The Orphans Legacy, Part 2 · Chapter 25
CHAP. XXV. Additionals to the three laſt precedent Chapters, touching how far and wherein Executors may be charged.
1. Executors not chargeable upon a ſimple Contract of the Teſtators.
2. Actions of Account lye not againſt the Executors of the Accountant.
3. Perſonal Actions lye not againſt Executors as Executors.
4. Executors lyable for no more than comes to their hands.
5. The Husband not lyable for his Wifes debts after her deceaſe.
6. In what Caſe the Ordinary may be ſued for the deceaſeds debts.
7. How an Executor may make himſelf chargeable de bonis propriis.
8. The method of proceedings where Execution is de bonis propriis.
9. Executors obliged, though not mentioned in the Obligations.
10. Contracts diſſolved by Obligations after made.
1. VVHerever the Teſtator might wage his Law, there the Action lyeth not againſt the Executor; a41 E. 3. 15. & 15 E. 4. 25. Except for the Kings Debtor by a Quo minus in the Exchequer. Co. lib. 9. fol. 98. So of Accounts except for the King.therefore he is not chargeable upon an Action of Debt upon a ſimple Contract; yea, though ſuch a debt grew for the moſt neceſſary things, as Meat and Drink, which bindeth even an Infant to payment, yet will it not charge the Executor of a man of full Age; ſo that though a common Hoſt or Victualler truſt his Gueſt, he loſeth his debt by his death. bCoke 9. fo. 87. 22 H. 4. 23. But if the ſumm be written on it, they are bound as by a Deed. 28 H. 8. Dyer 23. a.Underſtand theſe things of Contracts only by word; for where the Teſtator in his life-time did put his Seal to any Deed or Writing made upon any ſuch thing, this being then more than a ſimple Contract, taketh from the Vendee his wager of Law, and thereby chargeth his Executor: But if the Teſtator Seal only unto a Tally or the like, with Scotches, expreſſing a debt, this is no ſuch ſpecialty as ſhall charge his Executors. cOffic. Exec. Of Contra…s perſonal.And although no Action of debt lyeth againſt the Executor, as aforeſaid, upon a ſimple Contract, yet may the Creditor in that Caſe maintain an Action upon the Caſe grounded upon the Aſſumption implyed, though not expreſs'd. dS…des Caſe. …ke lib. 4 & lib 9. 87. Pincho… caſe.And thus indeed the Executor is charged in ſubſtance or matter for a ſimple Contract, though not in manner for a debt, but as for breach of promiſe, making recompence in dammages inſtead of the debt.
2. No Action of Account lyeth againſt Executors, (except for the King) that is, againſt the Executors of the Accountant; eCo. ſup. Littl. lib. 2. c. …. Sect. 125.Nor indeed at the Common Law for the Executors of him to whom the Account is to be made; but that is help'd by Statute. fRot. Parl. 50 E. 3. nu. 123. Coo. ibid.For Executors could not have an Action of Account at the Common Law in reſpect of the privity of the Account; but the Stat. W. 2. cap. 23. hath given an Action of Account to Executors; the Stat. of 25 Ed. 3. cap. 5. to Executors of Executors; and the Stat. of 31 Ed. 3. cap. 11. to Adminiſtrators. gCoo. ſup. Littl. lib. 2. cap. 5. Sect. 123.And as an Executor is not chargeable in an Action of Account as aforeſaid; ſo neither is he chargeable in an Action of Detinue nor of Account (except to the King) for the Teſtators detaining and not paying or anſwering things received, or under his charge or cuſtody.
3. Although Executors are in Law underſtood as the Repreſentees of their Teſtators perſons, yet if the Teſtator in his life-time commit any Treſpaſs either upon the Perſon, Lands or Goods of another, no Action lyeth againſt his Executor for the ſame; the reaſon is, Actio perſonalis moritur cum perſona, as hath been formerly declared: Hence it is, that there is no remedy in Law to compel Executors, though they have Aſſets, to make ſatisfaction of a Treſpaſs done by the Teſtator in his life-time; for every Treſpaſs dyeth with the perſon. hDr. & Stu. lib. 2. cap. 10.And therefore alſo it is that no Action lyeth againſt the Executor of him who in his life-time carried away his Corn, Hay, &c. without ſetting forth the Tenth, and died before recovery had againſt him for the ſame, although during his life the treble value were recoverable againſt him in an Action of debt; and this holds true, though the Teſtator were a Leſſee for years, ſo as his State came to his Executors. The Law is the ſame, and upon the foreſaid Reaſon and Rule in Law, if a Leſſee for years commit waſt and die, no Action lyeth againſt his Executor for this waſt. Yet the Law is otherwiſe againſt Executors of Eccleſiaſtical perſons in caſe of Dilapidations; for if a Parſon or Vicar do ſuffer the buildings of his Benefice to go to decay, and dies; his Executors are lyable by the Spiritual Law to the Succeſſors Sute.
