The Orphans Legacy, Part 2 · Chapter 24
CHAP. XXIV. Of Aſſets charging Executors, or not.
1. What Aſſets are, and the ſeveral qualifications thereof.
2. Whether Dammages recovered by an Executor be Aſſets.
3. Mortgages redeemed by the Executor, and Chattels reverting to him upon failure of ſome Condition by the Legatary to be performed, are Aſſets in his hands.
4. Encreaſe gotten to Executors by Merchandizing with the Teſtators Goods, and other things never in the Teſtators poſſeſſion, are Aſſets in the Executors.
5. Debts due to the Teſtator are no Aſſets in the Executor, till recovered or releaſed by him.
6. Whether Land deviſed to be ſold for payment of Debts and Legacies be Aſſets.
7. An Executor dying indebted, and leaving to his Executor ſuch Goods as he had as Executor, Theſe are not Aſſets in ſuch Executors Executor lyable to the laſt Teſtators Debts.
8. Whether an Advowſon be Aſſets.
9. How real Chattels may turn into Perſonal Aſſets.
10. In what Caſe a Debtee-Executor may retain Money or Goods of the Teſtators, which ſhall not be held Aſſets as to other Creditors.
11. Other mens Goods in the Teſtators poſſeſſion at his death, ſhall not be Aſſets in the Executors hands.
12. Executors diſcharged of Aſſets as to ſo much as they pay of the Teſtators Debts with their own Money or Goods.
13. Certain Law-Caſes touching Aſſets.
1. ASſets are where one indebted dieth Teſtate or Inteſtate, and his Executor or Adminiſtrator hath ſufficient in Goods or Chattels, or other Profits to pay the deceaſeds debts, or part thereof, and for ſo much he ſhall be charged: aTerms of law. & Coke ſup. Littl. 374.So that all ſuch Goods, Chattels, and Actions which did belong to the deceaſed in right of Action or Poſſeſſion as his own, and ſo continued to the time of his deceaſe, and which after his death the Executor or Adminiſtrator doth get into his hands, as of right of his Executorſhip or Adminiſtration, and all ſuch things as accrew to the Executor or Adminiſtrator by reaſon thereof, and nothing elſe, ſhall be Aſſets in their hands to oblige them in Law as chargeable to the deceaſeds Creditors or Legataries. So that all things valuable may be Aſſets, but ſuch things as are not valuable are not Aſſets. bCoke ſup. Littl. 388.Note that Aſſets in the hand of any one of the Co-Executors ſhall be underſtood as Aſſets in the hands of all the Executors, cKelw. 51.be it in any County or place whatſoever. dCoke 6. 47.All the Teſtators Goods and Chattels in Action or in poſſibility at his death, and afterwards recovered by his Executors, are Aſſets in their hands, but not till recovered and come into their poſſeſſion; therefore Debts of any kind whatſoever due to the deceaſed, are not Aſſets in his Executors or Adminiſtrators hands to charge them until they be Recovered: eCok. ſup. Litt. 124. 5. 31. Broo. Aſſets 24. Dyer 264. 121. 2 H. 4. 21. Cok. 6. 58. Kelw. 63. Dyer 362.But whatever an Executor or Adminiſtrator muſt Sue for, by or under that Name or Appellation, is (being Recovered) Aſſets in his hands. fCuria. Mich. 13. B. R. Coke 1. 98. Plowd. 84. 292. Coke 5. 34.Yea, notwithſtanding an Executor or Adminiſtrator doth purchaſe the Fee-Simple of that Land, whereof he had a Leaſe for years in right of the deceaſed (whereby the Leaſe is drowned) yet the ſaid Leaſe ſhall ſtill continue to be Aſſets in his hands. gCoke▪ 87. Brook. Leaſes. 63.Or if Executors do ſell the Goods of Teſtators and buy them again, they remain as Aſſets in their hands, becauſe they are the ſame Goods which were the Teſtators. h18 H. 6. 4.If a man hath a Leaſe for years, worth Fifty pound per annum or more, out of which he payes Ten pound yearly Rent, and dies; in this Caſe not the full value of the Land yearly, but only ſo much as is above the ſaid Rent ſhall be deemed Aſſets in the hands of the Executor or Adminiſtrator. iBrown…. Rep. 1 part. 33. 76. & 2 part. 47.Or ſuppoſe the deceaſed dies poſſeſſed of Goods and Chattels to the value of Two hundred pound, and in debt to M. Two hundred pound, and to N. One hundred pound, and to O. Fifty pound, and to P. Twenty pound, and Compoſition is made with M. for Sixty pound, or other Summ more or leſs under Two hundred pound; In this Caſe the Executor is deemed to have Aſſets chargeable to the other Creditors for ſo much as is above the Summ ſo compounded unto Two hundred pound. k27 H. 8. 6.Or where a man is indebted Forty pound to one, and Thirty pound to another, and dies, leaving but Forty pound in all, and his Executors agree with the Creditor of Forty pound for Ten pound, and have his Acquittance for the Forty pound, yet the Thirty pound remaining in their hands ſhall be Aſſets.lFitzh. 27 H. 8. 6.
