The Orphans Legacy, Part 2 · Chapter 20
CHAP. XX. Touching what Acts may or may not be done by an Executor, as well before as after Probate of the Will.
1. An Executor may before Probate of the Will enter into the houſe of the Heir to ſeize on the Teſtators Goods.
2. A limitation or qualification of that Power.
3. In what Caſe payment muſt be made by or to an Executor, though no Will yet Proved by him.
4. What Actions an Executor before Probate of the Will may or may not maintain.
5. An Executor may before Probate of the Will make an Inventory of the Teſtators Goods and Chattels.
6. Several other things which an Executor may do before he hath Proved the Will.
7. An Executor may retain the Teſtators Goods to ſatisfie his own Debt.
1. THe Power of an Executor dependeth wholly upon the Will and deſignment of the Teſtator. Now an Executor may before his Proving of the Will, ſeize and take into his hands any of the Teſtators Goods; yea, enter into the houſe of the Heir, if not locked, ſo to do, and to take the Specialties of debts; and generally, he may do all things which to the Office of an Executor pertaineth, except only bringing of Actions and proſecution of Sutes; aOffic. Ex. c. 3. §. 1. & 9 Ed. 3. fol. 33. 47. & 7 H. 4. 18.for they cannot Sue till they have the Will under the Seal of the Probat-Office.
2. Although an Executor may after the Teſtators death enter into the houſe where he lived and died, and where his Goods are; and thence take them away even before Probate of the Teſtament, yet underſtand it with this caution, That he muſt do this within convenient and reaſonable time, as within or about thirty dayes next after the Teſtators death; and that alſo in a due and peaceable manner when the doors are open.bLittl. Sect. 69. Plowd. 281. Bro. tit. Execut. 129.
3. An Executor may alſo before Probat of the Will pay debts and receive debts, and make acquittances of debts owing to the Teſtator: Yea, if before ſuch Proving of the Will the day be come for payment upon Bond made by or to the Teſtator, payment muſt be made by or to this Executor, though the Will be not yet Proved, and that upon like pain of forfeiture, as if the Will were Proved. cOffic. Ex. ubi ſup. Coke 6. 18. 9. 38. 5. 27. Plowd. 280. 9 Ed. 4. 47. 36 H. 6. 7. Fitzh. tit. Admin. 2. 6. & Brow. 1. part. 76, 77. 73. 53.Alſo an Executor may before Probate give or ſell any of the Goods and Chattels of the Teſtator not otherwiſe bequeathed in the Wiil, and for the ſame may maintain his Action.
4. For an Executor for Goods of the Teſtator taken from him, or for a Treſpaſs done upon the Leaſe Lands, or for a diſtraining or impownding of the Goods or Cattel, may maintain Actions of Treſpaſs or Replevin or Detinue even before the Will be Proved, becauſe theſe Actions ariſe out of the Executors own poſſeſſion. dDyer in Plo. Com. 281. Caſe of Greisbr. & Fox.But an Action of Debt or the like contracted by the Teſtator he cannot maintain before the Will be Proved, for therein he muſt ſhew forth the Will Proved under the Court-Seal. And as at the Common Law, If a man be bound to another in a certain ſumm of money to pay at a certain day, and the Obligee before the ſaid day Releaſe unto the Obligor all Actions, he is barred of the duty for ever, though he could not have an Action at the time of the Releaſe made; even ſo may an Executor before Probate of the Teſtament Releaſe an Action. eTrin. 2 Jac. in Com. Ban. inter Middleton & Rinnot. 18 H. 6. 23. b. Pl. Com. 277, 278. in Greisbrooks Caſe. per Weſton. vid. Coke, lib. 3. cap. 8. Sect. 512.And the Reaſon of both is, becauſe the right of Action is in them, for that the Debt is a thing conſiſting meerly in Action; and therefore though no Action as yet then lieth for the Debt, yet becauſe the Right of Action is in them, the Releaſe of all Actions is a diſcharge of the Debt it ſelf.
5. Another thing that an Executor may do before the Proving of the Will, and which is expedient for him, though as yet not ſo neceſſary, is the making of an Inventory; for the Executor had need be cautious that he do not intermeddle with, or Adminiſter the Teſtators Goods until he hath made an Inventory; for although the Act of an Executor is ſaid to hold in Law before the Proving of the Will, fPlowd. in Caſ. inter Greisbrook & Fox.and the making of an Inventory; gLynwood in C. Statut. §. inventarium. tit. de Teſta. lib. 3. Conſt. Prov. Cant. verb. prius.yet for intermeddling with the Teſtators goods as Executor before he hath made an Inventory, or cauſed the ſame to be made, though not exhibited, he was according to Law puniſhable; hLegat in Libertatem de Execut. Teſtam.unleſs it were for doing ſuch things as could not conveniently be deferred till the Inventory were made, as concerning things relating to the Funerals, or diſpoſing ſuch things as Servando ſervari non poſſint, and ſuch like. iJo. de Atho. in dict. Legat in Libertatem. verb. inventarium. dict. C. Statut. §. inhibemus. in Text. & in Gloſs,Beſides, if he make not an Inventory and yet Adminiſter, he may be compelled to diſcharge out of his own purſe more Debts and Legacies than happily the Teſtators Goods and Chattels did amount to.