4. An Executor ſhall not be charged with, nor in reſpect of any other Goods than thoſe which came to his hands after his taking upon him the charge of the Executorſhip, or by vertue thereof. And although the Executor of an Executor ſhall anſwer others to whom the firſt Teſtator was indebted, as much as he ſhall recover of the Goods of the firſt Teſtator; yet if that Executor did Alienate and Convert to his own uſe all the Goods which did belong to the former Teſtator; in this Caſe no Action doth lye againſt the Executor of the Executor for Recovery of any debts due by the firſt Teſtator. Likewiſe where A. makes B. Executor; and B. makes C. Executor, there the Goods which came from, or were left by A. be not in the hands of C. lyable unto the Judgements had againſt B. Nor on the other ſide, are the Goods of B. in the hands of C. ſubject to the Judgements had againſt A. And the like is to be underſtood of Statutes, Recognizances, and Bonds. Alſo by the Laws of this Land an Executor ſhall not be charged by any bequeſt made by his Teſtator of the Goods that did belong to another man. Indeed by the Civil Law it is otherwiſe, for there it is lawful for the Teſtator to bequeath another mans Goods, which the Heir at the Civil Law muſt buy, or pay the value thereof, if the Owner will not ſell them.
5. If a Woman in debt marry, and dye before the debt be recovered againſt her, though leaving to her Husband much more than the value of the debt, yet is he not lyable in Law to pay one penny of her debts after her deceaſe, becauſe he neither is her Executor nor Adminiſtrator, nor came to her Goods by wrong. iRidl. View of the Civil Law. part. 2. cap. 2. Sect. 4.Inſomuch that a Woman indebted One thouſand pound, and having Leaſes and other immoveable Goods to the value of Three or Four thouſand pound marrying with A. B. and then dye before the debt be recovered againſt her; In this Caſe the Husband ſhall have all the value of his Wifes Eſtate, and yet in Law not be lyable for her debts; during her life he is lyable but not afterwards. kOffic. Exec. c. 17. Sect. 1.This ſeems a defect in the Law, whereby Creditors are at a loſs without remedy; therefore let them ſue in her life-time, for Lex fit vigilantibus non dormientibus.
6. If a man be indebted and dye Inteſtate, or if the Executors of one who hath made a Will refuſe to be Executors, whereby the Goods do come to the hands of the Ordinary, the Creditors may have a Writ of Debt againſt the Ordinary by the Stat. of Weſt. 2. cap. 19. lFitzh. N. B. 120. D.and in this caſe he muſt be ſued by the name of Ordinary. m9 E. 4. 34.But after Adminiſtration committed the Ordinary ſhall not be ſued.n8 Eliz. Dyer 247.
7. An Executor may make himſelf chargeable of his own proper Goods, either by Omiſſion or by Commiſſion; By Omiſſion, as when he being ſued upon an Obligation or the like, there being at the ſame time a Judgement in force againſt him or the deceaſed, and hath but juſt enough in his hands to ſatisfie that Judgement, yet doth not plead this in Bar of the preſent Action, but ſuffers the Plaintiff to recover againſt him; in this Caſe he muſt ſatisfie the ſecond debt out of his own Eſtate: Or by Commiſſion, as when he doth ſomething that is a Waſt in him, and thereupon a Devaſtavit is return'd againſt him, in which caſe he muſt anſwer as much as he waſted out of his own Eſtate; or when a ſute being againſt him, he pleads ſuch a falſe Plea therein as tends to the perpetual Bar of the Plaintiffs Action, and yet being of a thing within his certain knowledge, as when he pleads he is not Executor, nor ever Adminiſtred as Executor, and upon tryal of this iſſue it be found againſt him, that he is a lawful Executor, or Executor in his own wrong; in this Caſe he muſt ſatisfie the debt out of his own Eſtate, whether he hath Aſſets or not, and the Execution had upon the Judgement ſhall be levied upon his own proper Goods. o2 H. 6. 12. Dyer 185. 80. Coke 9. 90. 94. 9 H. 6. 57. 34 H. 6. 45. Broo. Exec. 141. 