The Orphans Legacy, Part 2 · Chapter 11 – Chapter 12
CHAP. XI. Of Debtors and Creditors made Executors, or Adminiſtrators.
1. How the making a Debtor Executor becomes a Releaſe of the Debt in Law.
2. In what Caſes this holds true where there are joynt-Executors appointed.
3. Ʋnder what limitations a Creditor-Executor hath precedency of other Creditors in paying himſelf firſt.
4. Law-Caſes relating to this Subject.
1. IF an Executor Prove the Will, and be indebted to the Teſtator, the Debt is extinct in Law; a2. Ed. 4. 3. 61. Plowd. Com. 36.yea, though the Executor died before he did ever Adminiſter or Prove the Will; bPlowd. Com. 185.for the Debt is releaſed in Law by making the Debtor Executor, though he never Adminiſter. c21 E. 4. 3. & 11 H. 6. 38.There is the like extinguiſhment of the debt, if the Creditor marry with one of the Executors of the Debtor: d… H. 4. f. 83, 84.But if the Debtor take Adminiſtration of the Goods of the Creditor, this ought not to diſcharge him of his debt, but it ought to be as Aſſets in his own hands, for that the Inteſtate did no Act to diſcharge him from the debt. Alſo if the Obligee make the Obligor his Executor, this is a Releaſe in Law of the Action, but the Duty remains, for the which they retain ſo much Goods of the Teſtator. e8 E. 4. 3. & 21 E. 4. 2. Coke Con. on Littl. Inſtit. part. 1. lib. 3. c. 8. Sect. 445. in med.Likewiſe, if an Infant of the age of Seventeen years releaſe a Debt, this is void: But if the Infant make the Debtor his Executor, this is a good Releaſe in Law of the Action. fCoke ibid.But if a Feme-Executrix take the Debtor to Husband, this is no Releaſe in Law; for that is injurious to the deceaſed, and in Law works a Devaſtavit. gIbid & Mich. 30, & 31 Eliz.But if the Teſtator make the Wife of one indebted to him his Executrix, it is a Releaſe in Law, as if ſhe her ſelf were the debtor; but if after the Teſtators death ſhe do marry with ſuch a debtor, then it is a devaſtation. hOffic. Exec. cap. 17. Sec. 1.Alſo if A. and B. be made Executors; the Teſtator being indebted to A. Ten pound, and B. being indebted to the Teſtator Ten pound, in this Caſe the debt of B. to the Teſtator ſtands in Law extinct. iIbid. cap. 2. & 21 H. 7. 31. Plowd. Com. 185. contra Danby & Choke. 8 E. 4. 3.And as it is thus at the Common Law; ſo alſo by the Civil Law, when the Creditor maketh the Debtor his Executor, by ſuch Executorſhip the debt is confounded, and that becauſe of impoſſibility in Law, foraſmuch as the Executor cannot bring an Action of debt againſt himſelf, being one and the ſame perſon; the Obligation therefore is by ſecret Act of Law diſannull'd.kPhil. Dec. ad Reg. jur.
2. So alſo it is if any one of joynt-Debtors be made Executor, or any one of the joynt-Executors be a debtor to the Teſtator, for that they cannot Sue without making him who is a Debtor alſo a Plaintiff, which he is not capable of againſt himſelf. lPlowd. ubi ſupra. & 2 R. 3. 20. per Starkey. & 22. per Vavaſor.The Law is alſo the ſame for Actions either of Treſpaſs or Account. mIbid. 9 H. 5. 13.So that if Two perſons be joyntly bound to the Teſtator in One hundred pound, and he make one of them his Executor, this is held for a Releaſe in Law of the Bond or debt to them both. nFulbec. Parallels. lib. 1. Diolog. 7. fo. 44. & 11 H. 4. pl. 31. & 21 E. 4. 81.So if one make his Debtor and another his Executors and die, in this Caſe if that Executor who was not indebted to the Teſtator ſurvive the indebted Executor, he ſhall not have an Action of debt againſt the Executor of his Co-Executor although the indebted Executor did not Adminiſter in his life-time: for the Action was once extinguiſhed and determined, and no Action can be brought but in the Name of them both. o20 E. 4. 17. & 21 F. 4. 3. & 21 H. 7. 31. per Fineux.But if one that is indebted make his Creditor and another his Executors, the Creditor may have an Action if he do not Adminiſter; p8 E. 4. 3. per Brian.But when the Teſtator is indebted to me and maketh me his Executor, I may detain the Goods for my debt: So that it ſeems, that though the Action be extinct in regard of the Teſtator, yet the debt is ſtill in eſſe in reſpect of ſtrangers or other Creditors.q7 H. 18. 27 H. 6. in Scir. fac. 7 El. Com. Greisbrocks Caſe. 275. & Labridg. dez Caſes, Edit. A. D. 1599. tit. Execut. nu. 3. & Fulb. ubi ſupra. f. 44. & l. Scimus. §. in Computatione. Cod. de jure Deliberandi.
