The Orphans Legacy, Part 2 · Chapter 13
CHAP. XIII. Of the Executors Rights excluſively to the Heirs.
1. The ſeveral diviſions and diſtinctions of ſuch things as come to the Executor; and what Chattels are.
2. Of ſuch Chattels real, living and moveable, as accrew to the Executor.
3. Of ſuch Chattels real, without life and immoveable, as go to the Executor.
4. Of Chattels perſonal, living and moveable, belonging to the Executor.
5. Of Chattels perſonal, without life and moveable, pertaining to the Executor.
6. Several Laws in reference to this ſubject.
1. ALL things that come unto an Executor may be divided into things poſſeſſory and actually in the Teſtator, or into things only in action and not actually in him; and the things poſſeſſory may be divided into Chattels real and immoveable, or into Chattels perſonal and moveable. Again, the poſſeſſory Chattels real may be divided into things living, or into things without life. Alſo the perſonal Chattels or Goods moveable may be divided into things living, or things inanimate and without life. There are alſo comprehenſive of ſome of theſe, Chattels principal, and Chattels acceſſory that follow the principal. So that Chattels are all poſſeſſions of Goods moveable and unmoveable, except ſuch as are in the nature of a Free-hold or parcel of it. And they are called real or immoveable, either becauſe they are ſuch in their own nature; or becauſe they appertain to ſomething real by way of dependance, as a Box with writings of Land, the body of a Ward, the fruit of a Tree, or the Tree it ſelf upon the Land; or becauſe they iſſue out of things immoveable and of a more real nature, as Leaſes for years, at Will, Wardſhips, Tenants Eſtates by Statute Merchant, Staple, or Elegit, and Grants of the next Advowſon.
2. The Chattels Real, Living and Moveable, which did accrew to the Executor, were ſuch as theſe, viz. Wardſhip, being a real Chattel in reſpect of a Tenure of Land, whereby was intended ſuch Wardſhip as was by Knights Service, and not ſuch as is by Socage Tenure; alſo a Villain for years, as by Grant for a Term from him that had the Inheritance.
3. The Chattels Real without Life and Immoveable, that go to the Executors, are generally and for the moſt part in Houſes or Lands, by Leaſe, or extent upon Judgements, Statutes, or Recognizances; or in things iſſuing out of Houſes or Lands, as Rents, Commons, and the like; as arrerages of Rent behind at the Teſtators death; alſo Advowſons, Tithes, Fairs, Markets, Profits of Leets, and the like which the Teſtator had only for years. Alſo, the Title accrewed to the Crown upon Attainder of Felony, where the party held not of the King, viz. the Annum, Diem & Vaſtum, that is, power not only to take the Profits for a year, but alſo to waſt and demoliſh, &c. is but a Chattel; And therefore though granted to one and his Heirs by the King, yet ſhall go to the Executor not to the Heir. aNo. Na. Bre. 88. Reg. Orig. fol. 102.Alſo, a Leaſe for years determinable upon lives, which is a Chattel, and ſhall go to the Executor; b37. Aſſ. p. 11. An Executor of a Lord ſhall have Fines Aſſeſſed upon the Tenents at their admittances in the Lords time.As alſo doth an Extent upon a Statute. Likewiſe, if a Termer for years grant his Term by Bequeſt or otherwiſe to A. and his Heirs; if A. dies, his Executors, not his Heirs ſhall have it, for it is no Inheritance. Or if ſuch a Termer grant a Rent out of the Land to A. and his Heirs, or the Heirs Male of his body, yet ſhall it go to the Executor not to the Heir, for it being derived out of a Chattel, it ſelf remains a meer Chattel, and becomes not any Inheritance. Rent.cOffic. Exec. cap. 5.Alſo, if a Rent be granted out of Land to one in Fee-Simple, Fee-Taile, for Life or Years, and it be not paid to him in his life-time, the Arrerages ſhall go to his Executor not to his Heir. Or if a man ſeized of Land and poſſeſſed of a ſtock of Cattel, Let it for Years and Covenant with the Leſſee that he pay to Him and his Wife, their Heirs and Aſſigns, one hundred pound per annum during the Term; in this Caſe after the death of the Leſſor, his Wife ſurviving him, her Executor and not his Heir ſhall receive this payment. dDye…. 