The Orphans Legacy, Part 2 · Chapter 14 – Chapter 15
CHAP. XIV. Of the Heirs Rights excluſively to the Executors.
1. Of things Perſonal, that go to the Heir, not to the Executor.
2. Of things Real, that belong to the Heir, not to the Executor.
3. A Law Caſe touching the ſame.
1. TO the Heir, not to the Executor, do belong Fiſhes in a Pond, Conies in a Warren, Deer in a Park, and Pidgeons in a Dove-houſe, where the Teſtator had the Inheritance in the Pond, Warren, Park, or Dove-houſe; for ſuch are not Chattels at all in that caſe, nor to go to the Executor, but to the Heir together with the inheritance. aKelways Rep. fol. 118.Alſo Graſs growing for Hay, and Trees growing or ſtanding (except as in the laſt precedent Chapter) and the Fruit thereon, go to the Heir not the Executor. bPerk. tit. Deviſe, fol. 99.Alſo, Glaſs, whether by nails or otherwiſe affixed to the windows, either by the Lord or the Leſſee, deſcends not to the Executor but to the Heir, as being made parcel of the Freehold or Inheritance of the houſe. cCoke Rep. lib. 4. in Herlakendens Caſe. in fin. fol. 63, 64.But if there be Glaſs from the windows, or Wainſcot looſe, or doors more than are uſed, that are not hanging, they ſhall then go to the Executor. dCoke 4. 63. 21 H. 7. 26.As to the Heirs Rights the Law is the ſame as to Wainſcot if affixed or faſtned to the houſe; eCoke ubi ſup. in Herlakenden's Caſe.yet by the Civil Law ſuch things as are in the houſe more for Ornament than Structure, pertain not to the houſe. fRebuff. & D. D. in L. pen. ff. de Verb. Sign.Nor is it material whether the Wainſcot be faſtned by great or little nayles, by skrews or irons thruſt through, or by other wayes or means; for it ſufficeth to make it parcel of the Freehold, and conſequently to go to the Heir not to the Executor, if it be any way affixed or In the latter end of H. ſeventh's time, an Executor taking a Furnace, which was ſet in the middle of a Room, and not fixed to any wall, was adjudged as a Treſpaſſer to the Heir.faſtned to any part of the houſe. The Law is alſo the ſame concerning all things faſtned to the Freehold or to the ground by morter or ſtone, as Tables, Dormant, Leads, Mangers, Milſtones, Anvils, Doors, Keys, Glaſs-windows and the like; for none of theſe be Chattels, but parcels of the Freehold, and therefore belong to the Heir, not to the Executor. gKelways Rep. fol. 88. nu. 2. & Labridg. dez Caſes tit. Execut. fol. 181. nu. 4. & Offic. Ex. ubi ſupra.Alſo Writings and Evidences that concern the Inheritance do pertain to the Heir; alſo the Boxes and Cheſts wherein the Writings and Evidences of Inheritance are kept, and uſually have ever been imploy'd only for that Service, ſhall go to the Heir not to the Executor, whether ſealed or not ſealed, lock'd or not lock'd. hOffic. Ex. cap. 5. & 41 E. 3. 2. & 36. H. 6. 26. & 18 E. 3. 4. & 3 H. 7. 15.Alſo in ſome Caſes Corn in the ground ſhall go to the Heir not to the Executor; for if a Leſſee for years Certain ſow the Land a little before the end of his Term, and the Term end before it be cut; in this Caſe he that is to have the Land, not the Executor of the Leſſee for years ſhall have the Corn. iDyer 316. & D. & Stud. 35. & Perk. Sect. 59.And if one be ſeized of Land in Fee, and thereof make a Leaſe for years, paying Rent at Michaelmas, or within ten dayes next after, and the Leſſor happen to die within the term after Michaelmas, and before the ten dayes expired; in this Caſe the Heir of the Leſſor and not his Executor, ſhall have the laſt half years Rent due at Michaelmas. kHill. 7 Jac. B. R. per curiam.Laſtly, Things under ground, whether in Gardens or elſewhere, as Carrets, Parſhips, Turneps, Skerrets, and other ſuch like things under ground, ſhall go to the Heir, not to the Executor.lOffic. Ex. cap 5.