105. Littl. Broo. Sect. 29. Kelw. 61. Broo. Exec. 164.Likewiſe, if an Executor or Adminiſtrator ſued doth plead to the Action Plenè Adminiſtravit, and upon Tryal it be found againſt him; in this Caſe if he have any of the deceaſeds Goods left in his hands, the Execution ſhall be of them; but if he have none ſuch, then the Execution ſhall be, and he ſhall be charged for ſo much as is found to the value thereof to be in his hands, of his own proper Goods: But where one is ſued upon a Promiſe made by the Teſtator, and he plead Non Aſſumpſit to it; or where he is ſued upon a Deed made by the Teſtator, and he plead Non eſt factum to it, or the like; and theſe iſſues upon Tryal are found againſt him; or when he ſhall confeſs the Action, or ſuffer a Judgement to paſs by default againſt him, or plead any vain Plea; In all theſe Caſes he ſhall not be chargeable of his own Eſtate, neither ſhall the Judgement and Execution in theſe Caſes be de bonis Propriis, but de bonis Teſtatoris only for the Debt, and de bonis Propriis for the Coſts. And yet if an Executor or Adminiſtrator ſhall intreat a Creditor to forbear his debt, until a day, and then promiſe to pay him; by this promiſe he hath made himſelf chargeable as for his own debt, howbeit it ſhall be allowed him upon his account. And if a debt be recovered againſt one who dieth before Execution ſued, leaving Goods ſufficient to ſatisfie; then ſhall not the Land deſcended to the Heir be charged therewith, nor by like reaſon any Land conveyed after Judgement. Or if a Creditor be made Executor by his Debtor, and pay himſelf part out of the Goods, he cannot ſue the Heir for the reſt, becauſe the debt cannot be apportioned, but otherwiſe he may.pOffic. Exec. pag. 142.
8. In all Caſes where a man is charged of his own Eſtate, and the Execution be de bonis Propriis, the Judgement is ever de bonis Teſtatoris. And the method or form of proceedings in ſuch caſes, is this, viz. The firſt Execution is againſt the Executor de bonis Teſtatoris, and not de bonis Propriis: And after a Devaſtavit return'd by the Sheriff, and not before, againſt the Executor or Adminiſtrator, a new Execution is directed to the Sheriff to levy the debt de bonis Teſtatoris; and if there be none of them to be found in his hands, then to levy them de bonis Propriis Executoris vel Adminiſtratoris: Therefore if an Executor or Adminiſtrator be ſued by a Creditor, and the Executor or Adminiſtrator plead a Plenè Adminiſtravit generally, or plead ſpecially that he hath no more but to ſatisfie a Judgement or the like; and upon tryal this iſſue be found againſt him, and that he hath in all, or in part, enough to ſatisfie the debt; In theſe Caſes the Judgement is de bonis Teſtatoris, and thereupon an Execution is as in other caſes to levy the debt de bonis Teſtatoris in the hands of the Executor or Adminiſtrator, and the Coſts de bonis Propriis. And upon the Return of the Sheriff a ſpecial Execution doth iſſue forth to levy the money de bonis Teſtatoris: And if it appear that he hath waſted the Goods, then that he ſhall ſatisfie the Execution de bonis Propriis. And hereupon alſo the Plaintiff may, if he pleaſe, have a Capias againſt the Body, or an Elegit againſt the Lands of the Executor or Adminiſtrator; and other courſe of Proceedings cannot, nor may be had in this Caſe againſt the Executor or Adminiſtrator. qAtworths Caſe. Mich. 38, 39 Eliz. 34 H. 6. 45. 46 Ed. 3. 9. Fitzh. Executor. 9. Coke 5. 32. 8. 134. Dyer 185. 32.But a Sute Commenced againſt an Executor as Adminiſtrator, or againſt an Adminiſtrator as Executor will prove invalid; for neither the one nor the other is chargeable with the payment of Debts or Legacies in ſuch an Erroneous Sute. But where an Action of Debt was brought againſt Two Executors, whereof the one appeared and confeſſed the Action, the other making default; thereupon Judgement was given to Recover againſt them both de bonis Teſtatoris in their hands, and Execution accordingly: And upon this Execution the Sheriff returned a Devaſtavit againſt that Executor only that made default, and hereupon a Scire Facias went out againſt him alone, and afterwards an Execution againſt him alone de bonis Propriis. rBrownl. Rep. 2. part. 24. 33. 50. 76. 78. 116. 2. part. 187. & Dyer 210.And in a Fieri Facias upon a Recovery againſt Executors the Sheriff Returning a Devaſtaverunt, a Writ of Execution iſſues againſt the deceaſeds Goods, and if there were none ſuch, then againſt the Executors Goods.s11 H. 4. 70.
