The Orphans Legacy, Part 2 · Chapter 22
CHAP. XXII. Of Actions mantainable by Executors or Adminiſtrators.
1. The ſeveral kinds of Actions maintainable by Executors.
2. An Action Perſonal in the Teſtator is none in the Executor.
3. An Executor may ſue for Rents and the Arrerages thereof; yea, in ſome Caſe where the Teſtator himſelf could not.
4. An Executor Out-Lawed or Attainted may yet have Action.
5. In what Caſe one Co-Executor may Sue another.
6. In what Court Executors ought to Sue.
7. Caſes in Law touching this Subject.
1. REgularly Executors may Charge all others for any Debt or Duty due to the Teſtator, as the Teſtator himſelf might have done; and the ſame Actions that the Teſtator himſelf might have had, the ſame for the moſt part may Executors have alſo: aSheph. Epit. cap. 115.And therefore Executors may have Actions of Account, Actions of Treſpaſs de bonis aſportatis in vita Teſtatoris, Actions of Debt againſt Goalers upon eſcape of Priſoners, Writs of Errour upon the Statute of 27 Eliz. Attaints upon the Stat. of 23 H. 8. Writs of Reſtitution upon the Stat. of 21 H. 8. An Indemnitate Nominis when the Teſtators Goods are taken upon an Out-Lawry againſt another man of his Name; Actions of Covenant, for breach of a Covenant made to the Teſtator; Action upon the Caſe upon the Trover and Converſion of the Teſtators Goods; an Ejectione firmae for an Ejectment of the Teſtator out of a Term; an Action of Debt for Rent behind in the Teſtators life-time; alſo an Action of Debt for the Arrerages of an Annuity due to the Teſtator in his life. bMarch. 329. 13. Pl. 13. Plowd. 181. Coke 11. 90. Weaſt. 2. cap. 22. F. N. B. 117. Dyer 322. Cok. 11. 41. & 6. 80. & 9. 86. St. 9 H. 6. cap. 4. Broo. tit. Exec. 161. Cok. 5. 27. St. 7 H. 4. c. 6. Cok. 4. 50. Broo. tit. Exec. 169. & 122. Coke 9. 85. Action. Dyer 144. 322. 69. St. 12 H. 8. cap. 10. & Brownl. 1. par. 101.Likewiſe an Executor for Goods taken from him that belonged to the Teſtator, or for a Treaſpaſs done upon the Leaſe-Lands, or a diſtraining or an impownding of Goods or Cattel, may maintain Actions of Treſpaſs, or Replevin, or Detinue, even before the Will be Proved. cDyer, in Pl. Com. 201. Caſe of Greisbrook and Fox.Likewiſe, &c.
2. But an Executor ſhall not have an Action for a Perſonal wrong done to the Teſtator, when the wrong done to his Perſon, or that which is his, is of that nature as for which Dammages only are to be Recovered; and therefore an Executor can bring no Action for the beating or wounding the Teſtator, or for a Treſpaſs done to him in his Cattle, Graſs, or Corn, or for a Waſt by his Tenant done in his Lands; for all theſe are but Perſonal Actions, and die with the Teſtators perſon.dSheph. E…. ubi ſup.
3. If one grant a Rent out of his Land for life, Provided that it ſhall not charge his Perſon, and the Rent be behind, and the Grantee dieth; in this Caſe the Grantees Executor may have an Action of Debt for thoſe Arrerages. eCok. ſup. Littl. 146.Likewiſe if any Rent or Arrerages of Rent be due to one upon a Grant of Rent out of any Land to him, or reſervation of Rent upon any Eſtate made by him of Land; in theſe Caſes his Executor may have an Action of Debt for this Rent, or he may diſtrain for it ſo long as the Land chargeable with the Rent, and out of which it doth iſſue, is in his poſſeſſion that ought to pay it, or any claiming by or under him. fCok. 4. 50. & 32 H. 8. c. 37. Note, …hat in all Caſes and Actions brought by Executors as Executors, the Writ ſhall be in the Detinet tantum, although the duty doth accrue in his own time; becauſe the thing recovered ſhall be Aſſets. And ſo it was adjudged Paſch. 7 Jac. in B. R. in the Lord Rich and Franks Caſe. & 43 Eliz. in B. R. in Sparks Caſe.Yea, an Executor in ſome Caſes may have his remedy by Action for the Arrerages of Rent which the Teſtator himſelf in his life-time could not; for if a man grant a Rent-charge out of certain Lands to another for life with a Proviſo in the Deed, that the Grantee ſhall not in any ſort charge the Perſon of the Grantor generally, and the Rent be behind, the Grantee dieth, the Executors of the Grantee ſhall have an Action of Debt againſt the Grantor, and charge his perſon for the Arrerages in the life of the Grantee, notwithſtanding that Proviſo; becauſe the Executors have no other remedy againſt the Grantor for the Arrerages; for Diſtrain they cannot, becauſe the Eſtate in the Rent is determined; and the Proviſo cannot leave the Executors without remedy; g6 Eliz. Dyer, 227. & Cok. ſup. Littl. l. 2. c. 12. Sect. 220.ſo that the word [Proviſo] in this Caſe doth work only a qualification or limitation, not a Condition or a Covenant.
