: so note the diversity between one refusing, and all refusing. 42 El. Henslowes Ca. Co. 9. li. fol. 39. 36 H. 6. Finches Law, pag. 171. And Vide Bewacorne and Caters Case, Mores Rep. fol.

258. If two be appointed Execu­tors, and one of them refuses, and the other takes the Office upon him, and then dyes, and makes his Testa­ment, wherein he names the Execu­tor; in this case the Executor of the Executor cannot joyn with the sur­viving Executor, neither in the exe­cution of the first Testators Will, nor in Suits or Actions: and if the Execu­tor of the Executor have any 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 [Page 168] 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 [Page 170] 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, [Page 171] 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 Compa [...]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 [Page 172] 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 Li [...]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. Noye [...] Max. pag. 100, 101. 38. Ass. Pl. 3. [Page 173] 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 [Page 174] 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 have an Action of Debt against his Executors or Ad­ministrators for such Arrearages. The Husband also who is seized in right of his Wife of any Estate in Fee-simple, Fee-tayl, Fee-farm, where any such [Page 175] Rents are behind in the Wives life (whether it be before or after Mar­riage) and unpaid at the time of her death, may have the like remedy; and so may his Executors or Admini­strators. Co. on Lit. fol. 351. b. 32 H. 8. cap. 37. Swin. part 6. sect. 3 num. 8. Pasc. 23 Eliz. Dyer fol. 375.

271. Actions of Account were gi­ven to Executors by the Stat. of West­min. 2. and Actions of Trespass done [...]o their Testator, as for his goods and Chattels carried away, were given by [...]he 4 E. 3. 7. and by the 25 E. 3. Exe­ [...]utors of Executors have Actions of Debt, Account, and of goods carried way of the first Testators; and Ex­cution of Statute-Merchants and Re­ [...]ognizances made to him, and are [...]lso lyable to the Actions of those to [...]hom the first Testator was indebted, [...]o far as the goods of the first Testa­ [...]or will extend; but the Goods which [...]id belong to the first Testator shall [...]ot be put in Execution for the Debt [...]f the second Testator. Wingate Abr. [Page 176] Stat. Tit. Executors. Co. 2 part Inst. fol. 404. Finch pag 173. Noyes Max. pag. 102. Westm. 2. c. 23. 25 E. 3. c. 5. 4 E. 3. c. 7. Swin. part 6. sect. 3. Plo. Com. fol. 286, 287.

272. Note that one Executor can­not sue another for the possession of the Testators goods; for the possessi­on of one is as the possession of both, and therefore one of them hath no re­medy against the other but in Chan­cery, unless there be a Legacy lef [...] unto one of them in particular, and then he may sue for that. Swin. part 4. sect. 20. num. 14. Bro. Exec. 98▪ 104. F. N. B. Exec. 32. Plo. Co. fol. 343. Swin. part 6. sect. 3. num. 20▪ Tothils Rep. pag. 8.

273. If an Infant be made Execu­tor, Administration durante minor [...]aetate may be committed to the Mo­ther or other Friend of the Infant▪ which shall cease and be void whe [...] the Infant comes to the age of seven­teen yeers. 41, 42 El. C. B. Prince case. Co. 5 lib. fol. 29. Noyes Max. pag. 105.

274. But this Administrator du­ring such Minority, cannot sell or Alienate any of the Goods of the de­ceased, unless it be upon necessity; as for the payment of the deceaseds Debts, or that the goods would o­therwise perish; for he hath his Of­fice of Administrator, Pro bono & commodo Infantis, and not for his pre­judice; and cannot pay Legacies, unless there be assetts to pay debts; neither can he let a Lease for a lon­ger time then whilest the Executor shall be under age. Noyes Max. pag. 106. Co. 5 li. Rep. fol. 29.

275. If a man make two Executors, one of seventeen years of age, and the other under; in this Case Administra­tion during the Minority of the other is void, because he of seventeen years of age may execute the Will; and therefore if such Administrator should bring any Action, the Exe­cutor of seventeen years of age may well release the Debt. Piggot and Glascoignes ca. Brownl. 1 part Rep. fol. 46.

276. And if a Woman under the age of seventeen years be made Exe­cutrix, and the Adminstration is com­mitted duranteminori aetate, and then she takes an Husband of full age; in such case the Administration shall cease. Co. 5 li. Rep. fol. 29.

277. An Infant-Executor upon payment or satisfaction to him of any of the Testators Debts, may give a discharge for the same; and it is a good bar against him afterwards: but if he should give a release without pay­ment or satisfaction; in such Case he is not barred from the recovery there­of afterwards by such release. 28 El. B. R. Russels ca. Co. 5 li. fol. 27. Tr. 13 Car. 1. B. R. Kniverton and La­thams ca. Cro. 1 part Rep. fol. 352, 353. Noyes Max. pag. 106.

278. If a woman during the Cover­ture be named Executrix, she alone can neither sue nor be sued without her Husband; but she alone may do any extrajudicial act, as the paying of Debts or Legacies, or the re­ceiving [Page 179] or releasing of any Debts due to the Testator; and so may her Husband alone without her, though she alone be Executrix; which acts of his shall not onely binde her during Marriage, but after also, if she out­live him. Co. 5 li. fol. 27. F. N. B. Exec. 23, 30. Bro. eod. tit. num. 147, 151, 152, 178. Kellowayes Rep. fol. 127. num. 74. Swin. part 5. sect. 1. part 6. sect. 3. num. 17.

279. An Executor may release an Action before Probat, although that before Probat of the Will he may not have an Action; but if B release, and after take Administration, that shall not bar him; for the right of A­ction was not in him at the time of the release, as it was in the Executor. 1 Jac. C. B. Middletons case. Co. 5 li. fol. 28. Perkins, sect. 482. Tr. 7 H. 4. 8. Glan. li. 7. cap. 7. Fleta, li. 2. cap. 27. Co. on Litt. fol. 292. b. 18 H. 6, 23. Hernes Law of Con. pag. 86. Cowels Inst. pag. 119.

280. If an Executor take in the [Page 180] Testators Bond from one of the Cre­ditors, and gives his own Bond for the Money; or, if the Testators Creditor be indebted to the Executor in so much as the Testator was indebted, and the Executor releases to him; in both these Cases it is a good Ad­ministration by the Executor, and they shall not be charged as assets in his hands, although in the first Case he get a longer day of payment. Pasc. 30 El. C. B. Stampe and Hut­chings case. Leonards Rep. 111, [...]. See Bryers and Goddards case. [...] Rep. fol. 250. And Arlush and [...]lisons case. Claytons Rep. pa. 88. [...] 48.