2. If Executors do Recover any Dammages for Treſpaſs, or other wrong done to the Teſtator, the money recovered will be Aſſets in their hands, as well as Debts recovered upon Bonds, or Bills, or Lands by them taken in extent upon Statutes, Recognizances, or Judgements. mSo held in Sales Caſe of Damm…g…s in Qua. Imp. Recovered conte. of the preſentment.Yea, without ever having theſe monies, Executors may make them Aſſets in their hands, viz. by making Releaſes, or Acquittances, or Acknowledgement of Satisfaction; for this amounteth to a Receit, and chargeth the Executors towards the Creditors with the whole penal Summ, though poſſibly they receive but part, as the Principal, or ſome ſuch proportion: But Debts or Dammages recovered by a Judgement had by the deceaſed in his life-time, whereof no Execution was, are not Aſſets in his Executors or Adminiſtrators hands, until Execution be made; yea, though Execution be made, and the Dammages ſo recovered that they be gotten into the Executors hands or poſſeſſion, yet if the Judgement be Erroneous, and the Execution avoidable, it ſhall not be deemed Aſſets in his hands; for which Cauſe a Debt Sued and Recovered by one as Adminiſtrator to A. B. and afterwards a Teſtament made by A. B. produced and proved, is not Aſſets in the Adminiſtrators hands, becauſe the Executor in the ſaid Teſtament may recover it from him.
3. A Mortgage Redeemed is Aſſets, unleſs the Executors redeemed it with their own money. nFrewick 20 H. 7. 2.Likewiſe Goods of the Teſtators redeemed by the Executor with the Teſtators money, are Aſſets in the Executor; it is otherwiſe if the Executor having no monies of the Teſtators doth redeem them with his own money. o21 H. 7.If the Teſtator grant a Leaſe for years, or Horſes, Sheep, Plate, or other Cattle unto A. upon ſome Condition that A. did not perform after the Teſtators death; in this Caſe the Chattel reverts and comes back to the Teſtators Executors, and is Aſſets in their hands. Alſo if A. Covenant with B. to make him a Leaſe of ſuch or ſuch Land by ſuch a day, and B. dieth before the day, and before any Leaſe made; now muſt A. make the Leaſe to the Executor of B. and the Leaſe ſo made to him ſhall be Aſſets in his hands, pCaſe int. Chapman & Dalton. Eliz. Reg. Plowd. Com.becauſe the Executor ſhall have the Term only as Executor: So if A. undertake to deliver in to B. Twenty loads of Coles, Wood, or other Merchandize whatſoever, and this is not performed in the life of B. but afterwards to his Executor; this ſhall be Aſſets in his hands as well as the money recovered in Dammages for non-performing ſhould have been. Likewiſe any Goods or Chattels whatſoever given or bequeathed to any perſon by the Teſtator upon a Condition certain, and the Condition not afterwards performed by ſuch Conditional Legatary, the ſaid Goods and Chattels conditionally bequeathed do revert to the Executor, and become Aſſets in his hands.