4. One that is Out-Lawed or Attainted in his own perſon, may yet Sue as Executor, becauſe his Suit is in anothers right, viz. the Teſtators. h21 H. 6. 30. & 21 H. 4. 49. 69. & 42 Ed. 3. 13. 14 H. 6. 14, 15.But he that is Excommunicate cannot proceed in Sute as Executor; yet this Excommunication pleaded doth not abate or overthrow the Sute, but makes that the Defendant may ſtay from anſwering his Sute, until the Plaintiff be abſolved and diſcharged from his Excommunication.i3▪ H. 6. 40. Littl. 44. Cok. 81▪ 69. 11 R. 2. Excom. 25.
5. Although one Co-Executor cannot Sue another for poſſeſſion of the Teſtators Goods; for that many Executors to the ſame Teſtator are but as one man, and no man can Sue himſelf; kBroo. tit. Exec. n. 98. & argum. c. debitum de Baptis. Extr. & l. preter. ff. de Tut. & Cur. dat. & Fitzh. tit. Exe. nu. 32.So that when the Teſtator doth make divers Executors, if any one of them doth get the Goods, or the poſſeſſion of the Goods of the Teſtator, the other Executor hath no Action for recovery of the ſame Goods, or any part thereof; for the ſaid Reaſon that one Co-Executor cannot Sue another; nevertheleſs, if the Teſtator make divers Executors, and do bequeath to the one of them the reſidue of his Goods, it is not only lawful for him to whom they are ſo bequeathed to retain the ſame, but alſo if the other Executor enter thereunto, he is ſubject to an Action of Treſpaſs. lBroo. eod. tit. n. 104.Alſo if the Executor of a Co-Executor have any Goods belonging to the firſt Teſtator, the other ſurviving Co-Executor of the firſt Teſtator may have an Action againſt the Executor of that deceaſed Co-Executor for the ſame. mBroo. tit. Exec. nu. 99.Alſo if there be Two Adminiſtrations granted together, he that is the rightful Executor or Adminiſtrator may Sue the wrongful Adminiſtrator for the Goods in his cuſtody.n36 H. 6. cap. 7. Cok. 8. 135.
6. Executors may not Sue for the Goods of their Teſtators in the Court Eccleſiaſtical, but at the Common Law. oSt. 2 R. 3. c. 17.Yet in ſome Caſes an Executor may Sue in the Eccleſiaſtical Court, as touching his Teſtators Goods; as when a man bequeathes Corn growing, or Goods unto one, and a ſtranger will not ſuffer the Executor to perform the Teſtament; for this Legacy he may Sue the Stranger in the Eccleſiaſtical Court. pT. 4 H. 3. referente Fitzh. tit. Prohibit.But if a man take from an Executor Goods bequeathed, for this the Executor muſt Sue his Action of Treſpaſs, and not Sue in the Eccleſiaſtical Court. q32 H. 8. c. 37.Alſo Tenants may be Sued but at the Common Law by Executors or Adminiſtrators for Rents behind, and due to the Teſtator in his life-time, or at the time of his death, and may for the ſame diſtrain the Land charged with the Rent.
7. A Woman and another perſon were made Executors, the Woman took Husband, who did not alter the property of the Paſch. 1 Eliz. B. R. Benl. Rep. Hugh. Abr. tit. Execut. acc. 2.Goods of the Teſtator, and then the Wife died, it was adjudged, That the other Executor might have an Action of Detinue againſt the Husband for the ſame Goods.
Debt brought by an Executor as due to his Teſtator, and Judgment given for him, but before Execution the Plaintiff died Inteſtate, Anderſ. Rep. par. 1. Caſe 49. C. B. vid. 2 R. 3. fol. 8. 10 E. 3. fol. 26. H. 8. fol. 7. H. 28 H. 8. inter Levet & Lewknor.and the Ordinary committed Adminiſtration of the Goods of the firſt Teſtator to another, who Sued out a Scire Facias on the Judgement. All the Juſtices agreed, That the Scire Facias did not lye, For that when the Executor died Inteſtate, the Teſtator was dead Inteſtate alſo, whereby the Judgement and Recovery was void.
