The Orphans Legacy, Part 2 · Chapter 23
CHAP. XXIII. Of Actions maintainable againſt Executors or Adminiſtrators.
1. Executors lyable to be ſued by Creditors, though their Teſtators Goods not actually poſſeſſed by them, or imbeziled from them.
2. What kind of Servants wages Executors are lyable to pay and diſcharge.
3. How Executors are lyable in Caſe of breach of Covenant by their Teſtator in his life-time.
4. In what Caſe an Executor may be lyable to pay his Teſtators Debt out of his, the Executors own proper money.
5. Several other Caſes wherein Executors are lyable to be ſued.
6. Certain Caſes wherein Executors are not lyable.
7. Several Law-Caſes touching Actions againſt Executors and Adminiſtrators.
1. ALthough the Executor hath not actually and particularly laid his hands upon any of the Teſtators Goods, yet ſhall he be ſaid to be in poſſeſſion of them, ſo as to ſtand lyable to the Creditors, ſo far as they extend in value, though afterwards others do purloyne or imbezil them.aOffic. Exec. cap. 10.
2. Executors are lyable for the payment of the wages of the Teſtators Servants retain'd in Husbandry and the like, but not for the wages of Waiters or Serving-men; the reaſon of the difference is becauſe of the Statute compelling the one, not the other to ſerve. b4 H. 6, 16.Yet for them alſo an Action did lie againſt the Teſtator himſelf becauſe of his Covenant.
3. Where a breach of Covenant happens in the Teſtators life-time the Executor ſtands chargeable; Therefore if one make a Leaſe of Land by Deed, wherein he hath nothing, and die before an Action of Covenant be brought againſt him, it will be maintainable againſt his Executor, though no expreſs Covenant. cNoke & Anders Caſe.Alſo if a Leſſee for years Covenants to repair the Buildings, or to pay the Quit-Rents iſſuing out of the Lands Lett, the Executor to whom the Term cometh muſt as well as his Teſtator perform that Covenant, although he did not Covenant for him and his Executors. dOffic. Exec. cap. 11.Likewiſe if one be Leſſee for years, or for life, without any Indenture or Deed, as he may be, e21 H. 6. 1. 44 Ed. 3. 42.and his Rent being behind dieth; In this Caſe his Executor ſhall be lyable to the payment of this Rent, though without any ſpecialty: But if the Leſſee for years ſell or grant away his Term or Leaſe and die, his Executor ſhall not be charged for any Rent due after the death of his Teſtator, though himſelf in his life-time was ſtill lyable for the Rent to grow due after, until the Leſſor accept the Aſſignee for his Tenant: f44 Ed. 3. 5. 7 Ed. 3. 11. 14 H. 7. 4. Dyer 247.So that if a Leaſe for years be made rendring Rent, and the Rent be behind and the Leſſee die, his Executor ſhall be charged for this Rent; or if the Leſſee for years Aſſign over his Intereſt and die, his Executor ſhall be charged with the Arrerages before the Aſſignment, but not with any of the Arrerages due after the Aſſignment. gBro…. Exec. 127. & Cok. 3. 21. 22.Alſo an Executor is chargeable for Tythes due from the deceaſed.hTrin. 7 Jac. E. …. F. N. B. 5….
4. If an Executor Sued, do plead that he never was Executor, nor Adminiſtred as Executor (for that muſt be added) then if Iſſue be taken upon this Plea, and it be found againſt him, the Plaintiff ſhall have Judgement to Recover not Dammages only, but the Debt it ſelf out of the proper Goods of the Executor, if none of the Teſtators can be found. Likewiſe, as it is frequent in uſe for Executors to pay the Teſtators Debt with their own monies, and to make themſelves ſatisfaction out of the Teſtators Goods: So it is moſt equal, that Executors ſhould with their own money diſcharge the Arrerages of Rent of thoſe Leaſes, the Profits whereof themſelves enjoy by vertue of the Teſtators Will: Therefore where an Executor is ſued for Rent behind, after the Teſtators death, upon a Leaſe for years made to the Teſtator, and by him left to the Executor, here it ſhall be adjudged and levied upon the Executors own Goods; for that ſo much of the profits as the Rent amounted unto, ſhall be accounted as his own Goods, and not his Teſtators. Again, if Executors plead Plene Adminiſtra. and it be found for them, and after that certain Goods of the Teſtator come to their hands; in this Caſe, if he which brought the firſt Action of Debt, bring the ſame againſt them again, the Action is well maintainable. i7 Ed. 4. 8. per Littl.It is alſo to be remembred, That the value upon an Appreyzment in an Inventory is not binding, nor much to be regarded at the Common Law either for or againſt Executors, for if it be too high it ſhall not prejudice the Executor, if it be too low it ſhall not advantage him; but the very true value as ſhall be found by the Jury when it comes in queſtion, whether the Executor hath fully Adminiſtred, or hath Aſſets in his hands, or not, is that which is binding in the Law.
