The Orphans Legacy, Part 2 · Chapter 7
CHAP. VII. Of an Executors Executor.
1. That the Executor of a ſole Executor is Executor to the firſt Teſtator.
2. That an Executors Executor cannot perform a Truſt committed by the firſt Teſtator.
3. An Executors Executor hath nothing to do with the firſt Teſtators Goods, where there is a ſurviving joynt-Executor.
4. In what Caſe an Executors Executor ſhall have to do with the firſt Teſtators Goods, when the ſurviving joynt-Executor ſhall not meddle therewith.
1. AN Executors Executor, where there is no joynt-Executor, is Executor to the firſt Teſtator as he is to the ſecond, and conſequently hath a right to all the profit, and is liable to all the charge that the firſt Executor had or was ſubject unto; yet with this caution and difference, that the one Teſtators Goods ſhall not ſtand charged for the other Teſtators debts, but each for his own reſpectively. aStat. 25 E. 3. cap. 4. & Coke 5. 9 & Plow. 86. & 84 H. 6. 14.And if in ſuch caſe the Executors Executor aſſume the Adminiſtration of the firſt Teſtators Goods, he cannot afterwards refuſe the Adminiſtration of the Goods of the later Teſtator; but he may accept the later, yet refuſe the former; but not è contra. bTrin. 17 Jac. Com. B. Wolf and Heydens Caſe.Alſo an Executors Executor ſhall not be admitted to Adminiſter the Goods of the firſt Teſtator where the firſt Executor (who was his Teſtator) refuſed to Adminiſter, or died before Probate, cDyer 372.unleſs all the reſidue of the firſt Teſtators Goods, after the debts paid, be given in the Will to the firſt Executor.dAdjudged in Hill. 9. Char. in Dens Caſe & Brownl. 1. par. 9….
2. Where a ſpecial truſt is by Will recommended to an Executor, as to ſell Lands, &c. This being not performed in his life-time, ſhall not be performable by his Executor after his death. eOffic. Exec. cap. 20.Contrariwiſe it is of an intereſt, as to take the profits of Lands for certain years towards payment of Debts and Legacies, or for recovery of Rents of Inheritance left unpaid in the Teſtators life-time.
3. If Two Executors be appointed, whereof one maketh his Teſtament, wherein he nameth his Executor and dieth, his joynt-Executor ſurviving; in this Caſe the Executor of the Executor is not to be joyned with the ſaid joynt-Executor ſurviving, neither in the Execution of the Will, nor in Suits or Actions. fBrook. Abrid. tit. Execut. nu. 92. 160.And if ſuch Executor of the Executor have any Goods which did belong to the firſt Teſtator, the ſurviving Executor of the ſame firſt Teſtator may have an Action againſt ſuch Executors Executor for the ſame. gIbid. nu. 9….Inſomuch, that if the ſurviving Executor doth afterward die inteſtate, yet may not the Executors Executor meddle with the Goods of the former Teſtator: for the power of the Executor who died firſt was determined by his death, the other then ſurviving; hIbid. nu. 149.And the Judge in this Caſe may commit the Adminiſtration both of the ſurviving Executor who died afterwards inteſtate, and of the Goods of the former Teſtator not before Adminiſtred. And if the Executor of the Executor who died firſt, meddle with the Goods of the firſt Teſtator, he may be ſued by the Creditors of the firſt Teſtator, as Executor in his own wrong: iIbid. nu. 2…, & 99.But where there is no joynt-Executor, there moſt things which concern immediate Executors, extend alſo to the mediate or more remote Executors; that the mediate Executor in the fourth, fifth, or further degree ſtands in like manner Executor to the firſt Teſtator, as the firſt and immediate Executor, and may ſue or be ſued as the former.kOffic. Exec. cap. 20.
4. Suppoſe Two Executors, whereof One refuſes to Prove the Will and Adminiſter; the other Proves it, Adminiſters and dies Teſtate; In this Caſe the Executor of that joynt-Executor that ſo Proved the Will, ſhall be the firſt Teſtators Executor, and the ſurviving Executor ſo formerly refuſing ſhall not now be admitted to intermeddle therewith, becauſe his Election determined at his Co-Executors death. lDyer 160.But it is otherwiſe where the ſurviving Executor hath accepted the Executorſhip, for in that Caſe he ſhall have the ſole diſpoſing of the Eſtate, and the Co-Executors Executor is not to intermeddle therewith, but to ſurrender to the other what Goods belonging to the firſt Teſtator happen to be in his Cuſtody.
Errour, the Errour aſſign'd was, That W. E. had brought debt upon an Obligation by the name of W. E. Adminiſtr. Bonorum & Hill. 33 Eliz. B. R. Limnex, verſ. Every. Cro. par. 3.Catallorum A. E. durante minori aetate of J. E. Executor of the ſaid A. E. Executor of R. E. and demands a Debt upon an Obligation of Twenty nine pound made to the ſaid R. E. the firſt Teſtator, whereas he could not bring an Action by this Name, but as Adminiſtrator of R. E. But it was ſaid, that Adminiſtration of the Goods of R. E. being committed to him by this name, omnium Bonorum, &c. A. E. it may well be committed to him by this Name; eſpecially when A. E. did not die Inteſtate, but made an Executor; 10 Ed. 4. 1. That by the grant of the Adminiſtration of the Goods of the Executor, Adminiſtration is by it granted of all the Goods of the firſt Teſtator; 27 H. 8. 7. Curia, Contra clearly. For by this Adminiſtration committed, he hath no Authority to meddle with the Goods of the firſt Teſtator; and for this cauſe the Judgement was reverſed.
Debt againſt the Executor of an Executor. The Defendant pleaded, that the Executors Teſtator had fully Adminiſtred, and Paſch. 3 Eliz. Moo. Rep. nu. 8.that he had nothing in his hands at the time of his death; and it was found that he had Aſſets. Whereupon a Fieri facias iſſued to the Sheriff, and he returned, that the Defendant had nothing. And it was held, that the Sheriff ſhould be amerced, for he ſhould have ſtopt making ſuch Return: And that it ſhould be no prejudice to the Plaintiff, for that the Debt ſhall be charged ſo long as the Record remains in force not Reverſed by Errour nor Attaint. And if he hath no Goods of the Teſtators, he ſhall be charged of his own proper Goods, For that when he pleaded that the firſt Teſtator had fully Adminiſtred, he did not ſay that Aſſets did not come to his hands after his Teſtators death.