Law, Book 2 · Chapter 15 – Chapter 16
CHAP. 15.
Of Chattells: where, of Teſtaments.
SVch thē is the nature of an hereditament in his ſundrie ſorts and kinds. Chattells are poſſeſſions wherein there cannot be ſeuerall eſtates.
All ones owne Chattels real, as (a)20. E 4. 9.a Leaſe for yeares, &c. and perſonall, as corn (b)Park. 99.growing vponupon land, but not trees, for they are parcell of the Freehold, &c. whether in poſſeſſion, or that any is indebted to him in, but not thoſe he is onelyonly to recouer dammages for, as in goods taken from him, or to bee accounted for. (c) Neither c. 7. El. Pl. 290.could the Executor at the Common Law hauehave an action of account or treſpaſſe De bonis aſportatis in vita teſtatoris, may bee giuen away or deuiſed by his Teſtament. otherwiſe called his laſt Will: & the things deuiſed are Legacies.
Teſtament is an appointment of ſome perſon, whom we call an executor, to adminiſter them for him after his death. For without naming Executors, or if they all 37. H 8. B. teſt. 20.refuſe it, it is no Will at all: yet the legacies ſhall be paid in both caſes, and the Teſtament annexed to the Letters of Adminiſtration. But is a good will of land though no Executor be named: for land is not Teſtamentarie And Adminiſtration is it which makes an Executorſhip: That if one 3. N. 67.make three Executors, and will that none ſhall adminiſter but onelyonly one; this one is ſole Executor. Alſo this Adminiſtration is for the Teſtator and his vſe, ſo as the Executors themſelues cannot make their Will (a)19. El. Pl. 325of theſe goods, nor (b)17. H. 8. 22. 21. H. 7. 29.partition between them, &c. nor the husband which marieth a wife that is an Executor, ſhall hauehave thoſe goods by intermarriage with her: neither ſhal the Executors forfeit them by outlawrie. 10. E. 4. 1.Therefore Executors repreſent the perſon of the Teſtator. So as a villeine Executor may hauehave an Action of Debt againſt Littlet. 41.his Lord, for debt due to the Teſtator. And (a) 21 H. 6 30.outlarie Excommengement, &c. is no diſhablement (b) 42 E. 3. 13.to bring an action as Executor. (c) 48. E. 3. 14.And all of them are but one perſon: wherevpon (d) 2. E. 3. Quid iuris clamatvponupon it is, That the releaſe or Attornment of one is good for both: that in an Action (e) Till the Statute 9 E. 3. cap. 3.brought againſt them, as debt, couenant, and ſuch like; one cannot anſwer without the other by courſe of the Common Law: and that they cannot hauehave euerie one by himſelfe, a ſeueral plea in abatement of the Writ, &c.36. H. 6. 17.
Yet their power, both for the time when, and the things which they ſhall adminiſter, may well enough be diuided. As a man 32. H. 8. B. exe. 155may make A. & B. his executors, & that A. ſhal not entermeddle during the life of B. or make one his Executor touching his goods in D. and another his Executor touching his goods in S.
Statutes.
32. H. 8. cap 1. He that hath Lands, Tenements, or hereditaments in Soccage, and none holden by Knight-ſeruice, or Soccage in chiefe, may deuiſe all by his Will in writing, or giuegive all by an Act executed in his life. So may he that hath land holden by Soccage in chief, & other holden of a common perſon by Soccage, & none holden by Knight ſeruice: ſauing to the king, primer ſeiſin, releife, ſuing of the ſame out of the Kings hands; fines for alienation, &c. & al other duties for the Soccage in chief, as before hath beene accuſtomed.
He that hath land, &c. holden by Knight ſeruice (whether he hauehave other lands holdē of the King, or of any other perſon, by Knight ſeruice, or otherwiſe, or not) may doe the like for two parts in three to be diuided in certaintie, for the aduancement of his wife, children, and payment of his debts. Sauing to the King the Wardſhip, or primer ſeiſin, of the third part, without any charge, dower, &c. and fines for alienation.