5. Executors are lyable to ſatisfie the Obligations made by their Teſtators, though they be not therein bound by Name. Alſo an Action of the Caſe lyeth againſt an Executor upon an Aſſumpſit, or the ſimple contract of the Teſtator, eſpecially where the ground of the Aſſumpſit is a true and real debt. Alſo the Rationabilis pars bonorum by Cuſtome in ſome places is maintainable for the Widow and Children againſt the Executors. kCok. lib. Intr. 564. Such an Action in York-ſhire.Alſo a Detinue lyeth againſt him for the Goods delivered to the deceaſed, if the Executor doth ſtill continue the poſſeſſion of them. Likewiſe an Action lyeth againſt the Executor for arrerages of account found upon the deceaſed before Auditors. lBrownl. Rep. 18, 19, 22. 53. 2. part. …9. 81. 139. Coke 9. 86. & Plow. 182. F. N. B. 121. 3 H. 6. 35. 11 H. 4. 45.Alſo the Executor of a man that recovereth a Debt upon a Judgement had by the deceaſed, ſhall be chargeable with reſtitution, if the Judgement be reverſed for Errour. mCuria B. R. 21.Alſo where a Priſoner dyeth in debt to a Goaler for his diet during the time of his impriſonment, his Executor is lyable. n27 H. 6. 4. b. 1 H. 7. 17. 2 H. 7. 8, 9.Likewiſe where one hath a Tally of the Exchequer, to receive money of ſome Cuſtomer, Receiver, or other Officer of the Kings, and delivereth it to him, he then having money of the Kings in his hands; if he dye without paying the ſame, his Executor ſhall ſtand chargeable with the payment thereof. o27 H. 6. 4. 15 E. 4. 16. Coke lib. 9. fol. 87. b.Alſo the Executors of an Adminiſtrator are chargeable, where he did neither pay the Debts, nor leave the Goods of the Inteſtate to the next Adminiſtrator, but otherwiſe diſpoſed of them: Yet an Executor is not chargeable in an Action of Detinue, nor of Account (except to the King) for the Teſtators detaining, and not paying, or anſwering things received, or under his charge.p2 H. 4. 13. Coke lib. 11. fol. 88. 5 H. 6. 35. 11 H. 4. 64. 91, 92. 9 H. 6. 12. Vid. cap. 22. ….
6. But an Executor, as hath been formerly implyed, is not chargeable for any perſonal wrong done by the deceaſed, for it dies with his perſon; neither will an Action of Debt lye againſt him upon the ſimple Contract of the deceaſed, but an Action of the Caſe only. Neither will an Action lye againſt an Executor upon an Arbitrement made in the life-time of the deceaſed, albeit it be made in writing: Neither will an Action lye againſt an Executor for Coſts given in Chancery againſt the deceaſed in a Sute there, for it is loſt when the party dies. And where there be many Executors and all have accepted, they muſt all be joyned in the Sute; but if ſome of them have refuſed, poſſibly the Sute may be good enough againſt the reſt. qAd…udged, H…ll. 40 Eliz. B. R. Bowyers Caſe, Hill. 7 ſac. B. R. per 3. Juſtices. Coke 9. 39, 40. Broo. tit. Execut. 78. 136. Fitzh. Brief. 341.Otherwiſe, one Executor cannot be charged without his Co-Executors, except it be in the Caſe of Severance, and in ſome ſpecial Caſe where one alone doth the wrong; as where one Executor doth detain the Deeds from the Heir.rBrownl. 1. part. 18, 19, 22. 53. 2. part. 39. 81. 139.
7. Debt brought againſt the Executor of H. W. The Defendant pleaded, That he never was Executor, nor Adminiſtred as Executor. The Jury found, That the ſaid H. W. died poſſeſſed of Mich. 5, 6 P. M. C. B. Stokes verſ. Porter. Anderſ. Rep. par. 1. Caſ. 23.divers Goods, and that one W. A. was indebted Seven Pound to him, which the… Defendant had received, and for which he had given his Acquittance, and that immediately after the death of the ſaid H. W. the Defendant took into his poſſeſſion all his Goods, converted them to his own uſe, enjoy'd them, and diſpoſed of them to his own profit at his own will and pleaſure. And whether upon this matter of Fact, the Defendant were Executor or not, was ſubmitted to the Court, who were of Opinion, That this matter of Fact was the Adminiſtration as of an Executor, and that the Defendant ſhould be charged accordingly.