281. But if the Executor plead [...]ully Administred, and give in evi­dence Bonds cancelled and taken in, or Acquittances for Money; this will not serve, unless there be proof of real payments made upon such Bonds and Acquittances, or of new security given. Lent-Assize, 24 Car. 1. apud Ebor. Scotts case. Claytons Rep. pag. 112 pl. 193.

282. If there be divers Executors, and they are all sued, and one of them onely pleads, yet Judgement shall be against them all, but the costs shall be against him which pleads, if the other do confess or suffer judge­ment to go by default. Brownl [...] pag. 274. 17 E. 3, 45. b. And [...] Jac. C. Banc. Lawry and Aldrod [...] [...] Brownl. 2 part Rep. fol. 183, [...] 186, 187.

283. If an Executor [...] one of the Testators [...] he plead fully Administred, [...] Jury finds assets in his hands, [...] they be but to a small value, y [...] [...] shall be condemned in the whole debt because of his false plea. M. 4 Jac. B. R. Mary Shiplyes ca. Co. 8 li. fol. 134. Clerk of the Assize, pag. 65.

284. If the Executor promise to pay a Debt of the Testators, this shall binde him, though he have not assets. Summer. Assize 16 Car. 1. [...] ­pud Ebor. Smiths ca. Claytons Rep. pag. 85. pl. 141.

285. An Executor is not charge­able with a collateral promise made by the Testator, unless there were a breach of it in the Testators life­time. M. 1649. Christopher and Howes case. Styles Rep. fol. 141. And Pas [...]. 1650. B. R. Styles Regest. Practicale, pag. 121.

286 If the Creditor make his Deb­tor his Executor, in this Case the Debtor proving the Will, the Debt is thereby extinguished: or, if the Creditor make his Debtor and ano­ther Executors, here though the Debtor dye before he Administer as Executor, the other Executor who was not indebted surviving; yet in this Case the surviving Executor shall not have an Action for the same Debt against the Executor of his Co-execu­tor; for that the Action was extingui­shed by constituting him Executor; &, Actio semel extincta, nunquam revivi­scit. Quaere. Bro. Testam. 118. Plo. com. fol. 184. Cowels Inst. pag. 207. But see M. 31 Eliz. in B. R. Crosman [Page 183] and Reads case▪ to the contrary, Leo­nards Rep fol. 320.

287. Also if two be bound in a Bond to one in a certain sum of money, and the Obligee makes one of the Obli­gors his Executor; this is said to be a Release in Law of the Bond and Debt: for the Action is suspended, and a personal Action once suspended is thereby extinct. Hil. 11 Jac. C. B. Fryer and Gildridge ca. Hob. Rep. fol. 10.

288. If a Debtor makes his Credi­tor and another Executors, the Cre­ditor if he not prove the Will nor ad­minister, may have an Action against him that doth prove the Will for his Debt; and then afterwards he may Administer and take the Executor­ship upon him when he pleases: but if he take it upon him before he sue for his Debt, his Action will be there­by extinguished.

289. If the Executor by the Will be to pay money, and no place is ap­pointed, the parties in this case to [Page 184] whom it is to be paid, must make Re­quest to the Executor to pay it, for the Executor in such case is not bound to seek the parties all over England, as it is in the case of a Bond where no place of payment is appointed. Brownl. 1 part Rep. fol. 46.

290. If one be bound in an Obliga­tion with Condition to pay twenty pounds to such person as the Oblige [...] shall name and appoint by his last Will and Testament, and the Obli­gee afterwards makes his Will and nominates none to whom the twenty pounds shall be paid; in this case the Executor named in the Testament may sue and recover the money. M. 11 Jac. C. B. Rott. 945. Pease and Stil­man against Mead. Brownlo. 1 part Rep. fol. 77.

291. As to the payment of Debts by the Executor, he must have a care to pay them according to these fol­lowing rules; otherwise it may be he shall be forced to pay some of the [Page 185] Testators Debts out of his own pro­per goods, if there be not sufficient goods of the Testators to pay all the Debts; therefore observe what fol­lows.

292. First Funeral-expences, then Debts to the Kings Majesty, then Judgments must be payd; after them Statutes-Merchant and Recognizan­ces, then Obligations; and if there be divers Obligations, he may pay which of them he pleases first; unless the day of payment in one Obligation be past, and the day of payment in the other Obligation not come; for then that is to be paid first where the day of payment is past; or unless one Ob­ligation be put in suit, and the other not, for then that in suit must be first payd: and if there be two Obliga­tions put in suit by two Creditors a­against the Executor, then he which first gets Judgment must first be paid; and in this case the Executor, if he will, may suffer Judgment in that which was last put in suit, and so pay [Page 186] him off first: then after these Obliga­tions, simple Bills are to be payd; then Rents in arrear by the Testator; then Servants and Head-Workmens Wa­ges; then Merchants Books; and last­ly, Contracts by word, in which the Testator could not wage his Law, up­on which the Executor may be sued in an Action upon the Case, upon the promise of the Testator. Bro. Exec. 172. Dr. and Stud. Li. 2. C. 10. Dyer fol. 32. Mag. Charta C. 18. Co. 2 part Inst. fol. 32. Cowels Inst. pag. 150, 151. Herns Law con. pag. 87. Noye [...] Max. pag. 104. Co. 3 part. Inst. fol. 202. Swin. part 6. sect. 16. See M. 3 [...] El. C. B. Pemberton and Barhams case, and 43 El. B. R. Bearblock and Reads ca. vouched in the Sadlers case. Co. 4 lib. and Harrisons case 40 El. C. B. Co. 5 lib. fol. 28. Terms of the Law ver. Executor. Bro. Exer. 33, 87, 127, 163. Mich. 9 Jac. C B. Puncheon and Legatos case. Brown. 2 part Rep. fol 137. and Co. 9. lib. fol. 86. the same case. M. 42. 43 El. B. R. Littleton [Page 187] and Hebbens Ca. Cro. 1 part. Rep. fol.

293. The Executor is not charge­able for a Trespass done by the Te­stator, nor for his receit for Rents, nor for occupation of Lands, as Bay­liff or Guardian in Soccage; for this is no duty certain. Noys Max. pag. 103.

