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[Reported Year Book, 21 Edw. IV. 23, pl. 8. ] DEBT brought by an executor of an executor in London on an obligation made to the first testator by the Earl of Kent.

Catesby (for the defendant], said that the first testator made him to whom the plaintiff alleges himself to be executor, and one J. B., tishmonger, his executors in London, by the same will ; which said B. survived the other executor, and made A., his wife, executrix. And the said A. took to husband Sir William Monteforde, who are both in life, which matter, &c.

BRIAN, C. J. "You say more than is necessary, for it is enough to say that the first testator made J. B., and the other his executors, and that J. B. survived ; and the rest is against your advantage.” And be did not say why.

sufficient for the payment of his debts ; and that the testator knew a commission was issued against the defendant. Mr. Heald, in reply. The will was made before the commission issued.

THE VICE-CHANCELLOR. [Sir John LEACH.] The question simply is, Whether it is fit the court should now interfere for the protection of this property ? Its interference can prejudice no right. I must consider bankruptcy, notwithstanding the petition to supersede, as evidence of insolvency; and from the will being made long before the commission, though not altered afterwards, I cannot satisfactorily infer, that this testator had a deliberate intention to intrust the management of his estate to an insolvent executor. I think it fit that a receiver should be appointed.

NOTE. — On executors by the tenor, or executors by implication, see Pemberton v. Cony, Cro. El. 164 (1589); Naylor v. Stainsby, 2 Lee, 54 (1754); Boddicott v. Dalzeel, Ib. 294 (1756); Grant v. Leslie, 3 Phillim. 116 (1819); Goods of Fry, 1 Hag. Ecc. 80 (1827); Goods of Oliphant, 1 Sw. & Tr. 525 (1860); Goods of Jones, 2 Sw. & Tr. 155 (1861); Goods of Baylis, L. R. 1 P. & D. 21 (1865); Goods of Punchard, L. R. 2 P. & D. 369 (1872).

On the appointment of executors by substitution or nomination, see Goods of Lighton, 1 Hag. Ecc. 235 (1828); Goods of Cringan, Ib. 548 (1828); Goods of Deichman, 3 Curt. 123 (1842); Hartnell y. Wendell, 60 N. Y. 346 (1875).

An executorship may be subject to a condition, Alice Frances' Case, Dyer, 3 b. in marg. (1581) ; may be limited in time, Pemberton v. Cony, Cro. El. 164 (1589) ; may be limited as to place, Goods of Wallich, 3 Sw. & Tr. 423 (1864); Velho v. Leite, Ib. 456 (1864); Goods of Astor, 1 P. D. 150 (1876). As to whether one can be an executor for a particular chattel or class or classes of chattels, see Anon., Dyer, 3 b. (1528); Austre v. Audley, 1 Roll. Ab. 914 (1620); Rose v. Bartlett, Cro. Car. 292, 293 (1633); Owen v. Owen, 1 Atk. 494, 495 (1738).

And then Catesby prayed to be advised of the parish and ward.

And on another day it was shown for the plaintiff that the plaintiff's testator proved the will before the ordinary, and the said J. B. refused to prove it, whereby his testator administered alone the goods of the deceased, &c.

Collow (for the plaintiff). “It seems to me that when J. B. refuses to prove the said testament before the ordinary, he yill be estopped to administer afterwards, and he will not be charged by way of action as executor, wherefore it seems to me that the action is now maintainable as brought.”

THE JUSTICES. “If twenty are named executors, and one proves the will, it is enough for them all, if the others will agree to it. And the refusal before the ordinary is no estoppel against them from administering afterwards when they please, in our law, and we have regard in this not to the law of Holy Church ; and the other who proves the testament ought strictly [de fine force] to name those who refuse before the ordinary in every action to collect a debt of the testator's, and they can sue with him, or they can be sued. And so although they never administer, their release will be a bar for the entire debt, and so it is clear that he who did not prove the testament, will have the action by survivorship, and that the plaintiff will be barred.” And they also said that if A. makes B. [executor, and B.] proves the will and dies, the ordinary will sequester the goods of the said A. as well as the goods of B., for it is now as if the said A. had died intestate at the beginning. And so if the other executor who refused before the ordinary does not wish to administer, the ordinary can sequester.

Sulyard. Reddendo singula singulis, the first testator died intestate when his executor would not administer; the ordinary then could sequester and commit the administration to whomever he pleased.

And the opinion of all was that the plaintiff would be barred, notwithstanding the refusal of the other, &c. Vide 25 E. III. C. 5; De purveyors, 29 E. III. c. ult."

1 Goods of Smith, 3 Curt. 31 (1842), accord.

“And the court took this difference, when many are named executors, and some of them refuse, and some of them prove the will, those who refuse may afterwards at their pleasure administer, notwithstanding this refusal before the ordinary; but if all refuse before the ordinary, and the ordinary commits administration to another, then they cannot afterwards administer." Hensloe's Case, 9 Co. 36 b, 37 a (1600).