Scire Facias, upon a Judgement againſt a Teſtator in Debt brought againſt his Executors, who pleaded, That before they had knowledge of this Judgement, they had fully Adminiſtred all the Mich. 43 Eliz. C. B. Littleton and Hibbins Caſe, Cro. 3. pa…. 793.Teſtators Goods in payment of Debts upon Obligations. It was adjudged no Plea, for at their peril they ought to take knowledge of Debts upon Record, and ought firſt of all (unleſs Debts due to the Queen) to have ſatisfied them. It was adjudged accordingly.
Debt was brought by S. B. againſt D. B. and others Defendants Executors, &c. The Defendants pleaded Recovery againſt Hill. 29. Eliz. C. B. Braſebridge verſ. Baskevi…e, Anderſ. Rep. Caſ. 197.them by another in an Action of Debt, and ſhewed the Contents of the Record; to which it was Replyed, That the Recovery was by Covin, to defraud the Plaintiff of his Debt, and hereupon Iſſue was joyned; it was found by Verdict for the Plaintiff, and agreed by all the Juſtices, That the Judgement ſhould be againſt the Executor as againſt the Teſtators Goods, and not as againſt his own proper Goods; being hereunto upon good Advice inclined for ſeveral Reaſons. (1.) For that the Plea was a void Plea; for the Record which the Defendant pleaded, was ſuch as the Plaintiff doth confeſs and avoid, and not like that which is every way falſe; as when one pleads that he never was Executor, nor Adminiſtred as Executor, &c. which Plea being every way falſe, and ſo within his own knowledge alſo, doth for that Reaſon cauſe that Judgement in that Caſe ſhall be of his own proper Goods. (2.) Another Reaſon is, That becauſe ſuch Judgement is moſt agreeable to Reaſon, viz. To give the Plaintiff Recovery of his Debt out of the Teſtators and not the Executors Goods, which is conceived a more reaſonable way than to charge the Executors; for that they bear the burthen of the Adminiſtration of the deceaſeds Will, they deſerve to have as much favour as Reaſon will admit, and not be charged of their own proper Goods. It was further ſaid, That if an Executor ſhould be lyable to ſuch Judgement of his own Goods, it would be a cauſe of often refuſing the Adminiſtration of Teſtaments, for it is a thing of ill conſequence to bind Executors in their own proper Goods in any other Caſes than have been in fore-time adjudged; which Caſes were cited out of divers Books, but here omitted for brevities ſake; none of which Caſes have any reſemblance with this in queſtion.
Debt was brought againſt an Executor; the Plaintiff Declared Mich. 30, 31 Fliz. C. B. Anderſ. Rep. Caſ. 218.upon a ſimple Contract, To which the Defendant pleaded Fully Adminiſtred; It was found againſt him; and moved in Arreſt of Judgement; for that the Action was againſt an Executor who is not chargeable in that manner; and it was ſaid, That when it doth appear to the Court, that the Executor is not chargeable, the Court ought not then to Judge for the Plaintiff, and to this purpoſe ſome Books were cited, and it was ſaid, That the Reaſon why an Executor ſhall not be charged upon a ſimple Contract, is, for that he is a Stranger, and cannot have notice of the Contract; and therefore the Law will not have him to be charged for that alone without ſomewhat elſe: But in this Caſe it appears that he had notice of the Contract, inaſmuch as thereupon he pleaded fully Adminiſtred, and that Plea being admitted, it implyes as if he had known of the Contract; and therefore when he pleaded that he had fully Adminiſtred, which was found againſt him, Judgement ought to have been given for the Plaintiff; for proof whereof a Judgment was cited, which appears to have been given, An. 10 H. 6. fol. 15. and 13 H. 6. As the Book ſayes in the like Caſe againſt an Executor upon a ſimple Contract. All which notwithſtanding, it was reſolved by the Court, That the Plaintiff ſhould take nothing by his Writ, giving their Reaſons for ſuch their Judgement, which for brevities ſake are alſo here omitted.
Debt againſt an Adminiſtrator upon an Arbitrement made Mi…. 39, 40 Eliz. B. R. Bowyer verſ. Garland. Cro. Rep. par. 3.betwixt the Plaintiff and the Inteſtate in Writing; and the Defendant demurr'd thereupon; and without argument it was adjudged for the Defendant, becauſe the Inteſtate might have waged his Law. But otherwiſe it were, if it had been in debt upon Arrerages of Accounts before Auditors.
Aſſumpſit againſt an Executor upon the Promiſe of the Teſtator; and in the Declaration it was not averred, That he had Paſch. 29, 30 El. B. R. Cottington verſ. Hulet. Cro. Rep. par. 3.Aſſets to pay debts, &c. But Mich. 29, 30 Eliz. It was adjudged, that the Declaration was good; and the Plaintiff recovered.