294. If Executors or Administra­tors have not Assets in their hands to pay all the Creditors, according to these former Rules; then they must pay in order as far as the Goods and Chattels of the Testator will extend, and the rest are without remedy: but if they pay Debts to others before Debts to the King, or Bonds before Judgments, or Shop-Books before Bonds, &c. then they must pay the same over again, if there be not suf­ficient left to pay them who ought to have been paid according to the same order, and were omitted. Hernes Law Conv. pag. 87.

295. If the Testator were indebted [Page 188] to the Executor, he may allow his own Debt before he pay other Cre­ditors to whom the Testator was in­debted in the like manner as he was to the Executor, be it by Statute, Bond, or otherwise; in case he have made an Inventary, and that he be not Executor of his own wrong; for every Creditor by such means, when the Goods be not sufficient to pay all, would strive to make himself Ex­ecutor of his own wrong, to satisfie himself, and bar others; an Admini­strator also may stop his own Debt. Plo. com. in Woodward and Darcyes case. M. 40. 41 El. B. R. Coulters case. Co. 5 li. fol. 30. Ma. 6 Jac. C. B. Alex­ander and Lambs case. Brown. 1 part Rep. fol. 103. Swin. part 6. sect. 16. Plo. com. fol. 184.

296. If the Testator be indebted to one in forty pounds, and the Execu­tor pays but twenty pounds, and gets an Acquittance for the whole forty pounds; yet this Acquittance shall not prejudice any other Creditor [Page 189] but for twenty pounds onely, and the other twenty pounds shall be as­sets in the Executors hands still. 8 Jac. C. B. Turners ca. Co. 8 li. fol. 132. Bro. Exec. 6. Swin. part 6. sect. 16.

297. If a man Devise his Lands for three 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 [Page 190] Money, that gain shall be assets in his hands. Brownlowes 1 part Rep. fol. 77.

300. If an Executor pay Funeral­expences, 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 Crompton [...] [Page 191] 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. R [...] 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 [Page 192] 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 pl [...]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 [Page 194] 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, ye [...] 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 suu [...] contra se aperuit; nam expressa no­cent, quae tacita non nocent. 2 Ja [...] C. B. Reads case. Co. 5 li. fol. 33, 34. Swin. part 6. sect. 22. M. 3 Car. [...] [Page 195] Whitmore and Porters case. Cro. 1 part Rep. fol. Vide [...]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 [Page 196] 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 the two Chief Justices and Chief Baron, or two of them, shall have power to make such Writs to be directed to such Sheriffs as to them shall seem fit, to make Proclamation in such pla­ces within twelve days after the deli­very of the said Writs, as to the said Chancellor by advice aforesaid shall seem reasonable, that the Offenders appear in the Kings Bench at the day limitted in the Writ; which Procla­mation shall be made fifteen days be­fore the day of appearance, when if the Offender appear not, he shall be attainted of Felony; and if he ap­pear, the Justices shall commit him to prison, there to remain until he [Page 197] have answered the Executors in their Actions, and the same Actions be de­termined; provided that they be pur­sued with effect, and not slackly: but if the Offenders procure two suffici­ent men to be bound with them in Recognizance to the Executors in the same Court where they stand committed, to keep such day as they shall have by the Court, then the Justices there may bail them; and if the Goaler let them go at liberty without the Justices Order, he forfeits forty pounds. Stat. 33 H. 6. cap. 1. Wingates Abr. Stat. tit. Executors.

310. If any person shall obtain a­ny Goods or Debts of an Intestate, or Releases or other discharge of a­ny Debt or Duty, (which belonged to the Intestate) by fraud, (as by pro­curing the Administration to be granted to a Stranger of mean E­state, and not to be found, with in­ [...]ent thereby to obtain the Intestates Estate) and not upon valuable consi­deration, or in satisfaction of some [Page 198] just Debt, answerable to the value of the Goods so obtained; in such Case such person shall be chargeable as Ex­cutor of his own wrong, so far as the value of the Goods or Debts so ob­tained shall amount unto: howbeit, he shall also be allowed such reason­able deductions, as other Executors or Administrators ought to have. 49 El. cap. 8. Winga. Abr. Stat. tit. Exe­cutors.

311. Note, that the time wherein he that is named Executor in the Testa­ment is to deliberate and determine whether he will accept or refuse the Executorship, is left to the discretio [...] of the Ordinary, who not only within the year (allowed by the Civi [...] Law) but within a Moneth or two may cite him to accept or refuse the Office. Swin. part 6. sect. 4. Refor. L [...] gum Eccles. tit. de Testamentis, cap. 34▪ pag. 143.

CHAP. X.
Of making of an Inventary, proving of the Will, with the Fees thereof, and before whom it ought to be proved; and of passing an Account, and paying of Mortuaries.

312. WHen an Executor intends to accept of the Office, it behooves him to make an Inventary of the Testators Goods; for if he meddle with the Goods, and refuse to make an Inventary, he may be pu­nished by the Ordinary; but he may meddle with the Goods as to the discharging of Funerals, or disposing of such things as cannot be preserved and kept till the time of making the Inventary. Swin. part 6. sect. 6 and 8. 21 H. 8. cap. 5.

313. And as for the time of ma­king the Inventary, it is left to the [Page 200] discretion of the Ordinary, who may appoint a longer or shorter time, ac­cording as the distance of the place where the Goods remain, or other circumstances shall minister occasion. Lyndwood in C. Stat. verb. Arbitrio. Swin. part 6. sect. 8. num. 1.

314. And as for the form thereof, it ought to be made by two at the least, to whom the Intestate was indebted, or left any Legacie; and upon their refusal or absence, two or more other honest men may by the Executors appointment make the Inventary of all the Goods and Chattels, Rights, Wares and Merchandises as well moveable as not moveable what­soever, that were of the person de­ceased; and the same must be In­dented, whereof one part is to re­main with the Executor, and the other with the Ordinary, where the Executor must swear that the same is true: and the usual course in making of such Inventaries, is first to set down moveable Goods, beginning [Page 201] with his Purse and Apparel; then Houshold-stuff as it stands in every Room, beginning in the Hall, and so from Room to Room in order throughout the House; then Corn in the Barnes or Garners, or ready sown in the Fields; then Cattle, Husband-geer, as Ploughs, Carts, &c. then in moveable Goods, as Leases of Lands or Tenements; and after that, the Debts due to the Testator; and oftentimes, at the lower end of all, the Debts owing by the Testator to other persons. 21 H. 8. C. 5. Franc. Porcel. Trac. de Inve. Swin part 6. sect. 9. Refor. Legum Eccles. C. de Te­stamentis, sect. 20.