4. Encreaſe gotten to the Executors by Merchandizing with the Teſtators Goods, ſhall be Aſſets in their hands, and ſhall charge them. q11 H. 6. 35. per Babington.Likewiſe Dammages recovered by an Executor in an Action of Treſpaſs, ſhall (as aforeſaid) be Aſſets, and yet they were never in the Teſtator. r21 E. 4. 4. b. 11 H. 6. 35. b. 3 H. 6. 2. & 2 H. 4. 21. & 1 H. 4. 6. & Co. in Littl. l. 2. cap. 11. Sect. 192.Alſo if a Leaſe be made to one for life, the Remainder to his Executors for years, and he dieth, this will be Aſſets in the hands of his Executors, though it never were in the Teſtator. sOffic. Exec. c. 6. Reſolved by three Judges, temp. Eliz.So where a Leaſe for years is bequeathed to A. for life, and after to B. who dieth before A. although B. never had this Term in him, ſo as that he could grant or diſpoſe it, yet ſhall it reſt in his Executor as his Goods, and be Aſſets in his Executors hands. tIbid.Likewiſe a Remainder for years, ſo in the Teſtator, that he might grant or diſpoſe it at his pleaſure, though the ſame fell not in poſſeſſion to the Teſtator in his life-time, yet this is Aſſets to the Executor, even whilſt it continues a Remainder, and before it falleth into poſſeſſion, becauſe it is preſently valuable and vendible. In like manner Gain gotten by Trading (as aforeſaid) with the Teſtators money, Wool growing upon Sheep after the Teſtators death, alſo the encreaſe of Sheep or other Cattel after the Teſtators death, though never in the Teſtators actual poſſeſſion, ſhall yet be Aſſets in the Executor. Likewiſe a Feoffment made to the Feoffors uſe for life, and after him to the uſe of his Executors or Aſſigns for a certain number of years, that number of years ſhall be Aſſets in the hands of the Feoffors Executor. Alſo Goods hypothecated or pledged to the deceaſed in his life-time and not redeemed, or the money thereof when redeemed, is Aſſets in the Executors or Adminiſtrators hands. Likewiſe the money raiſed by the Sale of the deceaſeds Lands, ſold by his appointment by the Executors for the payment of his debts (as when the deceaſed did in his life-time appoint that his Executors ſhall ſell his Lands to pay his debts) ſhall as aforeſaid be Aſſets in the Executors hands. uCo. ſup. Litt. 388. 5. 34. Dyer 362. Kelw. 63. Co. ſup. Littl. 54. 20 H. 74. Brook. Aſſets 12.Alſo if Executors had a Villein for years, and the Villein purchaſed Lands in Fee, and the Executors entered, they had a Fee-Simple, but it was Aſſets. wCo. ſup. Litt. lib. 2. cap. 11. Sect. 172. & 192. Dr. & Stud. & Broo. tit. Villenage. 70.The reaſon was, becauſe they had the Villein in auter droit, viz. as Executors to the uſe of the dead. And if Executors having Aſſets, do waſt it, or pay Debts or Legacies in any other order or method than the Law hath preſcribed, they muſt anſwer it out of their own Eſtates.xTerms of Law. & Coke 6. 46. Dyer 271.
5. Debts due to the Teſtator be not Aſſets in the Teſtators hands ſo as to charge him for the payment of Debts and Legacies, until Judgement and Execution had, or they be otherwiſe recovered, received, or releaſed by him. And an Executor paying the juſt value of the Teſtators Goods to the Creditors, may retain the ſame Goods in his hands, which nevertheleſs ſhall not afterwards charge the Executor as Aſſets. But if queſtion be concerning the value, it is received by all, that the value upon the appreyzment is not binding, nor much to be reſpected in a conteſt at Law, for if it be too high it ſhall not prejudice the Executor, if too low, it ſhall not advantage him; but the very true value as it ſhall be found by Jury when it comes in queſtion, Whether the Executor hath fully Adminiſtred, or hath Aſſets or not, is that which is binding in Law.
