The Orphans Legacy, Part 2 · Chapter 28 – Chapter 29

The Orphans Legacy · Part 2 · Chapter 28 – Chapter 29

p. 142CHAP. XXVIII. Of Debts, Legacies, and Mortuaries, and the Executors method in the payment thereof.

1. Debts to be paid before Legacies.

2. The Executor may pay himſelf firſt.

3. What Debts to the Crown ſhall have priority of payment before Debts to the Subject.

4. Judgements upon Record to be ſatisfied next after the Debts due to the Crown.

5. Next after Judgements upon Record, Debts by Statutes, or Recognizances, are payable before meer Perſonal Debts.

6. After Statutes and Recognizances, Debts due by Obligations or penal or ſingle Bills are to have the next precedency in payment.

7. Debts upon Specialties, Bonds and Bills are to be ſatisfied before Debts upon a ſimple Contract.

8. After Obligations Debts due upon ſimple Bills, Merchants Books, and other Specialties are to be paid.

9. Touching Debts due for Rent upon Leaſes, what the Law in that Caſe is.

10. Debts for Servants wages payable before Legacies.

11. Covin in an Executors payments ſhall not prejudice a Creditor.

12. Mortuary, what it is; when, where, how much, and in what Caſes payable.

13. Law-Caſes relating to this Subject.

1. ALl the Debts muſt be paid before any Legacies be paid or delivered, and if there be not enough (over and above the Legacies) to pay all the debts, then and in that Caſe any thing given by way of Legacy may be ſold for payment of the Debts; and in ſuch Caſe the Legataries muſt be content to loſe their Legacies.

2. In the firſt place the Executor or the Adminiſtrator, if he be a Creditor to the deceaſed, ſhall be preferred before others; ſo that he may deduct to ſatisfie himſelf firſt, although other Creditors loſe their whole debt thereby, ſpecially if his debt be in equal degree with the other debts; ſo that an Executor may allow his own debt in prejudice of other like Creditors, aaPlowd. in Caſ. inter … … and Darey.if he hath made an Inventory, and in caſe he be not Executor of his own wrong. bbCo. Rep. lib. 15. ſol. 30.Underſtand this eſpecially when the debts are of equal degree, for if the Teſtator be indebted to other men by Statute, p. 143Judgement, or Recognizance, and to the Executor only by Bond or Specialty, then may he not firſt pay himſelf, unleſs there be Goods ſufficient to pay both him and them. But by the Civil and Eccleſiaſtical Laws the Executor is in the ſame caſe with other like Creditors.cc…. Scimus. §. in computatione. Cod. de jure Deliber. & C. Stat. §. Statuimus de Teſt. lib. 3. Prov. Conſt. Cant.

3. If there be any debt due to the Crown, and the King Commence his Sute for it before any other man can get a Judgement for his debt, he ſhall be ſatisfied before any others; neither is it in the Election of the Executor to prefer any other debt due to any Subject. ddMagn. Chart. c. 18.So that if the Executor be Sued by any Subject for any ſuch debt, he may plead in Bar of the Sute, That his Teſtator died thus much in debt to the King, ſhewing how, &c. and that he hath not Goods ſurmounting the value of that debt. eeM. 33, & 34 Eliz. The Lady Walſinghams Caſe. in Com. B. & Trin. 39 Eliz.And if the Sute be not ſo by way of Action, as that the Executor hath a day in Court to plead, but be by way of ſuing Execution, as upon Stat. Merchant or Staple, then is the Executor put to his Audita Querela, wherein he muſt ſet forth this matter: But this priority of payment of the Kings debt before any other, is to be underſtood of ſuch of the Kings debts only as are of Record, and not of ſumms of money due to the King upon Wood-ſales, or Sales of his Minerals, for which no Specialty is given, or of Amercements in his Courts Baron, or Courts of his Honours, which be not Courts of Record, or of Fines for Copy-hold Eſtates there, or of mony upon the Sale of Strayes within the Kings Manors or Liberties, or of forfeitures to the Crown of debts by Contract, due to any Subject, by Out-lawry or Attainder, until Office thereupon found. ffOffic. Exec. cap. 12. p. 206, &c.But of Fines and Amercements in the Kings Courts of Record, there is no queſtion but they are debts of Record.