9. If one by Bond or Covenant oblige himſelf to pay ſuch a ſumm of money at ſuch a day, not mentioning his Executors at all, yet is the Executor alſo bound as included in the Name or Perſon of the Teſtator. For if a man bindeth himſelf, his Executors are alſo bound, though they be not named in the Bond; but ſo it is not of the Heir. tCo. ſup. Littl. lib. 3. c. 5. Sect. 8…7. in fin.And in this reſpect the Executor doth more actually repreſent the perſon of the Teſtator, than the Heir doth the perſon of the Anceſtor. So that every Bond or Covenant by the Teſtator made for payment of money or the like, though he doth not Covenant for, nor bind Himſelf and his Executors by expreſs words, reacheth unto his Executor alſo, although he be not named. And yet the Heir is not bound if he be not expreſly named by the word Heir, though there be never ſo great Aſſets or Land deſcended to him. And although Executors do ſo repreſent their Teſtators perſons that they ſtand lyable for their …8 H. 8. Dyer 14. & 22.Debts though not mentioned in the Bonds; yet where a man is bound that he will not ſue upon ſuch a Bond, and dies, if his Executors afterwards ſue, this is held to be no forfeiture of the Bond. uOffic. Exec. p. 156. 27 H. 8. 26.So where one is bound to pay Ten pounds within a monethmonth after Requeſt made to him, and he dies before Requeſt made, it ſufficeth not to make it to the Executor. wIbid. & Manwood. 15, & 26 Eliz.And although in a Judgment had againſt a Teſtator in his life-time, no mention be made of his Executors, yet are they lyable in that caſe; for to debts upon Record, and to debts and dammages already recovered againſt the Teſtator, and to debts by recognizance, the Executor is lyable though he be not named. So likewiſe do Executors ſtand charged with other inferiour debts upon Record, as Iſſues forfeited, Fines impoſed by Juſtices at Weſtminſter, or at Aſſizes, Quarter-Seſſions, Commiſſioners of Sewers, and the like.
10. An Obligation made after a Contract diſſolveth the Contract. So that if a man do make a Contract to pay certain money for a thing bought by him, if he make an Obligation for the money, the Contract is diſcharged, and he ſhall not have an Action of Debt upon the Contract. x9 E. 4. 25. 28 H. 6. 4. 21 H. 7. 5. 1 H. 6. 8. per Bab. 20 H. 6, 23.And therefore if A. and B. do bargain with C. to pay him One hundred pound for Corn or other things, and afterwards C. taketh ſome Writing Obligatory of A. only, and then B. dieth; in this Caſe the Executors of B. are diſcharged, becauſe they ſtood charged only by the Contract, which is extinguiſhed by the ſaid ſpecialty; for ſuch writing Obligatory doth determine or drown any duty by a meer Contract, becauſe Specialty is of a higher nature. And although an Executor not named in the Obligation be notwithſtanding bound, as aforeſaid, ſuppoſing alſo that he that is named in the Teſtament, hath in due form Proved the ſame, yet is he not thereby lyable or obliged to ſatisfie the Creditors of the deceaſed, as one that hath Adminiſtred, unleſs alſo he hath paid the Fees due for the ſame out of the Goods of the deceaſed.
It was Adjuged, that if an Executor pay a debt of his Teſtators with his own proper Goods, he may retain as much in value of Hill. 10 H. 8. Cleydon verſ. Spencer. Moo. Rep. nu. 3.the Teſtators Goods. And 6 Ed. 6. in debt by Shelley verſ. Sackvile Executor of H. Brown, he pleaded Plenè Adminiſtravit, and upon Evidence the Plaintiff ſhewed, That the Defendant had a Farm belonging to the Teſtator in his hands to the value of Two hundred Marks; the Defendant ſhewed how he had expended Two hundred Marks in payment of the Teſtators debts: And the Queſtion upon the Evidence was, whether the Defendants Plea was receivable? And upon Conſultation with the Juſtices of B. R. it ſhall be received to maintain the Iſſue of Fully Adminiſtred for ſo much as it amounted unto, becauſe to make ſuch a Retainer and Deduction, as to alter the property, is one and the ſame.
F. H. Executrix of F. brought Detinue of Goods againſt A. Mich. 15, & 16 Eliz. Hunks verſ. Alborough. Moo. Rep. nu. 242.The Caſe was, F. had made a will in writing, and thereby given many Legacies, and at the end of his Will gave the Reſidue of his Goods to F. his Wife, whom he made his ſole Executrix, for the payment of his debts, and to diſpoſe thereof for the wealth of his Soul. F. the Wife after takes H. to Husband, who made A. the Defendant his Executor, and died; and againſt A. doth F. H. bring Detinue for the Goods of F. And it was adjudged for the Plaintiff, becauſe F. H. doth not here take the Reſidue of the Goods as a Deviſee or Legatee, but as Executrix, by reaſon of theſe words, viz. [for the payment of his debts, and for the wealth of his Soul.] And the Juſtices held, That all works of Charity were within the Intent.