6. If a man give Lands by his Will in Fee to his Executors to be ſold for performance of his Will, theſe even before the money be raiſed are Aſſets both for payment of Debts and Legacies. y3 H. 6. 3. & 2 H. 4. 2. & 9 Eliz. Dyer 264. & 14 Eliz. Dyer 31.But if the Land be given only for payment of debts, they ſhall then only be ſold for that purpoſe, and not for payment of Legacies: But the profits of the Land before it be ſold are not in that caſe Aſſets; but let the Executor ſee to the ſale thereof in due time limited and preſcribed by Law, leſt the Heir Enter; for Regularly the mean profits of Lands, deviſed to be ſold, ſhall not till the ſale be Aſſets in the Executors hands, unleſs it be otherwiſe deviſed by the Teſtator. zCo. ſup. Littl. lib. 2. c. 3. Sect. 169. & lib. 3. c. 5. Sect. 383.And although Lands deviſed to Executors for years, are Aſſets in their hands; yet if the Teſtator Deviſe, that his Executors ſhall ſell his Lands; this is not Aſſets until the Land be ſold, and the money received for the ſame ſhall be Aſſets. aBrownl. 2. part. 47.Notwithſtanding what hath been here ſaid in this point, and although Lands given for the payment of Debts and Legacies were Aſſets before the Statute of 21 H. 8. cap. 5. which ſayes indeed, that if one Will by his Teſtament any Lands, &c. to be ſold, neither the money thereof coming, nor the profits taken, ſhall be accounted as any of the Goods or Chattels of the Teſtator; yet ſince that Statute, viz. in the late Queens time, the Law was twice admitted ſtill to be according to the third of H. 6. viz. That Land given to Executors for the payment of Debts and Legacies is Aſſets, and ſo the money thereof coming. b9 Eliz. Dyer 264. & 14 Eliz. Dyer▪ 31.Likewiſe, if a man make a Feoffment upon Condition, that the Feoffee ſhall ſell the Land and diſtribute the money to the Teſtators uſe; whereupon he ſelleth the Land, and the Feoffor maketh him his Executor, the money received for the Land ſold ſhall be Aſſets in his hands.cBrook. Exec. 51. 2 H. 4. 21. & 3 H. 6. 3.
7. As the Goods which a man hath as Executor to another, are not liable to be taken in Execution for his own debts, either upon Recognizance, Statute or Judgement had againſt him: So if ſuch a one die indebted, leaving to his Executor ſuch Goods as he had as Executor, theſe ſhall not be Aſſets in the hands of ſuch Executors Executor, as ſubject to the payment of the Laſt Teſtators debts, but liable only to the payment of the Debts and Legacies of the firſt Teſtator.dPlowd. Com. 525. int. Bransby & Grantham. P. 20 Eliz.
8. If the Grantee of the next Avoidance of a Church, dies after the Church becomes void, and before he preſents; In this Caſe the Grantees Executor by preſenting whom he pleaſe, ſhall not thence be underſtood to have Aſſets for the payment of the debts of ſuch Grantee or Teſtator, for that legally no profit could be made of ſuch preſentment; yet if in that Caſe a Stranger ſhould happen to preſent, and thereupon ſuch Executor of the ſaid Grantee in a Quare Imped. recover Dammages, the money of ſuch Dammages ſo recovered ſhall be Aſſets. eSales Caſe, in Com. Ban. Mich. 32, & 33 Eliz.Yet it is by good Authority ſaid, That an Advowſon is Aſſets; fCo. ſup. Littl. l. 3. c. 13. in fin. Sect. 712.but a Seigniory of Homage or Fealty, or in free Almoigne is no Aſſets, becauſe not valuable.gIbid.
9. As the Teſtators Debtors Land after Execution taken by the Executor in Extent, turns a Perſonal Duty into a Real Chattel, and into Real Aſſets: So money paid to the Executor by ſuch a Debtor for ſuch an Extent, or by a Mortgage for a Mortgage of a Leaſe for years, turns theſe Real Chattels into Perſonal Aſſets charging the Executor. Note, that Aſſets muſt be in State or Intereſt, and not in uſe or right of Actions or Rights of Entry, for they be no Aſſets until they be brought into Poſſeſſion.†Coke ſup. Littl. lib. 3. cap. 13. Sect. 712.
10. A Debtee making the Debtor his Executor, or dying Inteſtate, Adminiſtration be committed to the Debtor; this Debt as for ſo much ſhall ſtill continue as Aſſets in his hands as to other Creditors; yet a Debtor making the Debtee his Executor, he may retain ſo much as to ſatisfie his own debt, and it ſhall not be deemed as Aſſets to any other Creditor. As ſuppoſe A. B. having Goods to the value of One hundred pound dies Inteſtate, and obliged to C. and D. in One hundred pound a piece, the Adminiſtration of whoſe Goods is committed to E. F. and then afterwards C. dying maketh the ſame E. F. his Executor; In this caſe the ſaid E. F. may retain the One hundred pound for ſatisfaction of his own Debt, and it ſhall not be deemed as Aſſets in his hands, as to ſatisfie D. or any other Creditor. *Barnets Caſe, Hill. 8 Jac. Plow. 184.But an Executor of his own wrong, to whom the deceaſed was indebted in a certain ſumm of money, entring upon ſo much of the deceaſeds Goods to the value of his debt, thereby intending to pay and ſatisfie himſelf, ſhall be held chargeable with ſo much as Aſſets in his hands, for the ſatisfaction of any of the deceaſeds Creditors or Legatees. hCoke 5. 30. Dyer 2.Likewiſe the Executors of an Adminiſtrator are chargeable, where he did neither pay the debts, nor leave the Goods to the Adminiſtrator, but otherwiſe diſpoſed of them.iOffic. Ex. fol. 199.