2. Where a Rent is reſerved upon a Leaſe for years, there it ſhall not go to the Executor, but to the Heir with the Reverſion, other than the Arrerages of ſuch Rent as were behind at the time of the Teſtators death, for ſuch belong to the Executor not to the Heir. mSt. 32 H. 8. cap. 37. & Coke 4. 48.If A. mortgage the Inheritance of Land to B. upon Condition of Redemption by payment of one hundred pound to B. his Heir or Executor, and B. dies, the Deeds being delivered into his hands: In this Caſe the Heir not the Executor ſhall have the Deeds; for though the money may be paid to the Executor, yet in the mean time the Land deſcends to the Heir; nor is there any debt to the Executor, becauſe it is in the Election of A. whether he will pay or not. But if on the other ſide the Land had been ſold for one hundred pound not paid to A. but a Condition, that if not paid to him, his Heir or Executor by ſuch a day, then to Re-enter, and A. dieth: In this Caſe there is a debt to his Executor, and no Land deſcended to the Heir of A. yet ſhall the Heir have the Deeds, becauſe there is a Condition deſcended to him. nOffic. Ex. ubi ſupra.But if a Feoffee in Mortgage, before the day of payment which ſhould be made to him, make his Executors and die, and his Heir entereth into the Land as he ought; In this Caſe the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee: oLittl. Inſt. lib. 3. cap. 5. Sect. 339.Unleſs the Condition were, that the Feoffor pay to the Feoffee or to his Heirs ſuch a ſumm of money at ſuch a day, then it ought to be paid to the Heir. pIbid.Alſo where the Teſtator recovereth Land and Dammages, or a Deed and Dammages, and dies before Execution, the Heir ſhall have Execution for the Land or Deed, and the Executor for the Dammages; but until the Heir ſue a Scire Facias, the Executor cannot 43 E. 3. 2. 10 E. 4. 5, 6.ſue Execution for the Dammages; for Execution muſt be firſt of the Deed, then of the Dammages. Alſo, if Executors keep in their own hands for the ſpace of one, two or three years Lands deviſed by Will to be ſold for any purpoſe, converting in the mean time the profits thereof to their own proper uſe, the Heir of the Teſtator may enter to the Lands, and put out the Executor, qPerk. tit. Deviſe, fol. 104, 105. & Brook. Abridg. tit. Deviſe, nu. 19.unleſs the money for the Land to be ſold be to be diſtributed in pios uſus; rIbid.becauſe in this Caſe the Frank-tenement after the Teſtators death is in the Executors, not in the Heir: sKelways Rep. fol. 107, 108. nu. 25.for which reaſon the Heir cannot enter in this Caſe as he might in the former.
3. In an Action of Debt brought againſt Executors; They were at Iſſue if Aſſets were in their hands or not; and the Jury found by a Special Verdict, That the Teſtator was ſeized of a Houſe in Fee, and made a Leaſe thereof, and of certain Implements of houſehold in it for years, rendring Rent to Him, his Heirs, and Aſſigns; and found that the Executors after the death of the Teſtator, continually received the Rent, and prayed Advice of the Court, if the ſame were Aſſets in the Executors hands? And the Opinion of the Court was, That it was not Aſſets; for that the whole Rent was to go with the Land in Reverſion, as magis digne; and ſo did belong to the Heir, not the Executors.tHill. 20 Eliz. Dyer 361. vid. Plo. Com. 114. & 259. acc.
A man Willeth, that after twenty years after the death of the Deviſor, J. S. ſhall have the Land in Fee; the Heir of the Deviſor ſhall have the Land during the Term, and not the Executor.uDyer's Read. in St. of Wills. Sect. 3. §. 4.
