The Orphans Legacy, Part 2 · Chapter 16
CHAP. XVI. Of the Indiviſibility of the right and intereſt of Co-Executors.
Their Indiviſibility
1. In point of Power and Authority.
2. In point of Intereſt and Poſſeſſion.
3. In Caſe of Plaintiffs and Defendants.
1. WHere there are more Executors than One, or Joynt-Executors to the ſame Teſtator, One of them cannot give nor releaſe his Intereſt to the other; or if he doth, it is void; and he who ſo releaſeth, ſhall ſtill have as much Intereſt as he to whom he releaſed, becauſe each had the whole before. a9 E. 4. 12. 14. 21 E. 2. 13. … H. 8. 21, 22.Therefore if one Executor releaſe but his part of a debt, it hath been held that the whole is diſcharged. But if one Executor alone ſell Goods of the Teſtator, he alone may maintain an Action of debt for the money. b38 E. 3. f. 9.So if Goods be taken out of the poſſeſſion of one Executor, he alone may maintain an Action for the ſame, and that without naming himſelf Executor. cOffic. Ex. c. 9.Alſo, one Executor not joyning in ſuit with another, may any time before judgment releaſe, but after Judgement he cannot, becauſe then it is altered in nature, and turn'd into Rem Judicatam. And though many Executors to one and the ſame Teſtator make but one Executor, yet the devaſtation, waſt, or miſdoing of one ſhall not charge the reſt, nor make their Goods lyable for recompence; dBook of Entries, and ſo held in An. 12 H. 7. Lib. Entr. f. 327. & Kelw. Rep. fo. 23. & 11 H. 6. 38. & a. 4 Eliz. Dyer 210. & P. 4 H. 8. Rot. 303. Tr. 34▪ El. Paſ. 36 Eliz.but himſelf ſhall anſwer for it with his own Goods, yet no further than the value of the Teſtators Goods ſo waſted or miſadminiſtred.
2. If one of the Executors where there be Two or more, grant his part of the Teſtators Goods, all paſſeth, and nothing is left to the other; for that each hath the whole, and there be no Parts or Two have a Leaſe for years as joynt-Executors, if one of them alien the whole, it ſhall bind the other; for each hath an entire power to diſpoſe the whole, both being poſſeſſed in right of the Teſtator. 37 Eliz. B. R. inter Pannel & Fen. Agreed and Adjudg'd. Roll. Abr. tit. Execut. lit. O.Moities between Executors; Thus, if an Horſe come to four Executors, each hath a Horſe, and yet all four have but one. Alſo, though a Leaſe for One thouſand Years of One thouſand Acres of Land come to Two Executors or more, no partition or diviſion can be made between them, becauſe it is not between them as between joynt-Leſſees of Land, where each hath but a Moitie in Intereſt, though poſſeſſion of and through the whole; but among Executors each hath the whole; and therefore if he grants his part, he grants the whole; yet one Executor may demiſe or grant the Moitie of the Land for the whole term, and ſo may the other: and this way they may ſettle a Moitie for each in ſome Third perſon intruſted for them; but one Executor cannot make a Leaſe to the other of any part, becauſe he had the whole before; nor can one of them Sue the other as Executor, unleſs the Teſtator deviſe to one of his Executors all his Goods, after ſuch Debts and Legacies paid and ſatisfied; for in ſuch Caſe after ſatisfaction thereof that Executor may take the remainder of the Goods, and maintain an Action of Treſpaſs againſt the other if he take them from him, and conſequently an Action of Detinue if he keep or detain them; but this he may do not as Executor, but as Legatee.
3. Where there are divers Executors, they are all but as one perſon, and therefore cannot plead ſeveral pleas being ſued; e37. H. 6. 17. 9 H. 6. fol 44. 38 E. 3. 9 Brook. Exec. 13. 20, 21.all of them repreſent the Teſtators perſon, and they muſt all joyn in Suits as Plaintiffs, and be joyned as Defendants, or at leaſt ſo many of them as have Adminiſtred; therefore one Executor ſued, if he plead that there is another Executor not ſued, muſt alſo plead that that other hath Adminiſtred. f9 H. 6. 44. Bro. 13. 33 H. 6. 38. Bro. 20,Thus Executors, though never ſo many repreſent the perſon of the Teſtator, as one perſon. g9 Ed. 3. cap. 3.Therefore all of them ſhall have but one Eſſoyn, neither before appearance nor after, becauſe their Teſtator himſelf, whoſe perſon they repreſent, could have no more. And therefore where Executors as Defendants have appeared, if any one of them will confeſs the Action, this binds and concludes the reſt; but if one will plead one Plea and the other another, ſome are of Opinion, that that ſhall be received which is beſt for the Teſtators Eſtate. So where they Sue, ſuch as will not proſecute ſhall be ſevered, and the reſt without them may proceed. hOffic. Ex. c. 9.It is evident by what hath been ſaid, That Two Joynt-Executors being Sued cannot plead two diſtinct Pleas, becauſe they both repreſent but one perſon, viz. the Teſtator, who could have but one only Plea. i37 H. 6. 30. & 7 H. 4. 13.Yet others ſay, they ſhall have ſeveral pleas, and the moſt peremptory ſhall be tryed. k8 Ed. 4. 24. Execut. 31.And if any one of Joynt-Executors Plaintiffs dies, the Writ abates, though he ſo dying was for non-appearance on ſummons before ſevered; and ſo it is, if one of the Co-Executors Defendants dies. Yea, if a Creditor Sue A. B. C. as Executors, where only A. and B. are Executors, even there by the death of C. the Writ abates. Alſo if a man make Three Executors whereof Two refuſe the Adminiſtration, yet they ſhall be Executors by the Will, and may Adminiſter when they pleaſe, and an Action ought to be in all their Names, otherwiſe the Writ ſhall abate.lFulb. Paral. part. 2. Diolog. 3. fol. 33.