315. Note, that the Goods in the Inventary ought to be particularly prized and valued according to rea­sonable prizes, and not hudled up together several things in a gross sum: but those Goods which do belong to the Heir after the Testators death, must not be put into the Inventary; neither may those Goods called Bonae [Page 202] Peraphernalia, (which is the Wives convenient Apparel agreeable to her Quality) be put into the Inventary: nay, such is the general custom with­in the Province of York, that Wi­dows are there not onely tolerated to reserve to their own use their conve­nient Apparel, and a convenient Bed and Furniture; but also a Coffe [...] or Box with divers things therein, as Jewels, Chains, Borders, and other things necessary for their own per­sons. Swin. part 6. sect. 9. num. 5. Johannes Garsi. Tract. de expensis, fol. 182. Perkins, sect. 526. Noyes Max. pag. 107. Swin. part 6. sect. 7.

316. Certain Jewels to the value of 500 Marks, were allowed to a Viscountess, as her Peraphernalia, and accounted but a reasonable allow­ance for one of her degree. Viscountess Bindons case. Abr. Mores Rep. pag. 72. pl. 338.

317. But note, if the rest of the Goods will not suffice to pay the Husbands Debts then are the Wives [Page 203] Jewels, Chains, Borders, and such­like, (being things of Decency or Ornament, and not of Necessity) to be put into the Inventary amongst other Goods of the deceased, towards the payment of his Debts. Swin. part 6. sect. 7. num. 5. in fin.

318. Note also, that the Husband may Devise such Chains and Jewels, &c. though he leave sufficient Assets besides to pay his Debts; and in such case the Wife shall not have them as her Peraphernalia▪ but if the Husband make no Gift or Devise of them, and leave Assets besides to pay his Debts; then the Wife in such case may keep them in despite of the Execu­tors or Administrators. Tr. 8 Car. 1. B. R. Lord Hastings and Sir Archibald Douglas ca. Cro. 1 part Rep. fol. 251, 252, 253. And See Davenports ca. 5 Car. 1 in Chancery. Compl. Attor. pag. 305.

319. If any Creditor or Legatary do affirm that more Goods came to the Executors hands, then are named [Page 204] in the Inventary, he must prove it; for otherwise Credit is to be given to the Inventary. Maschard. de probac. Conclusio 939. Swin. part 6. sect. 10. Reforma. Legum Ecclesiast. tit. de Te­stamentis, cap 21.

320. If there be several Executors, and one of them exhibits an Inventa­ry; this shall not charge the other in an Action brought against them; but the party that sues must prove that such Executor hath actually Admini­stred, and that Goods came to his hands, or else he shall not be char­ged. Lent Assizes apud Ebor. 8 Car. 1. Irelands case. Claytons Rep. pag. 106. pl. 179.

321. After an Inventary made as afore declared, then the Executor is to prove the Testament before the Ordinary, or other Judge to whom the Probat thereof belongs; and if the same be not in the Executors pos­session, but in some others hand, then he may cite such person before the Ordinary, and force him to exhibit [Page 205] the same. Perkins, sect. 486. Swin. part 6. sect. 12.

322. Note, that all Testaments ought to be proved before the Ordinary, except in spiritual places, where the Lords have the Probat of their Te­nants Testaments before their Stew­ards or themselves, in their Tempo­ral Courts. Perkins, sect. 486.

323. If a Lord would have the Probat of a Testament made within the precinct of his Mannor, he can­not prove a Testament made without the said precinct. 2 R. 2. Testament. 4. 11 H. 7. fol. 12. Co. 2 part Inst. fol. 231.

324. A Testament proved before the Commissary of the Bishop, or be­fore any Officer of the Ordinary de­puted to the same, is sufficient; or if it be before the Sequestrators of the Arch-Deacon of such a place, and his Seal put thereunto, it is sufficient: for all Testaments cannot be proved before the Ordinary himself; and properly the Probat of the Will [Page 206] doth belong unto him to whom the Sequestration doth belong. 3 E. 3. Testamen. 5. 1 Hen. 6. 1. 11 H. 4. 64. Perkins Sect. 490, 491. Tr. 7 E. 4. fol. 14. a.

325. A Testament after it is pro­ved, is of so great force, that a man shall have no direct Travese against it, because it being to be tryed by the Certificate of the Ordinary, it is supposed that he will not certifie contrary to that which is shewed un­to the Court under his Seal: but if a man be sued by an Executor after Probat, though he can have no Tra­verse to the Testament, yet he may say that the Testator made not the Plaintiff Executor. 18 E. 2. Testamen. 6. Perkins, sect. 493.

326. Note, that the proving of the Testament is done two manner of wayes; either by common form, or form of Law: the common form is, when the Executor after the Testa­tors death presents the Testament to the Judge, and produceth Witnesses [Page 207] to prove the same viva voce, with­out citing or calling of such as have interest therein; and thereupon the Judge doth annex his Seal to the Te­stament. 21 H. 8. C. 5. de Castr. Consil. 99. vol. 1. Swin. part 6. sect. 14.

327. When it is proved in form of Law, then the Widow or next of Kin to the deceased, to whom Admini­stration should belong if the party had dyed Intestate, are cited to be present, and the Will is exhibited, and the Witnesses examined private­ly every one of them, as well to the Articles exhibited on the Executors part, as to the Interrogatories Ad­ministred on the Widow or other ad­verse parties behalf; and so accord­ing to the sufficiency of the proof, the Judge doth pronounce either for the validity of the Testament, or against it, according to his discretion. Paul. de Castr. Con. 96. vol. 1. Swin. part 6. sect. 14. num. 3.

328. When a Testament is proved after the common form, the parties [Page 208] interested may force the Executor to prove it over again in due form of Law, which may indanger the Te­stament if the Witnesses be dead in the mean time; unless it be after ten years space, for then it shall be pre­sumed, that necessary solemnities have been observed: but on the contrary, if it be once proved in form of Law, the Executor is not compellable to prove the same any more. Socin. Jun. Consil. 89. vol. 1, Swin. part 6. sect. 14. Paul. de Cast. Consil. 96. vol. 1. And Simo de Praetis. Interp. ult. Volunt. li 2. Dub. 2. Soluc. 3. sect. 207. num. 4 and 5.

329. Note, when any one intends to plead any thing against the validi­ty of a Testament, they ought to do it at the time of the proving it, or within a year after, unless they were at such time Infants, or in Travel beyond the Seas, so as they could hear nothing of it; and then they shall have six months after their return from Travel to plead against it, and [Page 209] the Minors a year after they come to full age: and if such parties exceed their limitted times, then they are excluded from any remedy, unless it be in case where the Testa­ment was not at first proved in form of Law, but after the common form; for then they may cause the Testa­ment to be proved over again at any time within ten years, and alledge what they can against it. Refor. Leg. Eccles. tit. de Testamentis, cap. 6.