4. When the King is ſatisfied, then muſt the debts of the Subject be paid, ggCo. 9. 88. Plow. 184. 545. Dyer 80. Dr. & Stu. 75, to 79. 138. 33 H. 8. 39. Co. 5. 28. 4. 54, 59, 60. 8. 132. Dyer 232. 32. 21 E. 4. 21. & Broo. Exec, 88. 172. Co. 8, 132. Dy. 32. Plow. 279, 280. Broo. Exec. 103. Kelw. 74. Brow. Rep. part. 1. 73▪ 53. 76, 77▪ 80. 104. 103. 2 part. 51. 82. 37.if there be Goods of the deceaſed ſufficient remaining, and that in this order or method. Firſt, before other perſonal debts, whether they be due by Obligation, Bill, or otherwiſe, Judgements and Condemnations are to be diſcharged; that is, the debts due by Record, by any Judgement had againſt the deceaſed in any Judicial proceeding in any Court of Record. hhBroo. Exec, nu. 172. Dr. & Stu. lib. 2. cap. 10. D. Coke. lib. 4. fol. 60.Nor is it any Plea for a Creditor by Statute to ſay that his Statute was acknowledged before the Judgement, and ſo is more ancient; for a Judgement though latter, yet being more puiſne, is to be preferred before a Statute in time precedent: But if this Judgement be ſatisfied, and is only kept on foot to wrong other Creditors, or if there be any Defeazance of the Judgement yet in force, then the Judgement will not avail to keep off other Creditors from their debts. iiCo. l. 5. fol. 28, & l. 8. f. 132. 2.And here Note, that between one Judgement and another had againſt the Teſtator, precedency or priority of time is p. 144not material, but he that firſt ſueth Execution ſhall be preferred, and before any Execution ſued it is at the Election of the Executor to ſatisfie which Judgement he will firſt. kk15, & 16 El.And here obſerve farther, that this is to be underſtood of Judgements only againſt the Teſtator, and not of any againſt the Executor himſelf; alſo, that what is ſaid of a Teſtator in Caſe of an Executor immediate, is to be underſtood likewiſe of the Teſtators Teſtator in Caſe of the Executor of an Executor. Again, the foreſaid reſpect to debt by Judgement is not to be reſtrained or limited, only to the Four Courts at Weſtminſter, but extends it ſelf to Judgement in all other Courts of Record, as in Cities and Towns Corporate, having Power by Charter or Preſcription to hold Plea of Debt above Forty ſhillings; for though Execution cannot be there had of any other Goods than ſuch as are within the Juriſdiction of that Court, yet if the Record be removed into Chancery by a Certiorari, and thence by Mittimus into one of the Benches, then Execution may be had upon any Goods in any County of England.

Again, Debts upon Specialties muſt be paid before debts upon Contract, ll29 H. 8. Dyer 32.and debts upon Record muſt be paid before debts upon Specialties; alſo a Judgement in a Court of Record ſhall be paid before Statutes, which are but private Records, as alſo before Recognizances acknowledged by Aſſent of the parties. Likewiſe a debt upon or after a Recovery, though it be a latter debt, ſhall be paid before a precedent debt due by Recognizance or Statute, becauſe although they are both Records, yet the Judgement in the Kings Court, upon Judicial proceeding, is the moſt notorious and more eminent in degree than a Statute or Recognizance taken in private by conſent of the parties, and therefore ſhall be preferred before it.mmMich. 32 El. in C. B. Pemberton and Barhams Caſe, & Co. 4 part. The Caſe of the Warden and Commonalty of Sadlers.

5. In the next place, Debts due by Statutes or Recognizances entered into by the deceaſed are to be ſatisfied; for the debt due upon Statute Merchant and Recognizance is to be diſcharged, (if there be Aſſets) before any Perſonal Debt; nnCoke 5. 91. Seamans Caſe; Execution againſt an Executor upon a Statute; & l. eos Cod. Qui potiores in pignore.For that by vertue of the Recognizance, not only the perſon of the Debtor is obliged, but alſo after the expiration of the day of payment, the moveable Goods of the Debtor may be apprehended, and ſold for ſatisfaction of the debt. ooAn. 13 Ed. 1.Here Note, that a Statute and Recognizance ſtanding in equal degree, it is at the Executors Election to give precedency to which he will; neither is it material which of them was firſt or laſt; nor between one Statute and another doth the time or antiquity give any advantage as touching the Goods, though touching the Lands of the Conuſor it doth; but as for his Goods in the hands of the Executor, who firſt ſeizeth them by his Execution, ſhall have the preferment; and before ſuing of Execution the Executor may give precedency to whom he p. 145will, and may if he pleaſe ſatisfie the Recognizance before the Statute, at leaſt if he do it before Execution ſued thereupon: But Executors (under pretence or colour of Recognizances for the peace or good behaviour, or the like, or under pretence of Statutes for performing Covenants touching the enjoying of Lands, not forfeited, nor any ſumms of mony poſſibly ever thereupon becoming payable) are not to with-hold payment of debts by Specialty, and thereby defraud the Creditors; ſo that if the Statute or Recognizance be only for performance of Covenants, and no Covenant be broken, an Obligation for the payment of preſent money ſhall be diſcharged before it: Alſo, no Judgement or Statute that is diſcharged, or is left and ſuffered to lye by agreement to bar others of their debts, ſhall bar debts upon Obligations. And here Note, That a Statute is a more expedite remedy than a Recognizance; for upon a Statute Execution may be taken out without any Scire Facias, or other Sute, which cannot be in the Caſe of a Recognizance, for there if a year be paſs'd after the acknowledgement, no Execution can be ſued out againſt the party, himſelf acknowledging it, without a Scire Facias firſt ſued out againſt him; and if he be dead, then though the year be not paſs'd, yet muſt a Scire Facias be ſued.