He that hath lands, &c. holden by knight ſeruice (whether of the King alone by a Knight Seruice not in chiefe, or of a Common perſon, or ſome holden of the King, ſome of a common perſon) and other lands in Soccage, may deuiſe by Will, or giuegive by any Act executed in his life, two parts of that holden by knight ſeruice, and all the Soccage: Sauing to the Lord of the land holden by Knight Seruice, the Wardſhip of a full third part thereof, without any charge, dower, &c.
Prouided, That euerie one ſhal ſue his liuerie, reliefe, and heriot, as if this Act had neuer been made.
34 H 8. cap. 5. The former Statute ſhall be extended to inhable deuiſes or other acts onelyonly of lands in fee ſimple.
And if the partie that maketh the Will or other Act, be ſeiſed in Coparcenarie, or in Common, it ſhal be good for ſo much as in himſelfe of right is.
The wardſhip, reliefe, primer ſeiſin, &c. ſhall be of lands that diſcend immediately after the death of him that maketh the wil or other act, as well in fee-taile as in Feeſimple: and the deuiſe of two parts reſidue ſhall be good, though it be of all his fee ſimple lands. Such a will ſhal be good for two parts (in caſe onelyonly where two may be deuiſed) though it made for the whole, or more than two parts.
Such Wils made by any woman couert, or perſon within xxj yeares of age, Ideot, or non ſane memorie, ſhall not be good.
And ſo ſome other things there, for the explanation of the former ſtatute.
Weſtm̄ 2. cap. 23. Executors from henceforth ſhal hauehave a Writ of account, and like action and proceſſe in the ſame Writ, as their Teſtator ſhould if he had liued.
4 E. 3. cap. 7. Executors ſhall hauehave an Action for a treſpaſſe done to their Teſtator: as of his goods and Chattels carried away in his life, and recouer their dammages in like manner as he whoſe executor he is ſhould hauehave done if he had liued,
The Executors muſt prooue (a)21. E. 4. 24.or make probate of the Will (to be a true one) in the Spirituall Court, and be (b)21. El. Pl. 54…ſworne to ſee it performed.
If many Executors be made, and one refuſe; yet he may adminiſter at his pleaſure, 21. E. 4. 23.and the other muſt name him in euerie Action for any dutie due vntounto the Teſtator, and his releaſe ſhall be a barre of the whole dutie. And if he ſuruiue the other Executor, he ſhall hauehave the action, and not the Executor of him that died.
Otherwiſe it is if they al refuſe, for there 36. H 69.the Teſtator dieth inteſtate.
But an Executor once adminiſtring, As 9. E. 4. 47.if he ſell land in vſe, appoints by the wil to be ſould, and the mony to be diſpoſed, &c. can neuer refuſe after.
Executors muſt anſwer all certain duties of the Teſtators, But not for (a)11. H. 4 46.a treſpaſſe done by him, burning of a Writing bailed vntounto him by Deede indented; receit (c)F N. B. 117. …. 2. H. 6. 12.of rents, or occupation of other mens lands, as Bailife, hauing ſufficient of his Chattels which we call aſſets entermaines, to doe it. And therefore ſhall bee charged of their owne goods, if they waſte the Teſtators.
But ſo, as duties that grow by ſpecialtie 11. H. 7. 1…are to be anſwered before other duties, and legacies to be laſt of al deliuered: without 21. E. 4. 21.which deliuerie, the deuiſee can neither enter (d)20. E. 4 9.into a Tearme, nor take (e)2 E. 4. 30. 37. H. 6. 30.a chattell perſonall deuiſed to him. But vponupon a leaſe deuiſed for xx: yeares to one for the fi…h x. yeares, the remainder or remnant of the terme to another: or deuiſed to one for 20. El. Pl. 519.ſo many yeares as he ſhall liue, the remainder to another: a deliuerie to the firſt Deuiſee ſerueth for him in the remainder alſo. 21. El. Pl. 539.So, though it be but the occupation of a term, which is ſo deuiſed: for the occupatiō and profits of the land is all one with land it ſelfe. But if the occupation of a Booke, 37 H. 6. 30. & per 20. El. Pl 521.glaſſe, or other Chattell perſonall bee deuiſed to one for life; and after his death, to another in like ſort: there a deliuerie to the firſt is no deliuerie to the other; for their occupations are ſeuerall, and in ſuch Chattels perſonall, the occupation is diſtinct frō the propertie.