Debt againſt an Executor upon an Obligation made by his Teſtator; the Plaintiff was Non-ſuited, the Defendant had Coſts by Trin. 38 Eliz. Fetherſtone verſ. Allybon. Cro. Rep. par. 3.order of the Court. Otherwiſe it is where an Executor is Plaintiff, and is Non-ſuited. For it cannot be intended, that it was conceived upon malice by him. Vid. Stat. 23 H. 8. cap. 15.
Debt againſt an Executor upon an Arbitrement, made in the time of the Teſtator. It was demurred in Law, whether it lay Paſch. 39 Eliz. Hampton verſ. Boyer. Cro. Rep. par. 3.or not? Becauſe the Teſtator might have waged his Law. And adjudged without Argument that it lay not.
Debt againſt P. as Executor. The Plaintiff had Judgement to recover de Bonis Teſtatoris. And thereupon a Scire Facias was awarded, Paſc. 38 Eliz. Aldworth verſ. Peel. Cro. par. 3.and the Sheriff returned Quod nulla habuit bona Teſtatoris. And the Plaintiff ſurmiſeth, that he had waſted the Teſtators Goods; whereupon he prayeth a Scire Facias why he ſhould not have Execution de bonis propriis: And ruled by the Court, That this Writ ſhall not be awarded, upon the ſurmiſe of the party, upon a devaſtation; nor in any Caſe where the Judgement is de bonis propriis, unleſs it be upon return of the Sheriff, where he returns a Devaſtavit. Vid. 9 H. 6. 9. & 57. Fitzh. Execution 9.
Scire Facias againſt an Adminiſtratrix to have Execution of a Judgement againſt the Inteſtate; the Defendant pleaded, Quod Paſch. 39 Eliz. C. B. Ordwey verſ. Godfrey. Cro. Rep. par. 3. Pl. 20.nulla habet bona, quae fuerunt Inteſtati, tempore mortis ſuae, in manibus ſuis Adminiſtranda, nec habuit die impetrationis brevis, nec unquam poſtea. And it was thereupon demurred, and held by all the Court, that it was not any Plea; for a Judgement cannot be anſwered without another Judgement; and it may be, ſhe had Adminiſtred all the Goods in paying debts upon Specialties, which is not any Adminiſtration to bar the Plaintiff. Or (as ſome ſaid) it may be ſhe had paid Debts upon a Statute or Recognizance, which is not allowable againſt a Judgement. But Anderſon denied it; for there is not any Priority of Debts upon Record, unleſs in Caſe of the Queens Debt, which is firſt to be paid. And here the Defendant ought to have pleaded ſpecially, how ſhe had Adminiſtred. Wherefore it was adjudged for the Plaintiff.
The Defendant pleaded Out-lawry in the Teſtator, 29 Eliz. not reverſed, and it was thereupon demurred. Herne for the Plaintiff Trim. 39 Eliz. C. B. inter Wolley & Bradwel, and his Wife Executrix of Sir Tho. Manners. Cro. Rep. par. 3. Pl. 21.moved, That it was not any Plea, becauſe (admitting it to be a Plea) it ſhould be, in regard of the Teſtators being Out-lawed, he could not have any Goods but what appertained to the Queen, and then the Executors might not have any Goods to ſatisfie: But that is not ſo; for the Teſtator might have a debt due to him upon a Contract, which is not forfeited; or, it might be, the Teſtator Deviſed Lands to be ſold, and which are ſold, the money is Aſſets in their hands; and in 3 H. 6. 17, & 32. it was holden to be no Plea. And of that Opinion were Walmeſley and Owen. For a perſon Out-lawed may well make a Will, and have Executors, over and beſides the Goods forfeited to the Queen, as in the Caſes before put, and others of the ſame nature: But Beamond è contra, for the Bar is good to a common intent; and theſe kind of Aſſets ſhall not be intended, unleſs they be ſhewn. Wherefore primâ facie the Plea is good. Anderſon abſente Adjournatur. Afterwards for defect of pleading, without regard to the matter in Law, it was adjudged for the Plaintiff. 8 Ed. 4. 6. 21 Ed. 4. 5. 39 H. 6. 27.
Errour of a Judgement in C. B. againſt Three Executors: The Errour Aſſigned was, That one of them died pending the Writ 41 Eliz. C. B. Anonymus. Cro. Rep. par. 3. Pl. 10.before Judgement. And Warberton moved, that this was Errour; but when one of the Executors Plaintiffs die, this is no Errour, for they might be ſerved: But the Court held it no Errour. 3 H. 7. 1, 3. 8 Ed. 3. 11.
