The Orphans Legacy, Part 2 · Chapter 9
CHAP. IX. Of a Child in the Womb made Executor, and of an Infant-Executor; as alſo of an Executor and Adminiſtrator durante Minoritate.
1. Whether the Child in the Womb may be made Executor.Vid. Dyer, fol. 303, 304. Coke, 6. 67.
2. At what age an Infant-Executor may Adminiſter.
3. What Acts may or may not be done by an Infant-Executor.
4. To whom the Right of Adminiſtration doth belong durante Minoritate.
5. Divers Caſes Reported in the Law, pertinent to this Subject.
1. THe Child in the Womb may be made Executor; inſomuch that when ſuch is ſo appointed, if the Mother bring forth Two or Three Children at that one Burthen, they are all to be admitted Executors. aJaſ. in l. placet. ff. de Liber. & Poſthum. & Mantic. de Conject. ult. vol. lib. 4. tit. 8. nu. 4.The Law is alſo the ſame as to a Legacy given in like manner, which is to be equally divided amongſt them.bPaul. de Caſt. in L. qui filiabus. §. 1. ff. de Legib.
2. Though an Infant how young ſoever he be, may be Executor, cBrook. Abrid. tit. Exec. nu. 115. & tit. Coverture nu. 56.or unborn as aforeſaid; yet the Execution of the Will ſhall not be committed to him until he attain the Age of Seventeen years; for Adminiſtration granted durante Minoritate ceaſes when the Infant-Executor attains to that Age of Seventeen years. dCoke Rep. lib. 5. in Princes Caſe.And if it be a Female-Infant, and married to a man of Seventeen years of Age or more, it is then as if her ſelf were of that Age, and her Husband ſhall have the Execution of the Will, and Adminiſtration thereof. eOffic. of Exe. cap. 18.This limitation of Seventeen years comes in by the Canon, not by the Common Law.
3. Although an Adminiſtration granted durante Minoritate doth as aforeſaid ceaſe when the Infant-Executor doth attain to the Age of Seventeen years, yet betwixt that Age and the Age of Twenty one years, ſuch Executor cannot Aſſent to Legacies; fCoke ubi ſup.howbeit upon ſatisfaction really made he may releaſe a debt due to the Teſtator; gBrook ubi ſupra. & Coke Rep. lib. 5. in Ruſſels Caſe.for although his Actings unconformable to the duty and office of an Executor bind him not, yet ſuch acts as are conformable to ſuch an office done by him during his Minority (that is, till he be of the Age of Twenty one years, for till then the Common Law holds him a Minor) are binding and good in Law.hCoke ibid. Ruſſels Caſe.
4. Until the ſaid Age of Seventen years the Adminiſtration is to be committed to ſome other, as to the Father, or to the Guardian or Tutor of the Child; iOffic. Exec. ubi ſupra.who during ſuch Minority cannot ſell or alienate, ſave in caſes of neceſſity, nor Set a Leaſe for a longer term than the Executors Minority.kCoke ubi ſupra. in Princes Caſe.
5. E. R. Executor of W. R. brought his Action on the Caſe againſt T. P. ſuppoſing that divers of the Teſtators Goods came to the Defendants hands, &c. In which Action the Defendant pleaded Hill. 21 Eliz. B. R. Ruſſel & Frat's Caſe. Anderſ. Rep. Caſe 212.a Releaſe from the Plaintiff: Whereunto was replyed, That the Plaintiff was within Age at the time when he gave ſuch Releaſe, and whether ſuch Releaſe was a bar upon a demur in B. R. was the queſtion? where it was adjudged that it was a void Releaſe. The matter was after removed and brought before the Juſtices in the Exchequer Chamber by a Writ of Errour, where all the Juſtices of the Common Pleas and the Barons of the Exchequer held, That the Judgement in that point was good, and that it was no Errour; for they ſaid that an Infant-Executor cannot Acquit, Releaſe, or Diſcharge a Bond without receiving the money due thereupon; otherwiſe he might through his own folly or ignorance charge himſelf of his own proper Goods, which is not allowable in an Infant to do by a Releaſe or Acquittance without ſome other Act; but if upon a ſingle Bond or Obligation he receive the money, and make an Acquittance or Releaſe, they held that was good, and the Infant ſhould be bound thereby; but by other means the Obligation could not be diſcharged; and they all held, That when a ſingle Obligation is made to an Infant, and he during his Infancy receive the money, and make an Acquittance, he ſhall be bound thereby.