11. Other mens Goods and Chattels in the Executor or Adminiſtrators hands that were in the deceaſeds poſſeſſion, whether he had or had not right to them, ſo as they belong not to the Executors, make not the Executor or Adminiſtrator chargeable, they being not Aſſets in his hands. For this reaſon, if another mans Goods happen to be among the deceaſeds goods, and they all without diſtinction come to the Executors or Adminiſtrators hands, this other mens Goods ſhall not be Aſſets in their hands. Nor are Rents belonging to the Heir, though received by the Executor, any Aſſets in his hands; neither are the Goods and Chattels of a perſon Deceaſed and Out-lawed at the time of his death any Aſſets in his Executors hands, becauſe he was diſintereſſed thereof by the Out-Lawry.kKelway 63. Coke 6. 58. Dyer 362. Dr. & S…. lib. 2. cap. 3.
12. An Executor having Goods of the deceaſed to the value of One hundred pound, taking up an Obligation of the Teſtators of the ſame ſumm, and really paying the money, is diſcharged from having Aſſets as to this to any other, for that the property thereof is now ſolely in himſelf. The Caſe is the ſame, if he ſurrender his own body, or give the body of another for him to the Teſtators Creditor for the debt; but a bare Promiſe made by the Executor, or another for him, to pay the Teſtators ſaid debt, will not diſcharge him of Aſſets. lGoldsb. 79. Pl. 15.But if Executors do really pay the Teſtators Debts of their own Goods, they may retain the Teſtators Goods to the ſame value to their own uſe. m6 H. 8. 2. Dyer fol. 2. & fol. 187.So that the Executor paying the juſt value of the Teſtators Goods to his Creditors, may retain the ſame Goods in his hands, which ſhall not charge the Executor as Aſſets. Finally, this is a ſure Rule, That where no fault is in the Executor, there he ſhall not be bound to pay more for his Teſtator than the Teſtators Goods do amount unto.
13. Action of Debt was brought againſt Executors; the iſſue was, whether there were Aſſets in the hands of the Executors the day of the Writ brought; it was given in Evidence for the Plaintiff in the Action, That the ſame day the ſumm of One hundred pound was paid to the Executors in the Prerogative Court, and preſently by the Order of the ſaid Court, the Executors paid the ſaid One hundred pound to another Creditor of the Teſtator; but the Opinion of the Court was, in regard the money was once in the Executors hands, that payment of it over, by the Order of the Court of Prerogative, was not to the purpoſe; and therefore the ſame was adjudged to be Aſſets in their hands: But yet it was holden, That upon ſpecial pleading of ſuch matter, peradventure it might not be Aſſets in their hands, to pay another debt.n4, & 5 Ma. Dyer▪ 208.
When an Adminiſtrator compounds with one who hath a Judgement of One hundred pound for Sixty pound, who offereth to acknowledge ſatisfaction upon Record, and the other defers it to the intent to ſuffer it to ſtand in force to deceive a Creditor; this ſhall not hurt the Creditor, but he ſhall recover; and the money remaining in the Adminiſtrators hands-ſhall be Aſſets, notwithſtanding ſuch Compoſition.oPaſch. 8 Jac. in C. B. Turners Caſe. Co. 8. part. 132.
If I deviſe Lands to my Executors for Three years for the payment of my Debts, and I make Executors, and dye; this is Aſſets in my Executors hands. But if I Deviſe my Land to be ſold for the payment of my Debts, and I make Executors, and dye; this is no Aſſets before the Lands be ſold. pPaſch. 9. Jac. in C. B. Brownl. 1 part. 34. vid. Hill. 10 Jac. in C. B▪ Brownl. 2. part. 47. acc.Alſo if an Executor doth make gain of the Teſtators money, the ſame ſhall be Aſſets in his hands. qHill. 12. Jac. C. B▪ Rott. 1963. Harcock & …renhams Caſe. Brownl. 1 part. 76, 77…..