Detinue brought by an Executrix againſt her own Husbands Executor; the Caſe was this, One Falconer, who was the Plaintiffs Mich. 15, 16 El. C. B. Hunks & Alberoughs Caſe. Anderſ. Rep. Caſ. 45.firſt Husband, made his Will, gave divers Legacies, and towards the end of his ſaid Will, ſaid, [The Reſidue of all my Goods I Give and Bequeath to Frances my Wife, whom I make my full and whole Executrix of this my Laſt Will and Teſtament, to diſpoſe for the wealth of my Soul, and to pay my Debts] and died indebted to divers perſons, to whom the ſaid Frances paid the ſaid Debts, and all the Legacies, having then Goods in her hand, for which this Action was now brought, ſhe having after married one John Hunks who made the Defendant his Executor, to whoſe hands the ſaid Goods came: Whereupon the Court demurred, and Judgement was, that the Plaintiff ſhould recover; for notwithſtanding the Deviſe, viz. of the Reſidue (as aforeſaid) ſhe hath them not as a Deviſee but as Executrix, becauſe the words of the Deviſe can have no other intendment than that ſhe ſhould enjoy them as Executrix.
Debt brought by the Executrix of J. T. againſt W. B. The Caſe was this; The ſaid W. B. cauſed a Writing to be made and ſealed; Anderſ. Rep. par. 1. Caſe 8. inter Taw and Bury, vid. Dy. … Eliz. and Whelpdales Caſe. 5. Rep. fol. 119. E cont. H. 1 Eliz. Rot. 442.which he delivered to V. C. to deliver to J. T. as his Act and Deed: Accordingly the ſaid V. C. offered the ſame to the ſaid J. T. as the Act and Deed of the ſaid W. B. But he utterly refuſed to receive the ſame as ſuch; notwithſtanding which, the ſaid V. C. there left the ſaid writing; which matter the Defendant pleaded, and ſaid it was none of his Act; whereupon was a demur, and Judgement given for the Plaintiff.
Debt upon an Obligation Conditioned, That if the Defendant in Michael. Term then next enſuing, in the Prerogative Court of Trin. 41 Eliz. Lambe Executor of Drables verſ. Brownwent.the Arch-Biſhop of Canterbury at London, ſhould give to D. his Executors or Adminiſtrators ſuch a Releaſe and Diſcharge from and againſt him and his Children for the receipt of One Hundred Marks, as by the Judge of the Court ſhould be thought meet, That then &c. The Defendant pleaded, that the ſame Term one S. was Judge there, and that the ſaid Judge did not Deviſe or Appoint any Releaſe or Diſcharge, &c. And it was thereupon demurred, and adjudged to be no Plea: For that it is not alleadged that he cauſed a Releaſe to be drawn and tendered to the Judge to be allowed: for it is on his part in diſcharge of his Obligation, to draw ſuch a Releaſe as the Judge ſhould allow: Wherefore it was adjudged for the Plaintiff. 5. Co. 23. b. Mich. 43, 44. C. B. Pl. 42.
Debt as Adminiſtrator to B. upon an Obligation: The Defendant pleaded, That the Plaintiff was an Alien, under the Obedience Paſch. 41. Eliz. Brocks verſ. …illips. Cro. Rep. par. 3.of Philip King of Spain, Enemies to our Soveraign the Queen, and demands Judgement, whether he ſhould be Anſwered; and it was demurred thereupon, and adjudged that he ſhould Anſwer.
Aſſumpſit: By an Executor of a Promiſe made to his Teſtator: The Defendant pleads non Aſſumpſit, and found for the Mi…h. 38, & …9 Eliz. B. R. Edwards verſ. Stapleton. Cro. Rep. par. 3. Pl. 1.Plaintiff, and Judgement for him. And Errour was thereof brought, and Aſſigned, becauſe he did not ſhew in Court the Teſtament in the Declaration mentioned: Whereunto it was ſaid, That it was but default of Form, which is aided after Verdict; but all the Court held it to be matter of ſubſtance; for otherwiſe he doth not entitle himſelf to the Action, without ſhewing the Teſtament. For which cauſe it was Reverſed.
Debt upon a Special Verdict; the Caſe was: A Parſon made a Leaſe for years, rendring Rent at Michaelmas, or within a monethmonth Trin. 39 Eliz. C. B. Caſe Pilkin… verſ. Dal on. Cro. Rep. par, 3. Pl. 1…next after; The Leſſee Enters; the Leſſor dies within ten dayes after Michaelmas: Whether his Executor hath any remedy for this Rent, was the Queſtion, and Ruled that he had not; for the Rent was not due in the Teſtators time, nor until the end of the monethmonth. And in ſuch Caſe it hath been adjudged, that ſuch Rent belongs to the Heir, where it is reſerved by a Lay-perſon, and he dies after Michaelmas, and before the monethmonth ended. Wherefore it was adjudged accordingly. vid. 10. Co. 129.