Action is brought againſt the Defendant as Adminiſtrator of J. S. during the Minority of D. Iſſue joyn'd, and found for the Plaintiff. It was alledg'd in Arreſt of Judgment, That the Declaration Trin. 6. Jac. B. R. Croft & Walbanks Caſe. in Yelv. Rep.was not good, becauſe non conſtat whether D. were Seventeen years of Age at the time of the Action commenced, at which time the Defendant-Adminiſtrators Authority is determined; but it was adjudged, That the Plaintiff is not to ſhew or ſet forth that matter, (1.) Becauſe the Plaintiff is a ſtranger to the Defendants power; (2.) Becauſe the Defendant by joyning iſſue hath admitted that his power continues.
Biſs makes Katherine his Wife, and John his Son (aged one year) his Executors. K. Proves the Will alone, and marries the Trin. 6 Jac. B. R. Smi…h & Smiths Caſe. Yelv. Rep.Plaintiff, and they (without the Son) bring Action of Debt as Executors againſt the Defendant, who pleaded in abatement of the Writ, that John was made Executor with Katherine, and that he was yet alive, not named, &c. The Plaintiff replyed, That John was not above one year of Age, that Katherine had Proved the Will, and had Adminiſtration committed to her during his minority, &c. Whereupon Yelv. demurr'd, and adjudg'd for the Defendant, quod Billa caſſetur, for that in truth they are both Executors, and ought to be named in the Action; and albeit that Katherine by the Adminiſtration committed to her durante Minori aetate hath the full power, yet the Infant ought to be named, for that ſhe hath affirmed him to be an Executor.
Debt as Adminiſtrator to A. L. durante minori aetate W. L. the Hill. 40 Eliz. … … verſe. Gaſe…yne. Cro. Rep. par. 3.Executor upon an Obligation, and averrs, that W. L. was within the Age of Twenty one years. The Defendant pleaded an ill Bar, and it was thereupon demurr'd; but becauſe the Court was reſolved (upon Conference with divers Civilians openly in Court) That the power of an Adminiſtrator durante minori aetate, doth ceaſe at the Executors Age of Seventeen years, and that Adminiſtration committed after that Age of the Executor is meerly void, and notwithſtanding this averment here, the Executor might be above the age of Seventeen years, and within the age of Twenty one years: It was therefore adjudged, Quod Quaerens nihil caperet, &c. 5. Co. 29.