It is not requiſite, that every Aſſets be a thing in poſſeſſion; or once in the hands of the Teſtator; for a thing may be Aſſets which was never in the Teſtators hands, if thoſe things come in lieu of the things which were in the Teſtators hands, as money for Land or other Goods ſold. Alſo things in Action or Poſſeſſion, certain or uncertain, if they be releaſed, are Aſſets; the reaſon is, becauſe by ſuch releaſe is given away that which might have been Aſſets: And therefore if Treſpaſs be done to the Teſtator in his life-time, for taking his Goods, and he dieth, and his Executors releaſe all Actions, the ſame is Aſſets, becauſe it might be proved to the Jury, That had the Executors not releaſed, but had brought their Action of Treſpaſs de bonis aſportatis in vita Teſtatoris, that they might have recovered Dammages, which would have ſatisfied Debts or Legacies; and therefore the releaſe of Executors in ſuch Caſe ſhall be Aſſets.rMich. 27 Eliz. in C. B. Ritleys Caſe. Godbolt 29, 30. vid. Trin. 13 Jac. in C. B. Foſter and Jackſons Caſe. Hob. 59, & 60. a… vid. Mich. 15 El. Owen 36. adjudged acc.
An Adminiſtrator may take the Goods which are given by the Inteſtate to defraud Creditors, for that the gift is void, and therefore they ſhall be accounted Aſſets. Alſo, if a man doth Adminiſter as Executor, and then takes Letters of Adminiſtration; it is at the Election of the party to Sue him as Executor or Adminiſtrator.sMic… in C. B. … and S… S… O…
If a Teſtator Mortgages a Leaſe for years, and dies, his Executors may redeem it with their own money; and the Leaſe ſhall be Aſſets in their hands, for ſo much as the Leaſe is worth above the ſumm which they paid for the redemption of it.t… in C▪ … and … Leon. 155.
If a Debtee dye Inteſtate, and the Ordinary commit Adminiſtration to the Debtor, whereby the debt is extinct, yet it ſhall be Aſſets in his hands as to debts, becauſe the Ordinary had no power Trin. 7 Jac. B. Roll. Abridg. tit. Execut. lit. G.to diſcharge the debt, as was agreed per Curiam.
If a Feme Executrix to her former Husband, take another to Hill. 29 Eliz. Croſman verſ. Read Moo. Rep. nu. 363. Paſch. 5 Eliz. Moo. Rep. nu. 157.Husband, to whom her former Husband was indebted, the debt is extinct, and ſhall not be Aſſets.
It was held by all the Juſtices, That if a Feme Executrix hath a Term, and ſhe take a Husband, who purchaſed the Reverſion, the Term is extinct as to the Feme if ſhe ſurvive, yet in reſpect of all Strangers ſhe ſhall account as Aſſets in her hands.
Debt againſt D. as Executor, the Defendant pleads Plenè Adminiſtravit, Hill. 1 Jac. C. B. Richardſon verſ. Dowell. Cro. Rep. par. 2. Pl. 28.and iſſue upon Aſſets; the Jury found, that he Adminiſtred, and had Aſſets in Ireland: And whether that were Aſſets here, they prayed the diſcretion of the Court; and all the Juſtices (beſides Walmeſley) held that it was well found; for they may find a thing in Ireland; and when they find that he hath Aſſets, that is ſufficient; and when they further ſay, in Ireland, it is idle and vain. It was therefore adjudged for the Plaintiff.
Debt againſt the Defendant as Executor of J. S. he pleaded Mich. 27; & 28. Eliz. C. B. Brightman verſ. Reighley. Cro. Rep. par. 3.Fully Adminiſtred, &c. and upon a ſpecial Verdict it was found, that J. S. made the Defendant his Executor, being then within Age, and thereupon the Ordinary committed Adminiſtration to A. and B. who Adminiſtred, and they had in their hands when the Defendant came to his full Age, of the Goods of the Teſtators Six hundred pound, and the Defendant at his Age Proved the Will, and then releaſed to A. and B. all Actions. And it was adjudged, that it was Aſſets. Anderſon ſaid, The doubt was, becauſe it was uncertain what he releaſed, and for that only an account lyeth; but here the certainty appeareth by the Verdict. And Piriam ſaid, If an Executor doth releaſe an account, and it is not certain what he ſhall recover, it is not Aſſets; but if it can appear or be Proved, that ſo much was due, it is Aſſets. For the Law preſumeth he hath received ſo much as he doth releaſe; and the Plaintiff had Judgement. Nota, Rhodes ſaid, That in 17 Eliz. it was Ruled, that where one made his Laſt Will, and thereby willed, That none ſhould have any dealing with his Goods until his Son came to the Age of Eighteen years, except J. S. that by this J. S. was Executor during the minority of the Son; and that it hath been adjudged, that when as one upon his death-bed ſaid to his Wife, That ſhe ſhall pay all and take all; by this ſhe was Executrix.
