The Orphans Legacy, Part 2 · Chapter 17 – Chapter 18
CHAP. XVII. Of the Executors Intereſt and Poſſeſſion; and how it differs from that which he hath in his own proper Goods.
1. What may be ſaid to be in the Executors Actual Poſſeſſion, or not.
2. How the Executors Intereſt in the Teſtators Goods differs from that which he hath in his own.
3. Whether an Executor may by Will bequeath the Goods he hath as Executor.
4. Whether the Adminiſtrator of an Inteſtate Executor may intermeddle with the Goods of the firſt Teſtator.
5. How Teſtators and Executors are Correlatives as to Chattels.
1. IN Chattels Perſonal the Executor hath ſuch an Actual Poſſeſſion preſently upon the Teſtators death, though never ſo far diſtant from him, and without any laying his hands actually on them, as that he may maintain an Action of Treſpaſs againſt any taking them away or ſpoiling them, though he or any for him never came near them; aOffic. Ex. cap. 10. in pri….but Chattels Real, as Leaſes for years, are not in his poſſeſſion, till himſelf or ſome for him actually enter thereupon. bPerk. 6. 1.But a Leaſe for years of Tithes, be the Executor never ſo far diſtant from them at the time of the Teſtators death, ſhall be in his actual poſſeſſion inſtantly upon the ſetting out thereof, ſo as he may maintain an Action of Treſpaſs againſt any that ſhall take the ſame ſo ſet out, though he, nor any for him did never actually lay their hands thereon. cA. 5 E. 3. 17. & 21 H. 6. 43.But in Glebe Lands into which Entry may be made, the Caſe may be otherwiſe. Nor are Debts accounted to be in the Executors hands till recovered: So likewiſe Arrears of Rents, yea, of Inheritance behind in the Teſtators life-time; for Executors are qualified to receive them alſo.
2. An Executors Intereſt, as Executor, is only in his Teſtators Right; dCoke lib. 9. 83. b. in Pinchons Caſe.his Intereſt in his own Goods is abſolute and proper; therefore, though the Lord of a Villain might take all the Villains own Goods, yet he might not take the Goods he had as Executor. eLittl. tit. Villenage, 41, 42.And from hence ſome have been of Opinion, that an Executor granting all his Goods, theſe are excepted which he hath as Executor, except the Executor (according to the Lord Dyer) who is the Grantor, be named Executor in the Grant.fOffic. Ex. cap. 7.
3. Nor can the Executor by Will bequeath the Goods he hath as Executor, without a precedent alteration of the property thereof, and with a Reconveyance thereof back to himſelf again.
4. An Executor dying Inteſtate, his Adminiſtrator cannot meddle with thoſe Goods the Inteſtate Executor had as Executor, but thereof Adminiſtration muſt be granted. As De Bonis non Adminiſtratis to the next of Kin of the Inteſtate Executors Teſtator. For thè reaſon aforeſaid, the Goods which a man hath as Executor, are not liable for the Executors debts, and therefore cannot be taken in Execution for his own proper debts. gPlowd. Com. 52. 5. inter Brans by & Grantham, p. 20 Eliz.For the ſame reaſon alſo the Goods which a Woman hath as Executrix, are not deveſted out of her into her Husband by marriage, nor can he have them after her death without being his Wifes Executor. Upon the ſame ground it is (as was but now hinted) that the Goods and Chattels of the firſt Teſtator in the hands of his Executors Executor (no alteration of the property thereof being made by his Executor) ſhall not be liable for ſatisfaction of the debts of his ſaid Executor: As thus, ſuppoſe A. makes B. his Executor and dies; B. makes C. his Executor and dies; Now if B. made no alteration of the property of the Goods of A. but meerly left them to C. In this Caſe the Goods which ſo came to B. as Executor to A. and ſo from B. to C. ſhall not be liable in Law to pay the debts of B. the immediate Executor of A.
5. There is a further diſcovery of an Executors Intereſt as to Chattels Real, wherein Teſtators and Executors are as Correlatives; for if a man make a Leaſe for life to one, the remainder to his Executors for twenty one years, the term of years ſhall immediately veſt in the Leſſee; for even as Anceſtors and Heirs are Correlatives as to Inheritance; ſo are Teſtators and Executors Correlatives as to Chattels: And therefore if a Leaſe for life be made to the Teſtator, the Remainder to his Executors for years, the Chattel ſhall veſt in the Leſſee himſelf, as well as if it had been limited to him and his Executors. And thus a Remainder of years limited to the Executors of a Leſſee, ſhall preſently veſt in the perſon of the Leſſee himſelf, becauſe Teſtators and Executors are Correlatives as to Chattels.
CHAP. XVIII. Of the Executors Right in oppoſition to the Heirs in reference to Mortgages.
1. How the Executor doth more repreſent the perſon of the Teſtator, than the Heir doth the perſon of his Anceſtor.
2. The difference in point of payment, whether to the Heir or to the Executor in Caſe of Mortgages.
1. IF the Feoffee in Mortgage before the day of payment which ſhould be made to him make his Executors and die, and his Heir entereth into the Land as he ought; in this Caſe the Feoffor ought to pay the money at the day appointed to the Executors, and not to the Heir of the Feoffee; unleſs the condition were, that the Feoffor pay to the Feoffee or to his Heirs ſuch a ſumm of money at ſuch a day. aLittl. Inſt. lib. 3. cap. 5. Sect. 339.Here note, That the Executors do more repreſent the perſon of the Teſtator than the Heir doth the perſon of the Anceſtor; for though the Executor be not named, yet the Law appoints him to receive the money, but not ſo the Heir, unleſs he be named. bCoke, ibid.Here alſo note, That if the Condition upon the Mortgage be to pay the Mortgagee or his Heirs the money, and before the day of payment the Mortgagee dieth, the Feoffor cannot in this Caſe pay the money to the Executors of the Mortgagee. cIbid.But if the Condition be to pay the money to the Feoffee, his Heirs or Executors, then the Feoffor hath election to pay it either to the Heir or Executors.dIbid.
2. If a man make a Feoffment in Fee, upon Condition, that the Feoffee ſhall pay to the Feoffor, his Heirs or Aſſigns, Twenty pound at ſuch a day, and before the day the Feoffor makes his Executors and dieth, the Feoffee may as aforeſaid pay the ſame either to the Heir or to the Executors, for they are the Feoffors Aſſigns to this intent: But if a man make a Feoffment in Fee, upon Condition, that if the Feoffor pay to the Feoffee, his Heirs or Aſſigns, Twenty pounds before ſuch a Feaſt, and before the Feaſt the Feoffee maketh his Executors and dieth, the Feoffor ought to pay the money to the Heir, and not to the Executors, for the Executors in this Caſe are no Aſſigns in Law. And the reaſon of this difference is, for that in the firſt Caſe the Law muſt of neceſſity find out Aſſigns, becauſe there cannot be any Aſſignes in Deed, for the Feoffor hath but a bare Condition, and no Eſtate in the Land which he can aſſign over; but in the other Caſe the Feoffee hath an Eſtate in the Land, which he may Aſſign over: And where there may be Aſſignes in Deed, the Law ſhall never ſeek out or appoint Aſſignes in Law.eCoke, ibid.