Treſpaſs upon a ſpecial Verdict; the Caſe was, Jackson Leſſee for years by ſeveral Leaſes of divers Lands, ſome of them in the Hill. 41 Eliz. Price verſ. Simpſon. Cro. Rep. par. 3.Dioceſs of York, ſome in another Peculiar in the ſame Dioceſs, deviſed all theſe Leaſes to his Son, and made his Daughter within Age his Executrix: the Mother takes Adminiſtration durante minori aetate of the Executrix, in F. the Peculiar where the Teſtator died, ad Commodum & proficuum Executricis; the Adminiſtratrix granted this Term, durante minori aetate of the Executrix, to the Plaintiff: Whether the Grant were good or not, was the principal Queſtion. The Court reſolved, that it was not good; For ſuch an Adminiſtrator hath but a ſpecial property ad proficuum Executoris, but not a general property as another Executor or Adminiſtrator hath; and therefore his ſale of Goods, unleſs they be Bona peritura, or it be for neceſſity for the payment of debts, which he is chargeable to pay, it ſhall not bind: But he may ſue and be ſued, and yet his Authority is but a limited Authority; and therefore like as if Letters ad Colligendum bona Defuncti were granted to one, there he may ſell bona peritura, as Fruit, or the like. (2.) It was moved, whether the Aſſent of an Adminiſtrator, Whether Adminiſtratriae durante minoritate, may Aſſent to a Deviſe of a Term…?durante minori aetate, to the deviſe of a Term, or the Aſſent of the Executor himſelf (during his minority) to ſuch a Deviſe be good? Anderſon ſaid, That an Executor at the Age of Eighteen years may Aſſent; but whether the Aſſent by ſuch an Adminiſtrator be good or not, they doubted. (3.) It was moved, whether Adminiſtration ſhould in this caſe be granted at Two places, viz. the one within the Peculiar, the other by the Arch-Biſhop of York, Ordinary of the Dioceſs; or whether he ſhould have the Prerogative in both, as he had where Bona Notabilia were in divers Dioceſſes. And it was reſolved, That there ſhould be two Letters of Adminiſtration granted; for the Arch-Biſhop ſhall not have any Prerogative here, becauſe this Peculiar was firſt derived out of his Juriſdiction; wherefore &c. 5. Co. 29.
Errour of a Judgement in Debt in C. B. The Errour aſſigned was, becauſe the Plaintiff ſues by an Atturney, where he was an Trin. 38 Eliz. C. B. Bade verſ. Starkes. Cro. Rep. par. 3. pl. 7.Infant, and ought to ſue by Guardian: But becauſe the Action was brought by him as Adminiſtrator, ſo that he ſued in auter droit, Infancy is no impediment unto him, no more than Out-lawrie, and therefore he might well ſue by Atturney; and it was thereupon adjudged for the Defendant, that the firſt Judgement ſhould be affirmed. Note, that if an Infant ſue, and not as Executor, he muſt then ſue by his Guardian; vid. Caſe Bartholomew verſ. Dighton, Hill. 37 Eliz. B. R. in Cro. Rep. part. 1. Pl. 22.
Debt upon an Obligation made to the Teſtator. The Defendant Paſch. 40 Eliz. Knot & Knot Executors of Knot verſ. Barlow. Cro. Rep. par. 3. Pl. 27.Pleaded a Releaſe made by one of the Plaintiffs. The Plaintiff replyes, That this Releaſe was made without any conſideration, and he who Releaſed was within Age at the time of the Releaſe made; and it was thereupon demurred, and adjudged for the Plaintiff, that it was a void Releaſe, being by an Infant without conſideration.
In the Caſe between A. and M. as Adminiſtratrix of J. during Mich. 17 Jac. B. R. Walthall verſ. Aldrich. Cro. Rep. par. 2. Pl. 12. vid. Rep. at large.the minority of L. It was among other things Objected, That the Plaintiffs Declaration was not good, becauſe it is brought againſt her as Adminiſtratrix durante minori aetate of L. And it is not averr'd, that the ſaid L. was yet within the age of Seventeen years, ſed non allocatur; for true it is, that if one brings an Action, and entitles himſelf as Adminiſtrator durante minori aetate of one ſuch, he ought to ſhew that he is yet within the Age of Seventeen years, as Co. 5. fol. 59. Pigots Caſe. For that he is to take Conuzance how long his Authority ſhall continue, and he ought to ſhew it to enable himſelf to the Action: But when he brings the Action againſt one as Adminiſtrator durante minori aetate, there ſuch Plea need not be ſhewn; for ſo long as the other continues his medling, he ſhall be ſued; and the Plaintiffs need not take Conuzance of the age of the other; as &c. And here if her Authority were determined, it ſhould be ſhewn on the Defendants part; therefore the Judgement was affirmed.