6. After Statutes and Recognizances debts due by Obligations and penal and ſingle Bills are to be paid if there be yet Aſſets. ppBroo. Abrid. tit. Exec. n. 172. 28 H. 8. Dyer 32. Dr. & Stud. cap. 10.And if there be divers Obligations, then it ſeemeth to be in the power of the Executor to diſcharge which he will firſt, qqBroo. ibid. & Dr. & Stud. lib. 2. cap. 10. p. 78.unleſs the day of payment in the one Obligation be expired, and in the other not yet come, in which Caſe the Obligation whereof the day of payment is expired is to be firſt ſatisfied; rrBroo. ibid. Labridg. dez Caſes. Edit. An. 1599. fol. 174. p. 2. nu. 4.or unleſs a ſute be Commenced for one of the Obligations, for then it is not in the Executors power in prejudice of that ſute to diſcharge an Obligation, for which no Action is brought. ssBroo. ibid. 172.But if Two ſeveral Creditors bring ſeveral Actions againſt the Executor upon Two Obligations, he that firſt getteth Judgement muſt firſt be ſatisfied. ttLabridg. dez Caſes, fol. 174. p. 2. nu. 6.Yet a debt due upon Record may be paid depending the Action; uuBroo. ibid. nu. 172.and although in caſe of ſeveral Obligations, when the time of payment upon the one was come at the time of the Teſtators death, not ſo upon the other, and he to whom the Obligation is, whoſe time of payment was expired at the Teſtators death, forbear to demand or ſue for his debt, untill the other Obligation become alſo payable; In this Caſe it is then in the Executors power to pay which he pleaſe, if the Goods extend not to pay both; for it is the Commencement of the Sute only which intitles to priority of payment, or at leaſt reſtrains the Executors election; therefore an Executor may not pay a debt of equal degree to a Creditor that brings no Action for the ſame after another p. 146Creditor hath brought his Action. wwDr. & Stud. lib. 2. cap. 10.But whether a bare verbal demand without a ſute be ſufficient to hinder the Executors payment to the other, is a queſtion, but reſolved in the negative. xxOffic. Exec. p. 222, 223. & Dr. & Stud. p. 78.Yet an Executor may make payment of any debt due by Record, as by Judgement, Statute, &c. after ſute begun by another for ſome other debt. And notwithſtanding what hath been ſaid, an Executor cannot in all Caſes pay him firſt who firſt commenced ſute, but he who firſt hath Judgement muſt firſt be ſatisfied; as when one Creditor doth firſt begin ſute, and others ſuing after him get Judgement before him. yy41 E. 3. Fitz. Exec. 68. 6, & 7 El. Dyer 232. vid. 21 H. 7. Kelw. 74.And in ſuch Caſes the Executor may expedite the ſute of the one by a quick confeſſion of his Action, and retard the ſute of the other by Eſſoignes, Emplances, or dilatory pleas. zz5 H. 7. 27. So Walmſley Juſt. P. 39 Eliz. Co. lib. Intr. 269. Such a Recovery by confeſſion is pleaded againſt another, and held good; Dr. & Stud. p. 78. b.Nay, after ſute commenced, yet until the Executor hath notice thereof, he may pay any other Creditor, and then plead that he hath fully adminiſtred before notice of the others ſute.