CHAP. XV. What goes neither to the Heir nor Executor, and in what Caſes.
1. Bona *By the Civil Law, Bona Parapherna ſunt quae Mulier ultra dotem adfert (it is a word borrowed from the Greek) & de his bonis Maritus Adminiſtrationem habet, ità ut ſine ſpeciali uxoris mandato, & agere & convenire poſſit. Mynſ. Inſt. 97. Mention is made. thereof at the Common Law, where it is called Bona Paraphonalia. 12 H. 7. 23. 18 Ed. 4. 11. b. And the Wive's Apparel is called Bona Paraphonalia. 18 E. 4. 11. B, per Vavaſor. The Wife after her Husbands death ſhall have the apparel neceſſary for her, and not her Husbands Executor. 37 H. 6. 28. & 33 H. 6. 31. Bro. Execut. 19.Paraphernalia go neither to the Heir nor to the Exeeutor.
2. Things in joynt-Tenancy go neither to the Heir nor to the Executor.
3. Things willed by the Teſtator to be ſold for certain uſes, go to neither of them.
4. A Leaſe ſimply for Three Lives goes neither to the Heir nor Executor.
1. BY the Civil Law thoſe Goods belonging to the Wife, called Bona Paraphernalia al. hac lege. & leg. fin. Cod. de Pact. Covent. ſup. dore.deſcend neither to the Heir nor to the Executor, neither are they by that Law ſubject unto the payment of the Husbands debts: bl. ob maritorum. Cod. Ne Uxor pro Marito.But now under that notion of Bona Paraphernalia we are not to underſtand the Wifes Apparel, with her Bed, Jewels and Ornaments for her perſon, to be comprehended, but her convenient Apparel, and onelyonly ſuch as is agreeable to her degree; cDyer fol. 166.and ſuch ſhall go to the Wife onelyonly, the reſt unto the Executor. And thus much the very word being Etymologized doth imply.dWhat Paraphernalia are, ſee Alex. lib. 1. Conſil. 42. Col. 6. verſ. nec Obſtat. & Lib. 2. Conſil. 63. Col. ult.
2. The Goods and Chattels which one hath in Joynt-Tenancy with another, ſhall not on his death go to his Executor nor to his Heir, but to the other ſurviving Joynt-Tenant, and that by right of ſurvivorſhip. Otherwiſe it is with Tenants in common; for if A. and B. have Goods or Chattels in Joynt-Tenancy, and if either of them grant what belongs to him, unto a Third perſon; in this Caſe, that Third perſon, and he which kept his part unſold are Tenants in Common; and therefore if either of them Two die, the deceaſeds part of ſuch Goods and Chattels ſhall go to his Executor, and not to the ſurviving Tenant in Common. eLittl. Sect. 281. 320, 321. & Perk. Sect. 525, 526.Alſo if Husband and Wife be Joynt-Tenants of Land, and the Husband die, the very Corn growing thereon ſhall ſurvive to her, together with the Land; and though the Husband ſowed it, yet ſhall it not go to his Executor.fEliz. Dyer.
3. The Monies or Profits ariſing out of Lands Willed by the Teſtator to be ſold, are not accounted as any of the Goods or Chattels of the perſon deceaſed; g21 H. 8. 5.and conſequently do go neither to the Heir nor to the Executor, but to the uſes for which it was willed to be ſold.
4. If one have a Leaſe ſimply for Three Lives to him and his Aſſigns; this is no Chattel, therefore ſhall not go to the Executor; and it is no Land, therefore it ſhall not go to the Heir; but in this Caſe it ſhall go to him who firſt after the Teſtators death Enters and Claims it as an Occupant, if no aſſignment thereof be made in the life-time of the L…ſſee. hOffic. Ex. cap. 5.But a Leaſe for years determinable upon Lives is a Chattel, and ſhall go to the Executor. i37 Aſſ. p. 11.So alſo doth an Extent upon a Statute.