In theſe deuiſes the Teſtators intent (ſtanding with the rules of Law) ſhall be taken. As where a man deuiſeth Lands 1…. H. 7. 13.(deuiſible by Cuſtome) to his ſonne and heire after his wiues death; the wife hath an eſtate during her life, by implication, in the intent of the deuiſe. A deuiſe to one 27. H. 8. 27.and his heires males, is an eſtate taile. But 29. H. 8 Dy. 33.a deuiſe to I. S. in fee, vponupon condition, if he pay not to I. D. a certaine ſumme of monie, then I. D. to hauehave it in fee; is a voyde Condition and remainder, for it is contrarie to Law. But a deuiſe of the Fee-ſimple to Alice S. and after her death to B. is only 19. El. Dy. 357.an eſtate for life, the remainder for life to B the remainder to Alice in fee. So as the husband of Alice (if ſhe die in the life of B) cannot be Tenant by Curteſie.
The Executor of an Executor, is Executor 10. E. 2. Ex…c. 110.to the firſt Teſtator, and may hauehave an Action of Debt for the arrerages of an Annuitie due vntounto him.
Statutes.
25. E. 3. Cap. 5. Statut. 4. Executors of Executors ſhall hauehave Actions of Debt, Account, and of goods carried away of the firſt Teſtators: and execution of Statute merchants, and Recogniſances made vntounto him.
If no Will be made, the Ordinary ſhall adminiſter al the chattels that were in his 7. El. Pl. 277.poſſeſſions. For he which had the charge of his Soule in his life, is preſumed the fitteſt perſon to hauehave the care of diſpoſing his goods in pios vſus after his death. And therefore the Ordinarie may ſeiſe the goods and muſt keepe them without waſting, & may giuegive, alien, or ſel them at his wil, and diſpoſe the monie comming therof ad pios vſus. And if he doe not ſo he breaketh the confidence which the law repoſeth in him. But yet this gift or alienanation remaineth good by law. Howbeit being a ſpirituall gouernor he ſhall not be ſubiect to temporall ſuits, nor hauehave any Actiō of debt or otherwiſe for any thing due to or by the inteſtate.
Statutes.
Weſtm̄ 2. cap. 19. The Ordinarie ſhall anſwer for debts wherein the Inteſtate was bound, as Executors ſhould.
31. E. 3. cap. 11. The Ordinaries ſhall depute next friends of the inteſtate to adminiſter his goods, who ſhal ſue and be ſued, and be accountable to the Ordinarie, s as Executors ſhould.
21. H 8. cap. 5. Adminiſtration ſhall be committed to the widdow of the Inteſtate or to the next of his bloud, or to both, at the diſcretion of the Ordinarie. Where diuers perſons next of the bloud (which in deede are in equality of degree with the inteſtate) claim adminiſtratiō, or wher one only claimeth it as next of the bloud (where in truth diuers are in equalitie of kindred, as aforeſaid) the Ordinarie ſhal be at his choice to accept one or moe, making requeſt. Where but one or more, and not all (being in equalitie of kindred) make requeſt; the Ordinarie ſhal be at libertie to admit the widdow, and him or thoſe onelyonly making requeſt, or any one of them, at his pleaſure. The Ordinarie ſhal commit adminiſtration according to the rule aforeſaid, vponupon paine of ten pound.
The Statute Magna Chart. Cap. 18. is, That the Kings debts ſhall be leuied of the dead mans goods, and the ſurpluſage deliuered to the Executors Saluis pueris, & vxori rationabilibus partibus, which proueth that this rationabile parte was at the Common law.
But (a)Magn. Charta cap. 28. 16. &c. v… in F. N. B 122. l. … Br. ration part. 6.whether any Will be made or no, his wife, and ſuch children as are not aduanced by him in his life (as if a daughter be couenably married by him, this is a (b) 3. E. 3. d…t. 156ſufficient aduancement) ſhall hauehave a part to their owne vſe; that is to ſay, one third of all (after his debts payd) to his wife, and the other to his children. And a Writ de rationabili parte bonorum is giuen to recouer it.
CHAP. 16.
Of Chattels reall.
CHattels, are Reall, or Perſonall. Reall; as termes for yeares, and wardſhips, whereof wee hauehave ſpoken before.