7. For it is a good Plea for the Executor to ſay, That he had fully Adminiſtred before he had notice of the Plaintiffs Writ; **7 H. 4. 10. Plow. Com. 277.for though he do pay debts upon Contracts, the Writ depending againſt him upon a Bond, whereas he had no notice of the ſute, he ſhall not be in ſuch caſe charged. ††2 H. 4. 21.Yet regularly in this caſe of an Action brought upon a ſimple Contract, the Executor is to plead and to ſet forth thoſe debts upon Specialties, yet debts upon a ſimple Contract are to be paid before debts of Charity. aaDr. & Stud. lib. 2. c. 10.Likewiſe debts upon a ſimple Contract are to be paid before amends for a Teſpaſs done by the Teſtator. bbDr. & Stud. ibid.And here Note, that between a debt by Obligation, and a debt for Dammages upon a Covenant broken, there is not any priority or precedency, but the Executor may pay which he pleaſe firſt. But if one hath a debt due to him from the deceaſed upon a ſimple Contract, or the like, and he ſue the Executor for it, when there be debts due to others upon Bonds and Bills unſatisfied; in this Caſe the Executor may not pay this debt, nor may he ſuffer the Plaintiff to Recover in his Action, unleſs he hath Aſſets ſufficient to ſatisfie the Bonds and Bills over and above that of the ſimple Contract.

8. After Obligations, Debts due upon ſimple Bills, or Merchants Books, or other Specialties are to be ſatisfied and diſcharged, ccDr. & St. ibid.though indeed Bills are of the nature of an Obligation, and charge the Executor as well as an Obligation; for whatever words prove a man to be a debtor, or to have another mans money in his hands, or wherein the Teſtator, if he were alive, could not wage his Law, ſhall charge the Executor. ddFulb. Paral. l…b. 2. fol. 30.And under this Head may be placed debts due upon Shop-Books, and ſome verbal Contracts and Covenants Parol.

9. Now debts due for Rent upon Leaſes of Land or Grants of p. 147Rent will come into Conſideration; though ſome are of Opinion that debts due for Rent in the Teſtators life-time (be the Rent reſerved upon Leaſes made by or without Deed, for years, or at Will) are in equality of degree with debts due upon Specialties; if the Rent grew due ſince the Teſtators death, then it is not in Law accounted the Teſtators debt, for only ſo much is in Law accounted Aſſets to the Executor as the Profits of the Leaſe amounted to over and above the Rent; ſo as for that Rent ſo behind the Executor himſelf ſtands debtor, and therefore is ſueable in the Debet and Detinet, whereas for the Rent behind in the Teſtators life-time, and all other the debts of his Teſtator, he muſt be ſued in the Detinet only. For this reaſon it is, that an Executor ſued for debt upon Bond or Bill, cannot (except in ſome ſpecial caſes) plead a payment or recovery of Rent grown due ſince the Teſtators death, though of Rent behind at the time of his death it be otherwiſe.

10. If the Creditor hath no Specialty or Writing, the Executor is not bound preciſely to pay the pretended debt, ſaving for the Servants wages; eeBroo. Exec. nu. 87. & nu. 163.for wherever the Teſtator might wage his Law, no Action lyeth againſt his Executor. ffTerms of Law, verb. Exec.But debts due for Servants wages, and Workmen alſo muſt be paid. For Aſſumptions or Promiſes made by the Teſtator upon good conſideration will oblige his Executors to a performance, or recompence in caſe of non-performance; but theſe are poſt-poſited and give place to all the former; and an Action of the Caſe may be brought againſt the Executor upon the Promiſe or Aſſumption made by the Teſtator in his life-time by word only, without writing, if there be Aſſets. ggBroo. Exec. nu. 172.And theſe Debts by Contract or Aſſumption expreſs are to be ſatisfied before Legacies; hhCo. lib. 9. fol. 88. & Dr. & Stud. lib 2. cap. 10, 11.and alſo before the Reaſonable Part to the Wife and Children, to which by cuſtome in ſome Counties they are intitled.ii21 Ed. 4. 21. & 2 E. 4. 13. & 2 H. 6. 16.