275.Again, if A. grant the next Preſentation of the Church of B. unto D. In this Caſe if D. dies, his Executor ſhall have it as a Chattel. eDyer. 283. 34 H. 6. 27. Preſentation.Not the Heir. Or if A. grant a Leaſe for years of Land to D. and his Heirs, and dies; his Executor and not his Heir ſhall have this Term. fCoke 10. 87. Littl. Sect. 740. Fitzh. Account. 56. F. N. B. 120. & Brownl. 1 part. 77. 106. Terms of years.And if A. poſſeſſed of a Term of years of Land, grant it by Deed, or give it by Will to D. and his Heirs, or to D. and his Heirs Males, or deviſe it by Will to B. for life, the remainder to D. and his Heirs; in theſe Caſes D. ſhall have theſe Terms of years as Chattels, and after his death his Executor ſhall have them. gCoke 8. 95. 10. 87. Plowd. 524. Leaſe for years.Alſo, if a Leſſee for life make a Leaſe for years abſolutely; This in Law is a Leaſe for ſo many years, if the life live ſo long, and ſhall go to the Executor after his death. hBrownl. 19. 30. 1. part. Coke 7. 12.And if one makes a Feoffment in Fee of Land, the Feoffee covenanting to do divers things to the Feoffor, and to forfeit five pound to him and his Heirs as oft as he ſhall fail performance, Forſeitures on breach of Covenants.and the Feoffee doth fail and break his Covenant divers wayes, and the Feoffor dieth; in this caſe his Executor, not his Heir, ſhall have and recover all the Forfeitures that are paſt and unpaid. Alſo if any Goods or Chattels be granted to any Heads of Bodies Politick and their Succeſſors, their Executors and not their Succeſſors ſhall have them. iSheph. Epit. chap. 155. fo. 983.In like manner, if a Leaſe for years be made to a Biſhop and his Succeſſors and he die, his Executor, not his Succeſſor, is to have it.kNew Terms of Law. Tit. Aſſigns. & Coke ſup. Littlet. 46.
4. Among the living Chattels Perſonal that go to the Executor, may be comprehended an Apprentice for years, the intereſt of a Debtor in Execution for debt, and in a Priſoner taken Jure belli. lNo. Na. Br. 88. Reg. Orig. fol. 102.Alſo Cattel of all kind; yea, and Fiſhes in a Pond, Conies in a Warren, Deer in a Park, Pigeons in a Dove-houſe, where the Teſtator was but a Termer or Leſſee thereof, for then they are to go to his Executor as Acceſſory Chattel following the State of their Principal, viz. the Pond, Warren, Park, and Dove-houſe: mOffic. Exec. c. 5. §. 1.Or if the Conies, Pigeons, or Deer were all tame, they are then likewiſe to go to the Executor, and not to the Heir; ſo likewiſe are Hawkes reclaimed; yea, it is felony to ſteal Hawkes young in the Neſt; which implyes that they are Goods and belong to the Executor.nIbid. cap. 5.
5. Chattels Perſonal, without life and moveable, as all Houſeholdſtuff, Implements and Utenſils, Money, Plate, Jewels, Corn, Pulſe, Hay, Wood felled, Wares, Merchandiſe, Ships, Carts, Plows, Coaches, &c. are evident to belong to the Executor, not to the Heir. And generally all things ſowed and not ariſing from the Earth without manuring, go to the Executors…; and ſuch things as grow of themſelves to the Heir; therefore Corn in the Corn ſtanding.field growing or ſtanding ſhall go to the Executor. oPerk. tit. Deviſe, fol. 99.Alſo Hops, though not ſowen if planted; likewiſe Hemp and Saffron do like Hops.Corn growing pertain to the Executor. Alſo after Corn reaped, and before the Tythes ſet out, the Inheritor of the Tythes dying, his Executor and not his Heir ſeems to have the beſt right to the Tythe ſet out.Tythe after ſet out. pOffic. Ex. ubi ſupra.Alſo things above ground in Gardens, as Mellons of all kind, and the like, go to the Executor, not to the Heir; as alſo all other things as have ſuch a yearly ſetting or manurance, Garden Fruits.as ſevers them in intereſt from the ſoile. qIbid.Alſo the Writings and Evidences that concern not the inheritance, but only Writings and Evidences