Scire Facias againſt Executors, upon a Judgement againſt their Teſtator in debt: They pleaded, that before they had any knowledge Mich. 42 & 43 Eliz. C. B. Littleton verſ. Hibbins. Cro. Rep. par. 3. Pl. 37.of this Judgement they had fully Adminiſtred all the Teſtators Goods in paying of debts upon Obligations; and it was thereupon demurred, and after Argument at the Bar, adjudged for the Plaintiff, that it was not any Plea. For they at their peril ought to take cognizance of debts upon Record, and ought firſt of all (unleſs for debts due to the Queen, wherein ſhe hath a Prerogative) to ſatisfie them; and although the Recovery was in another County than where the Teſtator and the Executors inhabited, it is not material: But if an Action be brought againſt them in another County than where they inhabit, and before their knowing thereof they pay debts upon Specialties, that is allowable: wherefore it was adjudged accordingly. Vid. 4 H. 6. 8. 21 Ed. 4. 21.
Debt againſt an Executor, who pleaded he had reines in ſes Mich. 25 Eliz. C. B. Anonymus. Cro. Rep. par. 3. Pl. 8.mains, but certain Goods diſtrained and impownded, it was adjudged to be no Aſſets to charge him.
The Caſe was, A. Covenanteth with B. to put his Son an Apprentice to C. or otherwiſe that his Executors ſhall pay B. Twenty Paſch. 33 Eliz. C. B. Parrot verſ. Auſtin. Cro. Rep. par. 3. Pl. 2.pound. A. doth not put his Son an Apprentice to C. and dyeth; B. brings debt againſt the Executors of A. and it was Reſolved by the Court, That it lyeth not for Two Reaſons: (1.) It cannot be a debt in the Executor where it was no debt in the Teſtator: And if one Covenants to pay Ten pound, debt lyeth againſt him or his Executors, as 40 Ed. 3. & 28 H. 8. Dyer are; but if he doth Covenant that his Executors ſhall pay Ten pound, an Action lyeth not againſt them. (2.) The firſt part of the Deed ſounds in Covenant, and the ſecond part ſhall be of the ſame nature and condition. Q. of this Reaſon.
Note, Aſſumpſit by the Teſtator lies againſt his Executor, in Vid. Caſ. Legate verſ. Pincheon. Mich. 9 Jac. B. R. & Caſ. Clark verſ. Thompſon. Hill. 17 Jac. B. R. & Caſ. Fawcet verſ. Charter. Hill. 20 Jac. B. R. Qui omnes Caſus in Cro. Rep. par. 2.Caſe the Debt riſeth upon a Loan and Promiſe of the Teſtator to pay, and the Promiſe be for the payment of a meer debt, and not to do any collateral Act, and where the Teſtator himſelf, by reaſon of ſuch Promiſe, could not have waged his Law; in ſuch Caſe his Executor is chargeable; but upon a meer collateral Promiſe of the Teſtator, an Aſſumpſit lies not againſt his Executor. Such was the Opinion in Q. Eliz. time: but now in Reg. Jac. the Opinion of both Courts was, and reſolved, That the Action againſt the Executor lies as well in the one Caſe as in the other.
Scire Facias Sued by H. againſt W. Executor to his Father for Execution of a Judgment obtained againſt the Teſtator. The Defendant Hill. 11 Jac. C. B. Harecourt verſ. Wrenham. Moo. Rep. nu. 1178.pleaded Plenè Adminiſtravit at the time of bringing the Action; and thereupon they were at Iſſue, and the Jury found, That the Teſtator conveyed a Leaſe in truſt to one Fiſher, againſt whom the Executor had recovered One Thouſand pound in Chancery, which was come to the Executors hands, Et ſi ſuper tota materia, &c. Two Points in this Caſe were argued at the Bar and Bench: (1.) Whether the Plea of Plenè Adminiſtravit at the time of bringing the Writ were good, in that Judgement was given againſt the Teſtator in his life-time; and it was Ruled, that it was not good, but that in ſuch Caſe the Executor ſhould have pleaded, There was nothing in his hands at the time of the Teſtators death, becauſe the Judgement bound him to ſatisfie that debt before others: but by the joyning of Iſſue the advantage of that exception to the Plea was waved. (2.) Whether the Summ Decreed in Equity in the Chancery ſhall be Aſſets; and they all agreed it ſhould be Aſſets, becauſe the Jury found, that by vertue of the Executorſhip it was come to the Executors hands. 9 Eliz. Dyer 264. And money ariſing of the ſale of Lands by Executors ſhall be accounted Aſſets. Chapman and Daltons Caſe. Plowd. Alſo Dammages recovered by Executors pro bonis aſportatis in vita Teſtatoris ſhall be Aſſets. Vid. Paſch. 39 Ed. 3. and C. B. Ordinary and Godfreys Caſe.