Action brought by an Adminiſtrator for Rent reſerved upon a Leaſe for years by the Inteſtate; and for Rent arrear in his time the Action was brought; and he ſhews how Adminiſtration was committed by the Arch-Biſhop; but doth not ſay, Quod profert hic in curia Literas Adminiſtrationis; The Defendant pleaded, and found for the Plaintiff. And it was moved in Arreſt of Judgement, Mich. 14 Jac. B. R. Sir John Cutts verſ. Bennet. Cro. Rep. 2. par. Pl. 9.That the not ſhewing the Letters of Adminiſtration was matter of Subſtance, which made the Declaration vicious, and not aided by the Statute of 18 Eliz. or 32 H. 8. by the Verdicts; for that enables the Plaintiff to his Action, and the omiſſion thereof takes from the Defendant the advantage which he might have by demanding Oyer thereof; and &c. The Court reſolved, That it was a matter of Subſtance, which ought to be ſhewn by the Plaintiff to enable him to his Action: And the Defendant ſhall have advantage thereof at any time; wherefore it was adjudged for the Defendant. Vid. 28 H. 6. 31. 16 Ed. 4. 8. 21 H. 6. 23. Plowd. 52.
Errour in a Judgment in C. B. The Errour Aſſigned; for that in Aſſumpſit brought as Executor, although he ſhews himſelf to Paſch. 10 Jac. B. R. Browning verſ. Fuller. Cro. Rep. par. 2. Pl. 1.be Executor to him to whom the Promiſe was made, yet he ſaith not, Teſtamentum hic in Curia prolatum. The Defendant pleaded non Aſſumpſit, and found againſt him, and Judgement accordingly: And this being aſſigned for Errour, was held to be matter of Subſtance, and not of form only; and was therefore Reverſed.
An Executor brings Debt upon an Obligation: The Defendant pleads, non eſt Factum, and found for him. And now the Mich. 7 Jac. B. R. Haywarth verſ. David. Cro. par. 2. Pl. 6.Queſtion was, whether the Plaintiff ſhould pay Coſts upon the New Statute of 4 Jac. which exacts, That in every Action where the Verdict paſſeth for the Defendant the Plaintiff ſhould pay Coſts: but it was reſolved, That this Caſe is not within the intent of the Statute, he being in anothers right, and of matter which lay not in his cognizance; therefore the Law never intended to give Coſts againſt him. And ſo it is upon the Statute of 8 Eliz. where Coſts be given in caſe the Plaintiff is Non-ſuted: As it was ruled in one Fords Caſe, and ſo it was Ruled here. And although Manne ſaid, Coſts had been allowed in the like Caſes, they appointed, that henceforth it ſhould no more be ſo.
It was held, That an Adminiſtrator ſhall have Treſpaſs de bonis Paſch. 37 Eliz. i…t. H…r…is & Van…ge. Moo. Rep. nu. 526.aſportatis in vita Inteſtati by the equity of the Statute of 4 Ed. 3. And an Executors Executor by the Stat. of 25 E. 3.
On a Scire Facias the Caſe was this, Goth was in debt to one Couper Mich. 44, & 45 Eliz. B. R. Yate verſ. Goth. Moo. Rep. nu. 931.who died Inteſtate; his Wife took Adminiſtration, and brought Debt, and had Judgement to recover, and died Inteſtate; Yate the Plaintiff took Adminiſtration of the Goods of Couper non Adminiſtrat. and brought Scire Facias to have Execution on the Judgement: But it was adjudged, that it doth not lie for want of Privity; but it is clear, that he may have a new Action of Debt. And by Popham and Yelverton, if an Adminiſtrator recover Dammages on Treſpaſs de bonis aſportatis in vita Teſtatoris, and then dye Inteſtate, his Adminiſtrator ſhall have Execution thereon; otherwiſe of a Debt recovered which was due to the Inteſtate.
Tenant in Dower makes a Leaſe for years reſerving Rent, and Mich. 3 Ed. 6. Moo. Rep. nu. 25.takes a Husband; the Rent is in arrear, the Husband dies; and it was agreed by the whole Court, That his Executors ſhall have the Rent.
If A. make a Promiſe to B. and after B. die Inteſtate, and Adminiſtration Mich. 15 Char. B. R. int. Goſlyn & Osburn per Curiam. Rolls Abr. tit. Execut. lit. c.of his Goods be committed to C. who after dies alſo Inteſtate, and after Adminiſtration is committed to D. of the Goods of C. In this Caſe D. cannot have an Action on the Promiſe made to B. as Adminiſtrator to G. For he is not Adminiſtrator to B. in that Adminiſtration was not granted to him of the Goods of B. unadminiſtred by C.