3. When a Creditor to the Teſtator is made his Executor, he may detain ſo much of the Teſtators Goods, as whereby to ſatisfie himſelf in the firſt place before other Creditors. But withall, although the Teſtators Creditor, being made his Executor, be in as good caſe or better than other Creditors of the Teſtator, rDict. l. Scimus. §. in Comput. & cap. Stat. §. Statuimus. l. 3. prin. Conſt. Cant.and may allow his own debt before other like Creditors, sPlowd. in Caſ. inter Woodward and Parry. & Labridg. dez Caſes. fol. 174. nu. 3.and may detain ſo much of the Goods of the deceaſed in his own hands as his debt doth amount to; tFulb. ubi ſup. fol. 44.yet this is to be underſtood only when he hath duly made an Inventory of the Deceaſeds Goods according to Law; udict. L. Scimus. §. in Com.Nor hath he ſuch a clear power to pay himſelf before any other, unleſs his debt be by Specialty or upon Record. wPlowd. Com. 185.And as an Executor hath his Election to pay which Creditor he will firſt, that is of equal degree for quality of debt; ſo hath he election to pay and ſatisfie himſelf of what part of the Teſtators Goods he will, yea, though the Teſtators Goods amount in all to no more than his own debt. xOffic. Exec. c. 2. nu. 4.And if there come not to the hands of ſuch Executor Goods ſufficient to pay himſelf, he may (as ſome conceive) have an Action of debt againſt the other Executor where there are more than one. yPlowd. Com. 185. & 13 H. 8. 15. & 11 H. 4. 83. & 12 H. 4. 21. & 20 Ed. 4. 17. & 21 H. 4. 3.Sed Quaere, Whether after he hath once Adminiſtred, ſpecially if he pay himſelf any part of the debt, he have not thereby barred or diſabled his Sute for the reſidue: Otherwiſe he may ſue the Heir for his debt, if he hath not Adminiſtred as Executor; provided that the Bond extend to the Heir, which without expreſs words it doth not, though for the Executor it be otherwiſe; and ſo may ſue the Heir, if the Heir be bound and he have not ſufficient Goods as Executor. z12 H. 4. 21. & Offic. Exec. ubi ſupra.Alwayes obſerving, that although it be commonly ſpoken in the general, That an Executor may firſt pay himſelf, yet it is to be underſtood with this caution or condition, That the debt to him be of equal weight and dignity with the debts to others; for if his Teſtator were indebted to other men by any Statute, Judgement or Recognizance, and to him, whom he maketh Executor, only by Bond or other Specialty, then may he not firſt pay himſelf, that is, by paying of himſelf leave them unpaid whoſe debts are of a higher nature; but if there be ſufficient for ſatisfaction both to them and himſelf, then is it not material which of them is firſt paid.
4. If an Obligee Releaſe to the Executor of the Obligor before Paſch. 1 Jac. B. per Curiam, Roll. Abridg. tit. Execut. A.Probate of the Will, it is a good Releaſe if he Prove the Will afterwards.
If a Debtee die Inteſtate, and the Ordinary commit Adminiſtration to the Debtor, whereby the debt is extinct, [Q.] yet it ſhall Trin. 7 Jac. B. Roll. ibid. lit. G.be Aſſets in his hands as to debts, becauſe the Ordinary hath no power to diſcharge the debt. It was agreed per Curiam.
If Adminiſtration be committed to the Obligor, the ſame doth not extinguiſh the debt; but if the Obligee doth make the Obligor Co. par. 8. 135. Sir John Needham's Caſe.his Executor, the ſame is a Releaſe in Law of the debt, becauſe it is the act of the Obligee himſelf: But if a Woman, who is an Executrix takes the Debtor to Husband, and the Husband dieth, the ſame is no Releaſe of the debt, becauſe it was only ſo ſuſpended during the Coverture.