Note, it was reſolved by all the Juſtices of England, That the Hill. 26 Eliz. B. R. Ruſſels Caſe. Co. 5. part. Caſe 27. vid. ibid. 28.Releaſe of a Debt or a Duty by an Infant Executor, after Probate made of the Will, is not good; becauſe it ſhould be a Devaſtavit, and charge the Infant of his own Goods; and alſo it ſhould be a wrong which an Infant by his Releaſe cannot do; and alſo becauſe it is not purſuant to the Office of an Executor.
Infant Executor; Adminiſtration was committed durante minori Hill. 39 Eliz. Ford verſ. Glanvile. Moo. Rep. nu. 648.aetate, debt was brought againſt the Adminiſtrator, and then the Infant came of full age; and the Juſtices very much doubted whether the Action did abate.
A Guardian Recovered a debt on an Obligation made to an Infant, Trin. 14 Jac. B. R. White verſ. Hall. Moo. Rep. nu. 1163.the Defendant paid the Principal and Coſts, and prayed that the Guardian might be ordered to acknowledge ſatisfaction. The Court ſaid, That a Guardian, or an Infant, or Executor, may not acknowledge ſatisfaction for more than they receive; and for ſo much they ordered the Guardian to acknowledge ſatisfaction: And made an Order that no Execution ſhould iſſue for the reſidue.
If an Adminiſtration be repealed from one and granted to another, Mi…h. 10 Jac. B. per Curiam. Rol. Abridg. tit. Executor. lit. M.which was only durante minori aetate, and that other bring the firſt Adminiſtrator to account, and after give him a Releaſe, yet the Infant at his full age may compell the firſt Adminiſtrator to account to him again, and the former account to ſuch ſecond Adminiſtrator ſhall not Bar him, for ſuch Adminiſtrators Releaſe is not good, unleſs for ſome ſuch cauſe as for which it ought to be made.
It was by the Chief Juſtice of the Queens Bench demanded of the other Juſtices there Aſſembled upon hearing of Cauſes, If one Hill. 26 Eliz. Anderſ. Rep. Caſ. 164. vid. 16. H. 7. fol. 5, 6.make an Infant his Executor, that Releaſes a Debt due to him as Executor without receiving the ſumm due (which receipt, if it be good, will be a Devaſtavit by the Infant of the Goods in his hands) whether ſuch Releaſe ſhall bind the Infant or not? It was agreed One makes an Infant his Executor, and dies; the Ordinary grants Adminiſtration to a ſtranger during the Infants minority; after when the Infant came of full age, he Proved the Will. Now the Queſt. was, what remedy the Infant ſhould have againſt the Adminiſtrator for the goods, viz. Whether an Action of account, or a Writ of Detinue, or to take his Action againſt the Ordinary himſelf to deliver him the goods? The Opinion of the Juſtices of the Bench was, That he could not have an Action of Account, but a Detinue, or might ſue in the Eccleſiaſtical Court for the goods.—36▪ H. &. C. B. Anderſon Rep. Caſ. 86.by them all, That ſuch Releaſe is void; for an Infant by his own Laches and Folly ſhall not prejudice himſelf. Yet a Feme Covert Executrix may receive money (without her Husband) which was due to her Teſtator, and give an Acquittance for the ſame; and if ſhe gives an Acquittance for debt which cauſes a Devaſtavit, the Releaſe ſhall be good, and the Wife and Husband bound thereby; the reaſon is, for that the Wifes Adminiſtring without her Huſbands Conſent, is and ſhall be accounted the Husbands Folly; but an Infants Folly ſhall not be reckoned to his prejudice: But if one be in debt to the Teſtator upon a ſimple Bond or Obligation, and the Infant Executor receive the money and give Acquittance; in that Caſe the Acquittance is good, becauſe there is a neceſſity for it, for otherwiſe the Obliger is not bound to pay the ſame; and in that Caſe there is no folly in him.