W. And others brought D. againſt the Defendant as Executor, he pleaded Plenè Adminiſtravit: And it was found by Verdict, Hill. 37 Eliz. Watſons Caſe. Moo. Rep. nu. 518.That the Defendants Wife was made Executrix, who to defraud the Creditors, had made a Deed of Gift of the Goods before her marriage with the Defendant, and yet retain'd them in her poſſeſſion, and took the Defendant to Husband, and died; and the Defendant had now as much goods in his hands as would ſuffice to pay the Creditors their debts. And the Court adjudged for the Plaintiff, for that the Defendant confeſs'd himſelf Executor by pleading Fully Adminiſtred, and therefore is chargeable, becauſe the property of the Goods paſſed not out of the Wife by that Grant, being fraudulently made as aforeſaid, by the Stat. 13 Regin.
One ſued an Executor in the Eccleſiaſtical Court for a Legacy, Paſch. 14 Jac. Lloid verſ. Maddox. Moo. Rep. nu. 1307.who pleaded Recovery in debt againſt him at Common Law, and beyond that he had not Aſſets wherewith to ſatisfie. To which the Plaintiff in the Eccleſiaſtical Court Replyed, That the Recovery was by Covin, and that the Plaintiff in the Recovery offered to diſcharge the Judgement, and the Defendant would not. And hereupon the Queſtion was, whether a Prohibition ſhould be awarded or not. And it was Reſolved, That it ſhould not be awarded, for that the Covin or Fraud is properly examinable in the Eccleſiaſtical Court, becauſe the Legatee cannot ſue for his Legacy at the Common Law.
Action upon the Caſe of Trover of Goods; The Caſe was this, Hill. 31 Eliz. Moſſe verſ. Pack. Moo. Rep. n. 473.a Recovery in the Exchequer was had againſt the Executor of P. of Debt and Dammages, and Fieri Facias iſſued de bonis Teſtatoris, ſi &c. And if none, then Damna de propriis: the Executor dies, the Sheriff levies Execution of the Teſtators Goods before the Return of the Writ, and adjudged good notwithſtanding his death after the Teſt of the Writ.
B. brings Debt againſt H. on a Demiſe for years to one unto Caſe Boddy verſ. Hargrave. Moo. Rep. nu. 771.whom H. was Adminiſtrator: And the Writ was in the Debet and Detinet. Whereupon in Arreſt of Judgement it was ſhew'd in B. R. That it ought to have been in the Detinet only, becauſe againſt an Adminiſtrator: But it was adjudged, That it was good in the Debet and Detinet, becauſe the Rent due incurr'd in the Adminiſtrators time, and the Land is not Aſſets, but only ſo much of the Profits as the Land is worth above the Rents; and the Adminiſtrator ſhall not anſwer for more than the Land is worth, deducting the Rent: But in all Caſes where an Executor or Adminiſtrator brings an Action for a Duty Teſtamentary, there it ought to be in the Detinet only, becauſe the Duty being demanded, ought to be Aſſets.
An Executor is not chargeable for a Debt due by the Teſtator 10 H. 6. 25. Co. 9. Pinchon 88. Roll. Abridg. Adjudged inter Germaine and Rowles.upon a ſimple Contract. Regularly an Executor ſhall not be charged without Specialty in any Action wherein the Teſtator might wage his Law, for that an Executor cannot wage his Law of other mens Contracts. 46 Ed. 3. 10. b. 11 H. 6. b.
Information in the Exchequer in nature of an Account was Hill. 39 Eliz. B. R. Dodington's Caſe. Cro. Rep. par. 3.brought againſt D. Executor of W. M. ſuppoſing that W. M. had received money of the Queens amounting to One thouſand five hundred pound, upon a ſpecial Verdict; the Caſe was, That W. M. had received annually out of the Exchequer Fifty pound as a Fee for his Diet for Thirty years together, which was paid him by the Command of the Lord Treaſurer; who had Authority by Privy Seal to make allowance and payment of all Fees due, but in truth, theſe were not any due Fees: And whether his Executor ſhall be charged with theſe Summs ſo received, was the Queſtion. And after Argument it was adjudged, that he ſhould be charged; for it was held, That this payment of the money by the appointment of the Lord Treaſurer, was not allowable; for the Privy Seal is not ſufficient Authority to diſpoſe of the Queens Treaſure, unleſs where it is due; and he diſpoſing of it otherwiſe, it is out of his Authority. (2.) It was held, That this money delivered by Authority of the Lord Treaſurer, who is quaſi a Judicial Officer, and it was quaſi a Judicial Act by him; yet it ſhall not bind the Queen; for it was without his Authority, and without warrant, to make allowance thereof, not being due; and it is at his peril who receives it, or demands allowance thereof. For theſe and other Reaſons (mentioned in the Report) it was adjudged for the Queen againſt the Defendant, and although he were Executor, he ſhould anſwer for it as a debt from the Teſtator. 11 Co. 90. b.