The Father and Son were joyntly and ſeverally obliged to A. Trin. 12 Jac. C. B. Fryer verſ. Gildring. Moo. Rep. nu. 1174.who made the Sons Wife his Executrix, and deviſed to her all his Goods after his debts and legacies paid, and dies; the Wife Adminiſters; the Son makes his Wife alſo Executrix and dies; the Wife dies Inteſtate, Adminiſtration of the Goods not Adminiſtred of the Obligee was committed to F. who ſues G. the Father, who was the ſurviving joynt-Obligor. And the Court was of Opinion, That the making of the Wife of one of the Obligors Executrix was a ſuſpenſion of the Action during ſuch time as the Executrixſhip continued, as 8 El. 4. 3. And Nichols Juſtice ſaid, That a Perſonal Action once ſuſpended by the act of the party; as here by the act of the Obligee, in making the Wife of one of the Obligors his Executrix, ſhall be Extinct for ever; otherwiſe, if by the act of Law. And it ſeemed to the Court, That by the laſt clauſe of the Deviſe of all his Goods to the Wife after his Debts and Legacies paid, the Obligation paſſed to the Wife. And inaſmuch as that the duty and debt thereof is a thing in action, which by our Law cannot be transferred by a Deviſe, yet it ſhall enure as a Declaration of the intent of the Obligor, that the debt is extinct; and the Civil Law allows a Deviſe of debts due to the Teſtator to be good. And it is averred in the Principal Caſe, That the Debts and Legacies are all paid: whereupon Judgement was given, Quòd quaerens nihil capiat, &c.
The ſuggeſtion was, That whereas one was in debt to J. S. in Mich. 7 Jac. B. R. Flud & Rumſey's Caſe. Yelv. Rep.Thirty pound, who after by deed of Gift in his life-time conveyed all his Goods and Chattels to A. and after made the Plaintiff and B. his Executors, and deviſed that the Plaintiff ſhould pay out of the Thirty pound which he owed him Ten pound to the Defendant for a Legacy; who brought the Plaintiff into the Eccleſiaſtical Court for the ſame, where by the Law the Thirty pound debt is extinct by making the Plaintiff Executor; and ſhewed that he had Proved the Will, &c. And per Curiam, the Defendant ſhall have a Conſultation, foraſmuch as the joynt-Executor hath no remedy to recover the Thirty pound againſt the Plaintiff his Co-Executor; nor can have any Action for the ſame during the Plaintiffs life, yet the debt not extinct, but remains as Aſſets to any other Creditor, as is 8 E. 4. And by the ſame reaſon that one Debtor fait Executor, uncore il paiera Legacies,debt ſhall ſatisfie another debt, it ſhall ſatisfie a Legacy alſo; and much the rather, in regard the expreſs intent of the Teſtator was to that purpoſe, having preciſely limited the Legacy to be paid out of the debt. Quod not a per totam Curiam. And Conſultation was granted accordingly. Yelv. Council for the Plaintiff.
CHAP. XII. The general difference between an Executor and an Adminiſtrator; and wherein they generally agree.
THey differ thus, viz. An Executor is made either by the Teſtator, or by his own Acts; but an Adminiſtrator is appointed only by the Judge. An Executor may appoint an Executor to the firſt Teſtator, ſo cannot an Adminiſtrator; yet a bare and meer Executor, or a naked Executor to whom nothing is bequeathed in the Will, made choice of meerly for his care, and not at all for his profit, cannot bequeath the Teſtators Goods in his Will by Legacies, no more than an Adminiſtrator; for theſe Goods are to be imployed only for the behoof of the Teſtator, in which reſpect ſuch Executor is accountable as well as an Adminiſtrator: But of the Profits and Fruits which happen and ariſe of thoſe Goods which belong to any as Executor he may make his Teſtament, though not of the Goods themſelves; and ſo alſo in ſome caſes may an Adminiſtrator. They agree thus, viz. An Adminiſtrator is entitled to all the Goods and Chattels of the Inteſtate, as well as an Executor to all the Goods and Chattels that belonged to the Teſtator; they are both alike liable to the payment of Debts and Legacies, and they are both accountable. Theſe are the moſt general things wherein they differ and agree. Their more particular agreements and diſagreements are very many according to their diſtinct Beings, Intereſts, and Offices: For which reaſon the Reader for his fuller ſatisfaction in this point is referred to his own Obſervations from the Contents of the ſeveral Chapters of this Teſtamentary Treatiſe.