330. If any shall exhibit a false Testament, or any ways pervert a true Testament, by adding, diminish­ing, changing, or interlining the same, and is openly convinced of such crime; they shall thereby be excluded from all benefit accrewing to them by such Testament. Refor. Legum Eccles. tit. de Testamentis, cap. 39.

331. If an Executor or Admini­strator be ancient, sickly, or live far distant from the Court where he should have the Probat of the Will, [Page 210] or Letters of Administration; then he may in such case have a Commissi­on directed to two Neighbour-Mini­sters to take his Oath, and upon re­turn thereof have the Probat under Seal.

332. As touching the Fees taken for Probat of Wills, &c. they vary according to the custom of several places; but where the Inventary ex­ceeds forty pounds, the usual Fees are between five Nobles and forty shillings, if it be by Commission; and if it be not by Commission, but that the Executor go himself to the Ordi­nary, or other Ecclesiastical Judge, who hath the granting of the same; then it will not cost so much by 13 s. 4 d. or there abouts.

333. But if these Officers could be brought to walk by the Rules of the Statute, the Fees would be far less; for by the Stat. of the 21 H. 8. cap. 5. it is enacted, That if the goods of the Testator do not exceed five pounds, that then there is onely due to the [Page 211] Scribe for writing the Probat of the Testament, six pence, but nothing to the Ordinary or his Official, &c. for the Probat thereof and putting to his Seal: but then the Testament must be exhibited to him in writing, with wax thereunto affixed ready to be sealed and proved Communi forma; and in such case he is to dispatch the party without delay: and no more is due then six pence for granting Administration, where the Intestates goods do not exceed five pounds, as abovesaid. Wingates Abr. Stat. tit. Prob. of Testam. 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; [Page 212] and two shillings and six pence to the Scribe for Regist [...]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 [Page 213] 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 [Page 214] 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 [Page 215] 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 [Page 216] prejudice those Diocesses where by composition or custom Bona Nota­bilia are rated at a greater sum. Book of Canons, pub. 1 Jac. Anno Domin [...] 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 Prerogative­Court before him the said Judge [Page 217] 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 parti [...] more then su [...]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, [Page 218] 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 no [...] v [...]yd, but only voydable by Sentence, for that the Metropolitane hath Jurisdi­ction over all the Diocesses within his Province. 22 El. [...]. [...]. Veer and Jeffer [...]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 payment of the Testators [Page 219] Debts, then the Ordinary used to ap­point the payment of such Residue to Pious uses: but this is now of little use; for at this day the Ordinary cannot compel the Executor to make such distribution; for if any thing re­main, the Executor or Administrator may keep the same, and convert it to their own use. Swin. part 6. sect. 20. num. 2.

246. Upon the passing an Account as aforesaid it was usual to call the Creditors to whom the Testator was indebted, and also the Legataries, and all others having interest, before the Ordinary to whom the Probation ap­pertained; and they were to hear the Account: and if it appeared to the Ordinary that the Executor had faithfully executed his Office, and ful­ly Administred; then he might acquit the Executor, and give Letters of dis­charge from being any further trou­bled, at least in the Ecclesiastical Court: but if the Account were made in the Creditors absence, and they [Page 220] never called, such Account doth not prejudice them. Swin. part 6. sect. 20. Lindwood in C. Statut. sect. E [...] ­postquam verb. Ordinariis.

347. And if any inferior Judge un­der the degree of a Bishop, should grant unto any Executor Letters o [...] Acquittance or final Discharge before a Lawful Account made, that Judge is ipso facto suspended ab ingressu Ec­clesiae by the space of six Moneths, and the Executor doth receive no benefit by such acquittance. Lind wood in D. C. in sin. verb. Acquietantiarum. Swin. part. 6. sect. 21. num. 3.

348. As touching Mortuaries, it i [...] enacted by Authority of Parliament, That no Parson, Vicar, Curate, Pa­rish-Priest, nor any other Spiritual Parson, nor their Farmers or Leassees, shall demand any Mortuary for any person dying, but in such places on­ly where Mortuaries have been used to be payd and given in those places, according to the rates hereafter men­tioned; and that no person pay in [Page 221] more places then one, and that is in the place of their most dwelling or habitation. 21 H. 8. C. 6. Swin. part 6. sect. 16. Wingate Abr. Stat. Tit. Mortuaries.

349. If a Person at the time of his Death be not worth in Moveable Goods to the value of ten Marks, no Mortuary is then due; if he be worth [...]en Marks or more, clearly above his Debts payd, and under thirty pounds or above, and under fourty pounds, [...]hen a Noble is due; and if he be worth forty pounds or above, to any sum whatsoever, then ten shillings is due: [...]nd if any of the Persons before na­med take more then is here set down, [...]hey forfeit forty shillings, and so much more as they took more then their due: and in such places where [...]ss hath been accustomed to be paid, [...]o person shall be compelled to pay more then according to the custome [...]n such place. Wingates Abr. Statut. [...]it. Mortuaries▪ 21 H. 8. C. 6. Swin. part 6. sect. 16.

350. Note, that no Mortuary is [...] be payd for a Woman being Cover [...] Baron, nor for a Child, nor for any person not keeping house; and if [...] way-faring man dye, his Mortuary i [...] to be payd in such a place where he had the most habitation, if Mortua­ries be accustomed to be paid in such place. Wingates Abr. Stat. Mortua­ries. 21 H. 8. C. 6. Swin. part 6. sect. 16.

351. The Bishops of Bangor, Lan­daff, St. Davids, and St. Asaph, and the Arch-Deacon of Chester, may take such Mortuaries of their Priests with­in their Diocesses and Jurisdiction [...] as heretofore hath been accustomed▪ 21 H. 8. C. 6. Swin. part 6. sect. 16. Wingates Abr. Stat. Tit. Mortua­ries.

352. Where Mortuaries are due they are to be payd out of the death▪ part only, and not out of the whole before Division, where the Widdow and Children are to have their rea­sonable parts; and such Mortuary is [Page 223] to be payd before any other Legacy whatsoever. Hostiens▪ in C. conque­rente de Offic. Ordin. verb. Mortuar. Swin. part 6. sect. 16. in fin.