Errour upon a Judgement given in an Aſſumpſit againſt an Executor upon a Promiſe of the Teſtators, where the Plaintiff declared, Mich. 37, & 38 Eliz. in Cam. Scac. Stubbins verſ. Rotheram. Cro. Rep. par. 3.That the Teſtator in conſideration of Marriage promiſed to pay the Plaintiff One hundred pound, and for non-performance of this promiſe brought the Action, and Judgement there given for the Plaintiff: and this matter was aſſigned for Errour, that the Action lay not againſt an Executor; and all the Juſtices and Barons (beſides Clark Baron) held it to be Erroneous for this cauſe: For Anderſon ſaid, The Reaſon why Debt lies not againſt an Executor upon a Contract of the Teſtators, is, becauſe the Law doth not intend that he is privy thereto, or can have notice thereof, and he cannot gage his Law for ſuch a debt as the Teſtator might; and when debt will not lie, it is not fit that this Action upon a bare Promiſe ſhould bind him; for it ſtands upon one Reaſon; And if theſe Actions ſhould be allowable, it would be very miſchievous, wherefore the Judgement was reverſed. Q. Whether a Recovery in this Action againſt an Executor, is allowable againſt a debt upon an Obligation, if it ſhould be an Adminiſtration; for then it would be miſchievous to Creditors; and if it ſhould not be an Adminiſtration, it would then be miſchievous to Executors, that they ſhould be charged therein, and not have allowance thereof againſt other Creditors; for it may be, that at the time of the Recovery they did not know of other debts. Note, that this Term was given the like Judgement betwixt Griggs and Helhouſe in an Action brought againſt an Adminiſtrator upon a Promiſe of the Inteſtates to pay money, &c.
Debt againſt the Defendant as Adminiſtratrix of J. S. upon plene Adminiſtravit pleaded, it was found by Verdict, That the Teſtator Mich. 30, & 31 Eliz. B. R. Martyn verſ. Alice Whipper. Cro. Rep. par. 3.at the time of his death had Goods to the value of One hundred pound, and was bound to another by Obligation in One hundred pound, and that the Defendant had taken in this Obligation, and made another in her own Name with Sureties to the Obligor. And upon the motion of Heale, the Court held, That this was an Adminiſtration, and it is in the nature of a payment, and ſo much of the Teſtators debt is thereby diſcharged; and ſo it was ſaid to be adjudged in Woods Caſe. Nota, fuit Ruled accordingly. Paſch. 30. in C. B. which was entered, Mich. 28, 29 Eliz. inter Stamp & Hutchins.
Action upon the Caſe on Indebitatus Aſſumpſit doth well lye, for every debt implyes a Promiſe; and it is one good conſideration Mich. …, 45 E…. B. R. Slad. & Merleys Caſe. Yelv. Rep.in Facto whereon to found an Action: But for a debt by ſimple Contract due by the Teſtator no Aſſumpſit lies againſt Executors, and it was openly delivered by Popham Chief Juſtice, No. 44 Eliz. to be the Reſolution of all the Judges, and to be a Preſident in all Caſes, that might after happen.
It was agreed by Yelverton, Williams and Crook, Juſtices, That if a man by Indenture leaſe Land to J. D. for years rendring Mich. 5 Jae. B. R. Howſe & Webſters Caſe. Yelv. Rep.Rent, and J. D. dye making A. his Executor, the Leſſor may have Action of Debt againſt the Executor for the Rent reſerved, and the Arrears thereof after the death of the Leſſee, albeit the Executor never enter nor agree to the Leaſe; for the Executor repreſents the Teſtators perſon, and the Teſtator by the Indenture was ſtop'd, and concluded to pay the Rent during the Term upon his own Contract; and albeit the Rent exceeded the value of the profit of the Land, yet the Executor cannot waive the Land, but notwithſtanding that ſhall be charg'd with the Rent. Vid. Opin. Aſcue, 21 H. 6. 24. & 11 H. 4 Contr.