touching Chattels.Leaſes, Terms, Goods, Chattels, or Debts, pertain to the Executor. If one that holdeth Land for the Life of A. B. ſow the Land, and A. B. happen to die ere it be ripe and cut, and he that ſo Corn ſtanding.holdeth the Land happen to die alſo before it be ripe, the Executor of the Tenant ſhall have the Corn. And if the Tenant in Tayl ſow the Land he doth ſo hold, and die ere it be cut; the Executor, not he in Reverſion, nor the Heir, nor the Iſſue in Tayl ſhall have it. Alſo, if A. make a Feoffment of Land to B. excepting Trees.the Trees thereon, which he afterwards grants to B. for years; in this Caſe the Trees are in the nature of a Chattel, and if B. dies his Executor ſhall enjoy them. rCoke 4. 63.Or if A. ſeized in Fee of Lands whereon Trees grow, ſell theſe Trees to B. who then dies before they be felled; in this Caſe the Executor or Adminiſtrator of B. ſhall have them, and may ſell or cut them down. sCoke 11. 50. & Perk. Sect. 58.Laſtly, The Executor without contradiction of the Heir may in any convenient time after the Teſtators death, enter into the houſe deſcended to the Heir for the removing and taking away of the Goods, ſo as the door be open, or at leaſt the key be in the door; t21 H. 6. 30. If other Goods chance to be taken among them, he is excuſed. 21 H. 7. 25. Vid. Lib. Intr. 640.but he cannot juſtifie the breaking open of the door of any Chamber to take Goods thence: But if the Goods be not removed in convenient time, the Heir may diſtrain them as Dammage Feſante.
6. If a Leaſe for years be made to a Biſhop and his Succeſſors, and he die, his Executor, not his Succeſſor is to have it. uNew Terms of Law. Tit. Aſſigns. & Coke ſup. Littl. 46.If a Preſentment to a Church happen to a Tenant in Tayle, and he die before he Preſents; his Executor, not his Iſſue in Tayle ſhall Preſent, becauſe the Chattel is not deveſted; Likewiſe if a Termer have Preſentation to a Church.a Preſentment which doth happen during the Term, though he do not Preſent, yet he ſhall have it. wF. N. B. 34. a. B. Perk. Sect. 97. Bodies Politick.If a Parſon, Vicar, Maſter of a Hoſpital, or any Body Politick be poſſeſſed of any Goods or Chattels in their own Right, and die, they ſhall go to their Executors or Adminiſtrators, not to their Succeſſors. xCoo. 4. 65. Perk. Sect. 58. Advowſon.If a Leaſe be made for years, or the next Advowſon of a Church, or Covenant for payment of money or the like be granted, or an Obligation made to one and to his Heirs; In all theſe Caſes he hath this as a Chattel, and it ſhall go to his Executor, and not to his Heir: So if any ſuch thing be granted to one and his Succeſſors, his Executors ſhall have it: And if the Heir or Succeſſor get the Deed, the Executor may Recover it from them. yLittl. Sect. 740. 14 H. 4. 24. 34 H. 6. 27. …. N. B. 120. Broo. Oblig. 18. 68. Fitz. Account 56. Cheſt of Writings.If one hath a Box, or Cheſt, or Trunk full of Writings at his death, and the ſame is open, not ſealed or locked; this ſhall go as Goods to his Executor: but if it were ſealed or locked, as incident to the writings, it would be the Heirs whoſe the Writings be. z22 Ed. 4. 7. & 3 H. 7. 15.If a man hath a Term, and Deviſeth the ſame to one, and the Heirs of his body; his Heir ſhall not have it, but it ſhall go to his Executors, becauſe a Term which is but a Chattel, cannot be Entayled. vid. 28 Eliz. Peacocks Caſe, and 21 Eliz. Higgins and Mills Caſe, Adjudged acc. In like manner, if a Deviſe be made of Land to one, and the Heirs of his body for Five hundred years, it is a Releaſe for years, and his Executors Co. 10. Loves 87.ſhall have it; For an Executor ſhall have all Leaſes for years; and although the Heir, and not the Executor, ſhall have the writings which concern the Inheritance, yet the Executor and not the Heir, ſhall have the Cheſt wherein ſuch writings are, if the Cheſt were 18 F. d. 4. 3. 41 Ed. 3. 2. 14 H. 4. 6. Roll. Abr. tit. Execut. lit. v.not lock'd; but if lock'd, then the Heir ſhall alſo have the Cheſt, as aforeſaid.