CHAP. XI.
Of the Power of the Ordinary in granting Administrations, and some few Cases touching Appeals, and also of the Office of an Admi­nistrator, and how far the Ordina­ry is chargeable for the Intestates Debts.

353. ORdinary in the usual and common sence signifieth a Bishop, and is derived ab ordine; but generally by the Law Ordinarius is not only taken for a Bishop, but every one that is in loco Episcopi, as Guardians of the Spiritualities, and such as have peculiar and exempt ju­risdiction Ecclesiastical, and be im­mediate [Page 224] Officers to the Kings Courts of Justice. Co. on Litt. fol. 344. 18 El. Dyer, fol. 350. Regist. fol. 67. Co. 2 part Inst. fol 398.

354. If a Caveat be entered with the Bishop, that he should not ad­mit any without giving notice; yet notwithstanding he may admit one to the Administration: but if it be one who hath no right that is admit­ted, he is then a disturber; otherwise the Caveat doth nothing but onely to make the Bishop careful what per­son he admits. Brownlowes Rep. 2 part fol. 119.

355. The Ordinary is to commit Administration of the goods of one dying Intestate to the goods or to the next of his blood, if they will ac­cept it, or to both: and where di­vers are next of blood, and in equa­lity of degree, and do claim Admi­nistration; in such case he may grant it to which of them he pleaseth: or, where one claimeth as next of blood to the Intestate, where in truth divers [Page 225] are in equality of Kindred; here the Ordinary shall be at his choice to ac­cept one or more making Request: and where but one or more, and not all are in equality of Kindred, and do make Request, the Ordinary is at liberty to admit the Widow, and him or those onely making Request, or any one of them, at his pleasure: and if the Ordinary do not observe these Rules, he forfeits ten pounds, by the 21 H. 8. c. 5. 21 H. 8. c. 5. Fynch li. 2. c. 15. pag. 174, 175. Noyes Max. pag. 105. Styles Regest. practicale, pag. 22. Mich. 24 Car. 1. B. R. Reformat. Le­gum Ecclesiast. tit. de Testamentis, c. 42.

356. One of the half-blood is in as equal degree of Kindred, to have the Letters of Administration com­mitted to him, as one of the whole blood is. Mich. 23 Car. 1. B. R. Styles Rep. fol. 74, 75. and Pasch. 24. c. 1. B. R. Hill and Brides case. Styles fol. 102.

357. If the Ordinary take any [Page 226] Reward or Fee for preferring of any one person before another to the Ad­ministration, it is Bribery, and punish­able with Fine and Imprisonment at the Kings pleasure, and frequent­ly loss of their place. Co. 3 part Inst. fol. 148. cap. Bribery in fine.

358. When the Widow or next of [...]in are cited and refuse the Admini­stration, then the Ordinary may grant it to some of the Creditors, or to some other such as he thinks fit. Hernes Law of Conveyances, pag. 86.

359. VVhere divers are made Ad­ministrators, they have but one joynt Interest, and therefore one of them cannot discharge a Debt by himself in prejudice of the others, as one Ex­cutor may do, as is shewed before in the ninth Chapter; but in such case all the Administrators must joyn. Herns Law Convey. pag. 88.

360. If Administration be unduly gra [...]ed to such a person as ought not to have the same; in such case the Ordinary may revoke the same af­terwards: [Page 227] but if it be duly granted to those who of right ought to have the same, then he cannot lawfully revoke it; and if there be a suit de­pending to that purpose in the Spiri­tual Court, a Prohibition will be granted. Clerks ca. M. 20 Jac. B. R. Rott. 2196. Vide Cro. 1 part, Fotherbies ca. and Pasc. 21 Car. 1. B. R. Bettes­worth and Bettesworths case. Styles Rep. fol. 10.

361. If Administration be unduly granted by the Ordinary of an infe­riour Diocess, the party grieved can­not have a Prohibition at the Com­mon Law, but he must appeal to the Metropolitan or Arch-bishop of the Province, from thence to the Court of Delegates; for the Stat. of 21 H. 8. doth not say that the Administra­tion shall be committed to the next of blood, or else the Administration to be void; but that it shall be granted on such a pain: and so it doth not take away the Cognizance of the Case from the Ecclesiastical [Page 228] Judge. P. 1 Car. 1. B. R. Mayowes ca. Latches Rep. fo. 67. M. 24 Car. 1. B. R. Browne and Poynes case. Styles Rep. fol. 147.

362. If one dye Intestate, and the Ordinary grants Administration to a Stranger, and the next of Kin sues a Citation out of the Spiritual Court to have the Administration revoked, and pending the Suit the Administra­tor sells the goods to defeat the next of Kin, and then the Letters of Ad­ministration granted to the Stranger are revoked and made Null by Sen­tence; yet in this case the sale by the first Administrator is good: but if the next of Kin had appealed to have the Administration revoked, and pending the appeal the first Admi­ministrator sels his goods; then in such case the sale is void: and so note the difference between a Suit by Ci­tation to revoke a former Admini­stration, and an appeal; for an appeal doth suspend the former Sentence. 37 El. B. R. Packmans case. Co. 6 ii. [Page 229] fol. 28. Vide Harlings case. Claytons Rep. 25.

363. VVhere an appeal is made, and the first Administration is con­firmed, then the use is to send back the Cause to the Court from whence it came by appeal: but when the first sentence is reversed, then the first Court is outed of its jurisdiction, and the Court which reverses it shall commit the Administration de novo. P. 1 Car. 1. B. R. Reeve and Dennyesca. Latch. 85.

364. Appeals in Cases Testamen­ry, Matrimony and Tythes, must be sued from the Arch-Deacon or Offi­cial (if the matter be there com­menced) to the Bishop of the Dio­cess; and from the Bishop Diocesan, or his Commissary in such Case, (or when the matter is there commenced) within fifteen days after sentence gi­ven, to the Arch-bishop of the Pro­vince and no farther, but there to be definitively adjudged. See num. 368. 24. H. 8 c. 12. Wing. Abr. Stat. [Page 230] tit. Appeals to Rome, num. 5. Co. 4 part Inst. fol. 339.

365. VVhen the Cause is com­menced before the Arch-deacon, or Commissary of the Arch-bishop, the appeal may be made (within fifteen days after sentence given) to the Court of Audience of the said Arch­bishop; and from thence within fif­teen days after sentence, there to the Arch-bishop himself, and no further: when the Cause is commenced before the Arch-bishop himself, it was to be determined there without further appeal, by the Stat. 24. H. 8. c. 12. 24 H. 8. c. 12. Wing. Abr. Stat. tit. Appeals to Rome num. 6 and 7. Co. 4. part Inst. fol. 339.