Action Sur Trover and Converſion of Goods, upon demurrer the Caſe was; The Ordinary committed Adminiſtration of the Goods of an Inteſtate to the Defendant; afterwards the next of Kin ſues out a Citation in the Eccleſiaſtical Court againſt the Defendant Hill. 37 Eliz. B. R. Wilſon verſ. Packman, Gro. par. 3.to Repeal that Adminiſtration, and he (pendente Lite) ſells thoſe Goods, and afterwards his Adminiſtration is Repealed, and Adminiſtration committed to the Plaintiff, who for this Converſion (pendente Lite) brings this Action; and it was moved for the Defendant, that this Action lyes not, for the Adminiſtration at the Common Law is well committed, and the Statute doth not alter the Law in this point, but gives a penalty againſt the Ordinary, if he commits them not to the next of Kin, and the Adminiſtrator till Adminiſtration Repealed hath an abſolute Authority to diſpoſe of the Goods as he pleaſeth. Tanfield, è contra, The Converſion pendente Lite in the Eccleſiaſtical Court is not lawful, but is a Tort to the Plaintiff, and that the Sentence there proves, which is, that all things attempted or done pendente Lite ſhall be void, and the Juſtices ought to have regard to the Civil Law in this point, as in 27 H. 6. Guard, 118. 2 R. 2. Quare impedit, 143. and 4 H. 7. 13. And by the Sentence it appears, that the Adminiſtration is revoked as if it never had been; and upon this reaſon it is in Dyer 339. where an Adminiſtrator recovered a debt, and afterwards another procured himſelf to be joyned in the Adminiſtration, and releaſed the debt, and afterwards it being revoked, this releaſe was not any bar to the execution. And Mich. 25, 26 Eliz. in the Common Bench between White and Cary this very point was in queſtion, and adjudged, that the Action lay. Gawdy, The Action well lies, for the Sentence doth not repeal mean Acts done by an Adminiſtrator which are for the Inteſtates benefit; but foraſmuch as theſe Goods were not converted or imployed for the Inteſtates uſe, it is reaſonable that he ſhould be charged for them. Popham and Fenner è contra. For the Adminiſtrator hath an abſolute intereſt and power to diſpoſe of the Goods, untill the Repeal be made; and it is not like unto an Appeal upon a Sentence, for that makes it as no Sentence; but the Repeal of the Letters of Adminiſtration doth not void it ab initio, and make a lawful Act Tortious, but rather in this Caſe the new Adminiſtrator ſhall have an account for the money received; and the words in the Sentence are not to be regarded, for they are common and ordinary in all Sentences. So he having the Goods lawfully, and converting them lawfully, ſhall not anſwer for them as for a Tort done. And Popham here ſaid, If Adminiſtration being committed, the Ordinary commit new Adminiſtration, it is a Repeal of the former without any Sentence of Appeal; and if the firſt Adminiſtrator waſt the Goods, the Debtee ſhall have the Action againſt him; and if he pleads that Adminiſtration is committed over, he may well by this Replication maintain it, becauſe he waſted the Goods when he was Adminiſtrator, wherefore &c. Et Adjournatur; but afterwards the Action was diſcontinued by the Plaintiff.
Debt againſt one as Adminiſtrator to N. upon an Obligation; T…in. …7 Eliz. C. B. Snelling verſ. Norton. Cro. par. 3.the Defendant ſhews the Cuſtome of London to be, That if a Contract be made by a Citizen, to pay money to another Citizen, and he who made the Contract dies, that his Executors or Adminiſtrators ſhall be chargeable therewith, as if it were upon an Obligation; and ſhews further how the Inteſtate was indebted upon a Contract to A. who had Recovered againſt him, and that he had Riens ouſter en ſes maines, &c. And it was thereupon demurred. Glanvile moved that this Cuſtome was not good; For (1.) it is againſt Law, That an Executor or Adminiſtrator ſhould be charged upon a ſimple Contract, wherefore &c. Daniel è contra, The Cuſtome was alwayes to bind the Executors or Adminiſtrators to pay Debts upon Contracts, and Cuſtomes in London are confirm'd by Parliament, and are now as ſtrong as a Statute; and therefore in London they preſcribe to give Land in Mortmaine, which is againſt Statute Law; and there is not any Cuſtome, but that it deprives, and is againſt the Common Law in ſome point. And this Cuſtome is reaſonable, for a Debt upon a Contract is as well due as a debt upon an Obligation, and therefore there is as great reaſon for the payment of the one, as of the other; although the Law hath given a greater Prerogative, viz. a Priority of paying the one, rather than to the other, &c. Owen Juſtice, The Cuſtome is reaſonable; for the Executor in Conſcience is bound to pay Debt upon a Contract as well as upon a Specialty; and ſuch a matter was about four years ſince in this Court, but not adjudged. And of that Opinion were the other Juſtices, eſpecially as this Caſe is, being executed againſt him who is liable and chargeable by the Cuſtomes of London.
Adjudged per totam Curiam, That where an Executor is Plaintiff Mich. 7 Jac. B. R. Telv. Rep. Executor ne paiera Coſts ſur le Stat. 4 Jac.for any thing touching the Teſtament, and is Non-ſuite, or Verdict paſs againſt him, he ſhall not pay Coſts, by the Statute of 4 Jac. For the Statute ought to have a reaſonable intendment, and no default can be preſumed in the Executor who complains, becauſe it concerns other mens Fact, whereof he can have no perfect knowledge; and ſo it was reſolved and adjudged by all the Juſtices of the Common Pleas. Quod Nota. A Judgement eſtabliſh'd by both Courts, contrary to ſome few Preſidents, which were in B. R. to the contrary. Quod Nota.