11. If there be Two Creditors in equal degree, and both ſue, if the Executor doth by Covin or agreement help that Creditor that began his Sute laſt, to his Judgement or Execution firſt, and there be not Aſſets then left to pay the other Creditor, he muſt be ſatisfied out of the Executors own Eſtate, if this Covin be proved againſt him; for an Executor ought not to help one Creditor to a Judgement ſooner than the other Covenouſly. But the confeſſion of an Action ſo done on purpoſe by an Executor, is no Covin in the Law; for Covin is where the Action is untrue, and not where the Executors bear a lawful favour. kkDr. & Stud. ibid.But where there is really Covin in an Executor, there it ſhall be no prejudice to a Creditor; and for this reaſon it is alſo, that an Acquittance given to an Executor for more than he paid, ſhall not prejudice a Creditor for more than the Executor did really pay.

p. 14812. A Mortuary or Corſe-preſent is a Gift left by a man at his death to his Pariſh Church, for the recompence of his perſonal Tithes and Offerings, not duly paid in his life-time; and this by the Executor was uſed to be paid, next to the Heriot, and before the Debts. llFlet. lib. 2. cap. 50. Bract. l. 2. fo. 60. Britton. fol. 178. Co. ſup. Littl. l. 3. cap. 3. Sect. 287.And if a man be ſued in the Spiritual Court for a Mortuary, a Prohibition will lye. mmDr. & Stud. lib. 2. c. 55.Though it appeareth by the Stat. of 13 Ed. 1. commonly called Circumſpecte agatis, That Mortuaries are ſueable in the Court Chriſtian; and in the Stat. of 21 H. 8. cap. 6. an Order and Rate in money is preſcribed for Mortuaries. And in Ancient Times if a man died poſſeſſed of Three or more Cattel of any kind, the beſt being kept for the Lord of the Fee, as a Heriot; the ſecond was wont to be given to the Parſon in right of the Church. nnCap. Statutum. De Conſuetud▪ in Provinc.But more particularly touching Mortuaries, theſe Five things are more eſpecially obſervable from the ſaid Statute: (1.) That no Mortuary ſhall be taken or demanded of any for any perſon dying within this Realm, whoſe moveable Goods at the time of his death extend not to the value of Ten Marks. (2.) That no Mortuary ſhall be given or demanded but only in ſuch places where by Cuſtome they have been uſed to be paid. (3.) That no perſon ſhall pay Mortuaries in more places than one, viz. in the place of his moſt uſual Dwelling or Habitation, and there but one only Mortuary. (4.) That for a perſon deceaſed, having at the time of his death in moveable Goods to the value of Ten Marks or more, (clearly above his debts paid) and under the value of Thirty pounds, there ſhall not be taken above Three ſhillings and four pence for a Mortuary; and under the value of Forty pounds, not above Six ſhillings and eight pence for a Mortuary; and of the value of Forty pounds or upward to any ſumm whatever (clearly above his debts paid) not above Ten ſhillings for a Mortuary. (5.) That for a Woman under Covert Baron, or Child, or any perſon deceaſed, that at the time of his death was not a Houſekeeper, nothing at all ſhall be paid by way of Mortuary. ooStat. 21 H. 8. cap. 6.And here Note, That Mortuaries ought to be ſatisfied out of the deads part only, that is, after and not before the Goods be divided among the Wife and Children, where by the cuſtome of the Countrey ſhe can challenge her Widows part, and they their filial portions; yet they are to be paid before any Legacies whatever; for that a Mortuary is of the nature of a Legacy, yea it is in the Law termed the Principal Legacy. Concerning other perſons exempted from Mortuaries, and of the extenſions and limitations, and other interpretations thereof, ſee the ſaid Statute of 21 H. 8. at large.

13. If an Adminiſtrator compound for Forty pound with one who hath a Judgement of One hundred pound; this under-hand p. 149compoſition ſhall not prejudice any other Creditor who is a ſtranger to it: For every Adminiſtrator ought to execute his Office lawfully, in paying Debts, Duties, and Legacies in ſuch precedency as the Law requires; and an agreement made between them and others ſhall not be to the prejudice of a third perſon.pp8 Jac. Coo. 8. part 132. Turner's Caſe.

In Action of Debt brought againſt an Adminiſtrator, it was the Opinion of the Court, That he might retain monies in his own hands of the Inteſtates, to ſatisfie a debt due to himſelf; But an Executor of his own wrong ſhould not retain to ſatisfie his own debt.qqMich. 11 Jac. in C. B. Bond and Greens Caſe. Godb. 216. vid. Coo. 5. part. Coulters Caſe.

An Adminiſtratrix durante minori aetate of an Executrix made divers Obligations unto the Creditors of the Teſtator, and afterwards took Husband: The Opinion of the Court in this Caſe was, That ſo much of the Goods of the Teſtators as amounted unto the value of the debts paid, and undertaken for, the. Husband might retain as his own.rrMich. 15 Jac. in C. B. Briers and Goddard's Caſe. Hob. 250.