366. But see the Stat. 25 H. 8. where it is added further, that ap­peals shall be from the Arch-bishops Courts to the King in his Chancery, where a Commission shall be award­ed under the Great Seal to certain persons to be named by the King, for the determination of the said ap­peals, [Page 231] and from thence no further; and these Commissioners are called Delegates, because they are de­legated by the Kings Commission. Co. 4. part Inst. fol. 339, 340. 25 H. 8. c. 19. Wingates Abr. Stat. tit. Ap­peals to Rome, num. 4.

367. When the Cause or Suit con­cerns the King, the party grieved may (within 15 days after sentence given) appeal from any of the said Courts Ecclesiastical to the higher Convocation-house of that Province, and no further; and there to be fi­nally determined. 24 H. 8 c. 12. Co. 4 part Inst. fol. 323 and 339. in fine.

368. Appeals from places exempt which were before to the See of Rome, shall be into the Chancery ut supra, and not to the Arch-bishop; and shall be determined by the De­legates. 25 H. 8. c. 19. Co. 4 part Inst. fol. 340.

369. But note, that where it is said in the case aforesaid, upon the Stat. [Page 232] of the 24 and 25 H. 8. that the sen­tence shall be definitive upon certain appeals there mentioned; yet not­withstanding, the King as Supream Head, upon complaint to him made, may grant a Commission of Review; for so the Pope used to do as Supream Head; and the same power which the Pope had formerly, doth now of right belong to the Crown, and is annexed thereunto by the 26 H. 8. c. 1. and 1 Eliz. c. 1. And so it was re­solved, Tr. 39 El. B. R. where the case was, that sentence being in an Ec­clesiastical cause in the Country, the party grieved appealed to the Arch­Bishop where the first sentence was affirmed; from thence he appealed to the Delegates, before whom both the former sentences were repealed, and made void by definitive sentence: and thereupon the Queen as Su­pream Head granted a Commission of Review ad Revidendum the sen­tence of the Delegates. Co. 4 part Inst. fol. 341. Tr. 39 tit. B. R. [Page 233] Hollingworths case. Ras [...]al Rome 389.

370. If the Ordinary knowing that there is a Testament and an Executor named therein, will notwithstanding grant Administration of the deceaseds Goods, not having first called the Ex­ecutor before him to prove the Will, or to accept or refuse the Executor­ship; then in such case, when the Excutor shall prove the Will, he may sue the Administrator in an Action of Trespass, notwithstand­ing the Administration granted by the Ordinary. Swin. part 6. sect. [...].

371. If a man be Executor to one who was Administrator to another man, in this case he shall not have ad­ministration of such Goods as his Te­stator had by vertue of the Admini­stration; but the Administration thereof shall be committed to the next of Kin to him that dyed first. Vi­de H. 43. El. C. B. Thorns case. Goldes. Rep. pag. 182. pl. 118. Hernes Law [Page 234] Convey. pag. 88. Fitz. Abr. Tit. Ad­min. num. 3. Swin. part. 6. sect. 3. num. 12.

372. If an Executor in an Action brought by him recovereth, and af­terwards dyeth Intestate, and then Administration of the Goods of the first Testator is committed to J. S. in this case J. S. before the Stat. of the 17. Car. 2. could not sue out Execu­tion upon such Recovery, but was to begin a new; because he comes in paramount to the Executor, and claims immediately from the first Te­stator: but see now the late Act made at Oxford 17 Car. 2. for avoyding of unnecessary suits and delays, it stands on continuance for five years, and from thence to the end of the next Session of Parliament. Co. 5 lib. fol. 9. in Brudenels ca. Cro. 2 part. Yare and Goughs ca. 1 Jac. B. R. and M. 4. Car. 1. B. R. Snape and Norgate [...] ca. Cro. 3 part, and Mores Rep. Levet and Lewkners case: but see now the Statute at Oxford 17 Car. 2. [Page 235] for avoyding unnecessary suits and de­lays.

373. If an Administrator during Minority of an Infant-Executor, re­cover in Debt, and the Executor comes to age before Execution taken out; in such case he may sue out a spe­cial Scire facias upon the Record, and so sue out Execution in his own name. Vide 27 H. 8. fol. 7. a. Brownlows Rep. 2 part pag. 83, 84.

374. An Administrator is not lya­ble to an Action for a Debt upon a Contract of the Intestates. Mich. 30, 31 El. B. R. Hughsons and Webbs ca. Cro. 1 part.

375. But if the Administrator after the Intestates death promise to pay such a Debt; if there be a considerati­on to ground the Action on, it is bind­ing. As thus: the Husband was indeb­ted to another man upon a Contract for Beer, and dyed Intestate; the wife took administration, and afterwards assumed upon her self to the Credi­tor, that if he would deliver her six [Page 236] Barrels of Beer, she would not only pay for them, but her Husbands Debt also; in this case it was adjudged that Judgment should be [...]ed de bonis propriis generally, for it is be­come a Charge by her own act; and by her promise as Administratrix, [...]he hath made it her own Debt. Tr. 37 El. B. R. in Wheeler and Colliers case. Cro. 1 part. Rep.

376. A Rent was granted to the Husband and Wife for their Lives; the Rent is behind, and the Husband dyes, and then another Rent becomes in arrear, and the Wife dyes Inte­sta [...]e; and the Administrator brought an account of debt for both Rents in arrear, as well in the Husbands life­time, as in the Wives, and adjudged the Action did well lye. Mich. 42, 43 El. B. R. Temple and Temples case. Cro. 1 part Rep. fol.

377. If Administration of the deb­tors goods be committed to the Cre­ditor, it doth not extinguish the debt; but if the Creditor make the [Page 237] debtor his Executor, it is a Release in Law of the debt: but if a VVo­man-Executrix take the debtor to Husband, this is no release of the debt; for if he dye, she may sue his Executors; for the debt was but suspended during the Coverture. M. [...]1 El. B. R. Crosman and Reads case. Leonards Rep. fol. 320. Co. 8 li. fol. 135. in Sir Jo. Needhams case, and Mich. 1652. B. R. Rott. 686. Ashby and Childs case. Styles Rep. fol. 384.