Debt upon an Obligation againſt one as Executor of A. the Defendant pleads plenement Adminiſtravit, and iſſue thereupon; the Jury find a ſpecial Verdict, That A. made E. his Executrix, and Hill. 37 Eliz. Wilcocks verſ. Watſon. Cro. Rep. par. 3.died poſſeſſed of divers Goods, which E. made a fraudulent gift of all her Goods to J. S. &c. and continued in the poſſeſſion of them, and took the Defendant to Husband and died; That the Defendant is poſſeſs'd of part of theſe Goods to the value of &c. and paid Legacies; and if thoſe Goods ſhould be found to be Aſſets in his hands, they found for the Plaintiff; and if &c. then for the Defendant. Fenner held that they ſhould not be Aſſets, for although being but fraudulent, it ſhall be ſaid to be a void Gift againſt the Donor and Creditor, and ſo lyable to his debt; yet it is good betwixt the Donor and Donee, and ſhall not be Aſſets in the hands of any but the Donor or Donee; but here the Husband is a meer Stranger thereto, wherefore &c. But all the other Juſtices è contra; for that by the Common Law (the Gift being fraudulent) they are lyable to the Plaintiffs Execution: And Popham ſaid, If the Gift were good againſt all but Creditors (as it is) then they belong to the Donee, and in his hands are lyable to this debt; and if the Gift be void, they remain to the Executors of the Feme, and then the Baron having taken them and paid Legacies, is chargeable by reaſon thereof as Executor de ſon tort demeſne; and ſo thoſe Goods quacun que via data are lyable to this debt in whoſeſoever hands they come, unleſs by Title Paramount, or by Sale bonâ fide; wherefore it was adjudged for the Plaintiff.
Scire facias againſt S. as Executor of F. V. upon a Judgement given againſt the Teſtator of Two hundred pound, he pleaded payment Hill. 41 Eliz. Bethel verſ. Stanhope, Cro. Rep. par. 3.of Forty pound debt due to the Queen, and beſides that he had riens in ſes mains. And thereupon they were at Iſſue, whether he had Aſſets? And it was found by ſpecial Verdict, That the Teſtator was poſſeſs'd of divers Goods, to the value of Two hundred & fifty pound, and by covin to defraud his Creditors, made a Gift of his Goods to his Daughter, with a condition of payment of twenty ſhillings, that it ſhould be void, and died. The Defendant intermedled with the Goods, and afterwards the Daughter by this Gift took the Goods; and after that Adminiſtration of the Goods of F. V. was committed to the Defendant; and whether upon this matter he ſhall be charged as Executor, and that thoſe Goods ſhould be Aſſets in his hands, was the queſtion. And after Argument it was adjudged for the Plaintiff. For firſt, when he medled with the Inteſtates Goods, although he were neither Executor nor Adminiſtrator, and afterwards Adminiſtration was committed unto him, a Creditor hath election to charge him as Executor or Adminiſtrator; eſpecially here when he pleads as Executor, the finding by the Jury, that he is Adminiſtrator, is not to purpoſe, 9 Ed. 4. 53. 2 R. 3. 20. 21 H. 6. 8. Secondly, all the Court held, That this Gift of the Goods is in it ſelf fraudulent, as appears by the Condition; and the Covin is expreſly found by the Jury, and then it is utterly void againſt the Creditors, by the Stat. of 13 Eliz. and the Inteſtate died poſſeſſed of them; and when afterwards the Donee took them, it was a Treſpaſs againſt the Adminiſtrator, for which he hath his remedy, and they are alwayes Aſſets in his hands. But if a Treſpaſſer takes Goods from a Teſtator in his life-time, ſo as they never were but a choſe in Action to the Executor or Adminiſtrator, they be not Aſſets until they be recovered: Wherefore notwithſtanding the taking of them by the Donee, yet they alway remained as Aſſets in the hands of the Adminiſtrator, and therefore he is chargeable for them as Executor de ſon tort, by his intermedling with them before Adminiſtration committed, and the Goods by Law remained alwayes in his poſſeſſion. Wherefore it was adjudged for the Plaintiff.