Debt againſt an Executor by an Original, who pleaded a Recovery againſt him in the Court of Ipſwich, and that he had not any more Goods than what would ſatisfie the ſaid Recovery, and the Recovery was after the Teſt of the Original Writ; but he averr'd, That before the Recovery he had not any notice of the Sute by the Original; and the Plaintiff demurr'd; and it was adjudged for the Defendant, be it whether he had any notice or not; for if one ſue him, and give notice, yet he may confeſs the Action of another who commenced his ſute after the former, and therein may pleaſure his Friend, ſo as it be without fraud. But if he be ſued by one upon an Obligation, and will pay another debt by Obligation without ſute, there and in that caſe if he hath notice of the ſute, it is a Devaſtavit; otherwiſe if he hath no notice thereof; and ſo in ſuch caſe the notice is material.

p. 150CHAP. XXIX. Of Executors Accounts.

1. Executors obliged to Account. The Ordinaries power therein.

2. Within what time an Executor ought to Account.

3. An Account judicially made ſhall not prejudice abſent Creditors or Legataries not duly ſummoned.

1. TO render an Account is not the leaſt part of an Executors or Adminiſtrators duty, thereto obliged as well by his own Oath as by the Law; inſomuch that ſhould the Teſtator himſelf diſcharge his Executor from making an Account, yet may the Ordinary at his diſcretion in caſe of Fraud exact an Account from him. aaLynwood in c. Religioſa. verb. rationem de teſt. lib. 3. Provinc. Conſt. Cant. & Jo. de Athon. in mag. Gloſ. in Legatin. Libert. de Exec. Teſta. & Jo. de Canib. & Olden. Locis Citatis.Therefore the Ordinary may if he pleaſe call him to Account either Generally or Particularly, as the Caſe ſhall require; and that either at or without the motion or inſtance of the Creditors or Legataries, within a year, or what time he pleaſe; at which Account he may call all the Creditors and Legataries; and therein he muſt ſet forth what he hath received, what expended, and Prove it too if need ſo require: And upon a juſt Account ſo made, the Ordinary may acquit him, whereby he is diſcharged of all Sutes in the Spiritual Court. But as to that, the ſtile of each Court is to be obſerved. bbSwinb. part. 6. §. 20. nu. 4.And in the Proof of ſuch Accounts the leſſer ſumms, as under Forty ſhillings may be Proved by the Executors own Oath, the greater muſt be by due proofs.

2. The Executor ought to have a competent time for the performance of the Will before he be called to an Account, which time ought to be a Twelvemoneth: ccl. nulli C. de Epiſc. & Cleric. & Boic. in c. tua nobis; de Teſta. Extra. Covar. in c. 3. eod. tit.Yet he may ſooner be called to it by the Ordinary in caſe of Male-Adminiſtration, or if the Ordinary ſee cauſe for it; ddLynw. ubi ſupr. verb. Congr. & verb. rationem reddere.at leaſt to a particular Account; but herein alſo the ſeveral ſtiles of ſeveral Courts are to be obſerved. And in this Account the Funerals, Debts, Legacies, and moderate Expences ought to be allowed to the Executor ſo far as he hath really paid, or is obliged to. And the Executor having made a full and juſt Account, ought to be acquitted and diſcharged of all further ſute, if it be ſuch an Account of his whole Office; eeMenach. de Caſ. 209. in fin. Broo. Abridg. tit. Admin. n. 14.neither is he to be called by the Ordinary to any further Account.ffl. ſemel C. de Apoch. & Olden. de Exec. ult. vol. tit. 8. nu. 17.

3. No Executor is obliged to make any Account to the Creditors or Legataries extrajudicially; ggJo a Canib. de Exec. ult. vol. 2. part. § noviſſ…mum.but at their inſtance to the Ordinary he is compellable to it judicially: and at the making of ſuch Account they and all others having or pretending to have p. 151intereſt are to be ſummoned Legally to be preſent; hhSpec. de Inſt. edit. §. nunc vero nu. 45. & Lynw. in c. Statutum. §. & poſtquam verb. Ordinatios.Otherwiſe the Account made in their abſence, and they not ſummoned, will not prejudice them. iil. de unoquo que ff. de re jud.And yet extrajudicially an Executor may exact an Account of his Co-Executor, but not in Judgement or judicially; kkLynw. ibid. verb. rationem in fin. Gloſ. ibid,but the Ordinary as aforeſaid, may call them both or either of them to a Judicial Account.llL. 2. C. de Adm. tut.