378. Where an Infant is made Exe­cutor, and Administration is commit­ted durante minori aetate, and the Administrator hath goods in his hands to a great value, and the Infant at his full age releases to the Admini­strator all demands; this release shall be charged as asse [...]s in the Infants [...]ands, for so much as he released [...]o the Administrator. Mich. 15 El. [...]wens Rep. fol. 3. and M. 37 El. C. B. [...]ittleyes case. [...]odbolts Rep. fol. 29. [...]nd 30.

379. An Administrator may bring [Page 238] an Action of Trespass or Trover and Conversion, for goods taken away before he obtained the Administra­tion; for the Letters of Administra­tion shall relate to the time of the Intestates death, and not to the time of granting them. M. 1652. B. R. [...]ge and Hebbs case. Styles Rep. fol. [...] M. 3 Car. 1. B. R. Hudson and Hudsons case. Latches Rep. 214. 36 H. [...] 7. Fynches Law, li. 1. [...]. 5.

380. An Administrator may retain Money in his own hands to satisfie his own Debt, in prejudice of other like Creditors of the Intestates, aswel as an Executor may do. M. 11 Jac. Bond and Greens case. Godbolts Rep. fol. 216. Tr. 13 Jac. Rot. 1906. C. B. Waynford and Wayners ca. Brown­lows Rep. 1 part pag. 80.

381. An Administration may be granted upon Condition; and if the Condition be not performed, it may be revoked or repealed: but then i [...] the Administrator before the Conditi­on broken give away the goods, or sel [...] [Page 239] them, such acts are good. Co. 6 lib. fol. 19.

382. Note, If the Testators words be indifferent to make an Executor, or universal Legatary; a Testament, or a Codicil; in such case it is usual to commit the Administration to the Widow or next of Kin, deeming the party to have dyed intestate. Franc. Manticade conject. ult. volunt. lib. 2. Tit. 3. num. 12. Swin. part 4. sect. 4. num. 8.

383. Note, That the Ordinary may call the Administrator to account, but he cannot force him to make dis­position of the surplusage of the In­testates goods after Debts payd, by the true meaning of the 21 H. 8. C. 5. but what remains shall go to the Ad­ministrator, in case there be any more Debts to pay, which as yet are not come to his knowledge: and if the Ordinary will meddle to cause a dis­position to be made, a Prohibition will be granted against him, if the Ad­ministrator request it. M. 6 Car. 1. B. [Page 240] R. Levans case. Cro. 3 part. Rep. fol. M. 15 Jac. C. B. Tooker and Loans Ca. Hobbarts Rep. fol. 190▪ Pasc. 24 Car. 1. B. R. Hill and Birds case. Styles Rep. fol. Brownlowes 1 part Rep. pa. 32. And Vide Slawneys case. Hob. barts Rep. fol. 83.

384. An Administrator accompted before the Ordinary, and proved payment by one VVitness: and be­cause the Ordinary would not allow of proof by one VVitness, but did excommunicate the party for want of proof; a Prohibition was thereupon granted, and the Book says there, that the jurisdiction of the Spiritual Court is not taken away by the Pro­hibition, but their proceedings only, P. 2 Car. B. R. Bellamy and Aldens ca. Latches Rep. fol. 117.

385. Now as touching the Interest of the Ordinary in the goods of the Intestate that comes to his hands, note that it is only such an interest as an Administrator durante minori aetate Executoris hath, and therefore [Page 241] he cannot give nor sell the Goods of the Intestate, or do any thing to his prejudice. M. 9 El. Dyer, fol. 256. Co. 2 part Inst. fol. 398.

386. And so if the Ordinary make a Letter to one Ad colligendum bo­na Defuncti, & ad vendendum ea quae peritura essent, & inde Compa­tum reddere: In this case if the Grantee sell the Goods, he may be charged as Executor of his own wrong; for the Ordinary himself having not power to sell, cannot give more power then he hath. Swin. part 4. sect. 16. in fine. M. 9 El. Dyer, fol. 256.

387. If no goods come to the hands of the Ordinary, he is not chargeable by the Law; but if any come to his hands and possession, and he will neither Administer and pay the Debts and Duties himself, nor commit Administration to the Friends and Kin of the Intestate that would, then he is chargeable by the Law, for so much as comes to his [Page 242] hands, and is lyable to the same Acti­ons as other Administrators are: But the Ordinary cannot have an Action of Debt, Covenant, nor any other Action which belonged to the Inte­state; but he to whom he commits Administration may: so that he is subject to the charge and trouble of an Administrator, but is excluded from the priviledges belonging to an Administrator. 7 H. 4. fol. 18. F. N. B. 92. a. Co. 2 part Inst. fol. 398. West. 2. C. 19. Fynches Law, pag. 174.

388. If an Action of Debt be brought against the Ordinary for a Debt of the Intestates, after notice given him of the same, he may not Administer to others, if he have not sufficient to satisfie that debt. M. 7 El. Dyer, fol. 233.

389. If the Ordinary take goods of the Intestates into his hands, and after commits Administration, and notwithstanding still retains the goods; in this case he shall be charged still, as if he had not at all committed [Page 243] any Administration. 11 R. 2. Admin. 21. Co. 2 part Inst. fol. 398.

390. Where the Ordinary doth take goods of the Intestates, being out of his Diocess; here he shall not be charged as Ordinary, but as Exe­cutor in his own wrong. 12 R. 2. Ad­min. 21. Co. 2 part Inst. fol. 398.

391 If the goods of the Intestates come to the hands of the Ordinary, and he dyeth, his Executors or Ad­ministrators shall be charged in an Action of Debt, by the Stat. Westmin. 2. C. 19. Westmin. 2. c. 19. Co. 2 part Inst. fol. 398. Regist. fol. 141. 11 E. 3. Exec. 177.

392. Having spoken before con­cerning a Codicil, I thought good here to insert the usual form thereof, as followeth, viz.

393. Be it known unto all men by these presents, That whereas I Henry Walker of R. &c. have made and declared my last Will and Testament in writing, bearing date, &c. I the [...]aid Henry Walker by this present [Page 244] Codicil do confirm and rati [...]ie my said last Will and Testament, and do give and bequeath unto Roger My­ton of Lympton my best Suit of Clothes: and my Will and meaning is, that this Codicil or Schedule be, and be adjudged to be part and parcel of my said last Will and Testament; and that all things herein contained and mentioned be faithfully and truly performed, and as fully and amply in every respect, as if the same were so declared, and set down in my said last Will and Testament. In Witness whereof, I the said Henry Walker have hereunto set my Hand and Seal this 25th day of July, in the 19th year of the Reign of our most graci­ous Soverain Lord King Charles the Second, and in the year of our Lord God 1667.