6. There are ſeveral other things which an Executor may do before he hath Proved the Will; and he may alſo keep any of the Goods of the Teſtator, ſo as he pay out of his own money the value thereof in Adminiſtration of the Teſtators Eſtate; kDyer 2.he may alſo if he want money to pay Funerals, or diſcharge Debts, ſell any of the Chattels Real or Perſonal, whereof the Teſtator died poſſeſſed, yea, though that thing were particularly bequeathed. As if a man be poſſeſſed of a Term of years, and bequeath the ſame to A. B. the Executor may notwithſtanding the bequeſt at any time before his Aſſent given to the Legacy, if he have▪ not Aſſets ſufficient to pay the Debts, ſell this Term of years, and the Legatee is remedileſs. So alſo he may do, although there be Aſſets enough beſides to pay the Debts; but in ſuch Caſe the Legatee may not be without all relief in a Court of Equity againſt the Executor as to Dammages; but the Sale is unavoidable.lPlowd. 543, 544.
Leſſee for years Deviſed his Term to one whom he made his Executor, and died: The Deviſee entered before any Probate of the Will, and held and enjoyed the Land for a year and more, without Proving of the Will, and then died; it was a Queſtion, whether his Executor, or in Caſe he died Inteſtate, his Adminiſtrator ſhould have the Term? It was the Opinion of the Court, That the Term was lawfully ſetled in the Executor by his Entry; and it was a good Execution of the Deviſe, without any Probate made of the Will. Mich. 22 Eliz. Dyer, 367.
Letters of Adminiſtration do relate to the time of the death of the Inteſtate, and not to the time of the granting of them; and Mich. 1652. B. R. Long & Hobbs Caſe. Stiles 341.therefore an Adminiſtrator may have an Action of Treſpaſs, or a Trover and Converſion for Goods, taken by one before the Letters granted to him; otherwiſe there would be no Remedy of the wrong done.
Executors took the Teſtators Goods before they had Proved the Will; another took Letters of Adminiſtration, and takes the Goods out of the Executors hands before the Will was Proved: Paſch. 42 Eliz. Anderſ. Rep. par. 2. Caſe. 83.The Executors bring their Action of Treſpaſs againſt him who took the Goods; the Court held that it did well lie; for after the Teſtators death the Goods belong to the Executors, and to none other; and an Adminiſtration to intermeddle with theſe Goods is utterly void; for that they have nothing to do with thoſe Goods as Adminiſtrator when there is an Executor.
7. An Executor may retain Goods in ſatisfaction of a Debt due to him from the Teſtator, and the Retainer ſhall be held good. mPlow. Com. 184.Action of Debt was brought againſt the Executors of A. B. who pleaded that they had fully Adminiſtred; the Plaintiff gave Evidence that they had Goods in their hands; the Defendant ſhewed, that the Goods were pledged by their Teſtator, and that they had Redeemed them with their own money to the full value; and that for the reſt of the Goods, that they had paid to the Teſtator as much for them as they were worth: It was holden, That the ſame did well maintain their Iſſue of Fully Adminiſtred; for that an Executor ſhall by way of Retainer be recompenced that which he hath paid. n6 H. 8. Dyer 2. 20 H. 7. Kellway 58.But an Executor of his own wrong cannot retain Goods, but they ſhall be Aſſets in his hands. oCoo. 5. part 30. Coulters Caſe.The like we have in another Caſe. Two men were poſſeſſed of Goods as Executors; the one of them took the goods into his hands, and diſpoſed of divers ſumms of money in pios uſus, & pro anima Teſtatoris, which ſumms did amount to more than the Goods of the Teſtator were worth; and he did retain the Teſtators Goods as his own proper goods, converting the ſame to his own uſe, whereof he died poſſeſſed, after he had made his Will, and therein Executors. The ſurviving Executor brought Detinue of the ſaid Goods againſt the Executor to the value of One hundred pound, upon which the Defendant pleaded the matter Supra. It was adjudged, That the Retainer was Lawfull; and that thoſe Goods now in the hands of the Executors, were not Aſſets or Goods of the firſt Teſtator in the Executors hands. pMich. 2 Eliz. Dyer, 187.Or ſuppoſe a Teſtator be indebted to a man by Bond in Twenty pound, if his Executors make a ſufficient Obligation to the Teſtators Creditor, and ſufficiently diſcharge the Teſtator, without fraud or covin, they may retain the Goods for ſo much, and the Goods retained ſhall not be Aſſets in their hands, yea, though they have appointed ulteriorem diem for the payment of the money.qPaſch. 30 El. in C. B. Stamp & Hutchins Caſe. Leon. 111, 112.
S. Brought Debt againſt S. as Executor to B. who pleaded fully Adminiſtred, &c. to which the Plaintiff replyed, That he had Goods of the Teſtators to the value of Two hundred Marks, Shelley verſ. Sackvile. Anderſ. Rep. par. 1. Caſe 50. vid. 20 H. 7. fol. 2. 4, 5. M. 6 E. 6.which the other confeſs'd and gave in Evidence, that he had paid as much of his own proper money for the Teſtators Debts, and ſhew'd how; the Judges doubted whether he could give the matter in Evidence, and deſired the Opinion of the Juſtices of B. R. thereon, who held, That he might give it in Evidence; whereupon the Juſtices proceeded accordingly: For it was agreed, Hill. 10 H. 8. That the property of the deceaſeds Goods by payment of the Teſtators Debts to the value of the ſaid Goods, retained to the amount in value, was altered, and the property being altered to the uſe of the deceaſed, is a juſt Adminiſtration.