But see Anon, Dyer, 160 b, pl. 42 (1558.)

But it has been determined on great consideration, that if one of two executors renounces, it is not necessary to cite him in on the death of the other executor, before appointing an administrator cum testamento annexo. The renunciation is considered as continuing after the death of the other executor, unless withdrawn. Harrison v. Harrison, 1 Rob. Ecc. 406 (1846); Venables v. East India Co., 2 Ex. 633 (1848.)



[Reported Dyer, 372 a, pl. 8.] WHERE the executor dies before the proving of the will, his executor cannot take upon himself the execution of the first will ; but administration of the goods of the first testator, with the will annexed to it, is to be committed to the executor of the executor, if the residue of the goods of the first testator (the legacies performed) were bequeathed by his last will to the first executor; or to such other person or persons to whom the said residue is bequeathed; otherwise to the next of blood to the first testator, demanding it. And this (ex relatione Doctoris Drury, judge of the Prerogative Court of Canterbury) is the usage and custom of the said court, and agreeable to law (as seemed to him); to which the court gave credit.

Common Pleas. 1587.

(Reported Cro. El. 92.] TRESPASS. It was found by verdict, that Sir Ralph Rowlet being possessed of a term, did make his will, and thereof did make Bacon the Lord Keeper, Catlin Chief-Justice, and others, his executors, and devised the term to Lord Catlin, and died. All the executors writ a letter to Dr. Dale, judge of the Prerogative Court, that they could not attend the execution of the will, and desired him to commit the adıninistration to Henry Goodyer, the next of kin to the testator; and the administration was accordingly granted : but the register entered the cause, for that the executors did defer suscipere onus testamenti. After this, Catlin entered upon the land devised to him, and granted it over. The doubt was, If this grant was good? First, if the letter be a sufficient renunciation? Secondly, If they once refuse, if they, after administration granted, may administer at their pleasure? Dr. Ford declared to the justices, that by the civil law, a renouncing may be as well by matter in fact as by a judicial act, and they may refuse by parol ; and cited a rule in the civil law, Non vult esse hæres, qui ad alium vult transferre hæreditatem ; and, Hæreditas est totum jus quod defunctus habuit. And to the second matter he said, Qui semel repudiaverit hæreditatem, amplius hæreditatem petere non potest; and, Qui semel repudiaverit shall not after be executor, quia transit in contractum ; and that executors cannot refuse for one time, but forever ; but they may pray time to advise of taking upon them the executorship, and it ought to be granted ; and in that case the ordinary is to grant in the mean time letters ad colligendum, &c., but is not to grant adininistration. And for these reasons there being a refusal, the grant made after administration committed, was void ; and so was the opinion of the court.



(Reported 2 Brownl. 58.] The case was this : Two executors were jointly made in a will; one of them releases a debt due to the testator, and after, before the ordipary, refuses to administer; and it was agreed by all the justices that the release was administration, and for that he hath made his election, and then the refusal comes too late, and so is void.

King's BENCH. 1675.

(Reported Freem. K. B. 288.) B. DEVISES a legacy to C., and makes D. his executor, and dies: D. makes E., an infant, his executor, and dies, and administration is committed to F. durante minore ætate of E. C., the legatee, sues F. in the spiritual court for his legacy; and F. moves for a prohibition : but the court denied it; for although an administrator of an executor is not an administrator to the first testator, yet an administrator durante minore ætate is loco executoris, and may be sued, as the executor of an esecutor may.'

Common PLEAS. 1676.

(Reported i Mod. 213.] PARTEN brought an action of debt, in this court, against the testator of Baseden, the now defendant; and had judgment; after whose death, there was a devastavit returned against the defendant, Baseden, bis executor: he appeared to it, and pleaded ; and a special verdict was found to this effect:

1 Contra, Limmer v. Every, ('ro. El. 211, as cited by Lord C. B. Gilbert in Bae. Ab. Executors, (B) 1 (2 vol. p. 381, 5th edit.) ; but that case hardly supports him; and in Leonard's report of the same case under the name of Limoer v. Evorie, 4 Leon. 58, it is said only that such an administrator should sue as administrator of the first testator. S. C. cited Godolphin's Orph. Leg. p. 89; and see Norton v. Molineux, Hob. 246. — SMIRKE'S NOTE.

The defendant, Baseden, was made executor by his will, and dwelt in the same house in which the testator lived and died; and before probate of the will be possessed himself of the goods of the testator, prized them, inventoried them, and sold part of them, and paid a debt, and converted the value of the residue to his own use; afterwards, before the ordinary, he refused, and upon his refusal, administration was committed to the widow of the deceased.

The question was, Whether or no the defendant should be charged to the value of the whole personal estate, or only for as much as he converted ?

Barrell, Serjt., for the plaintiff.

The Court was of opinion, that the committing of administration, in this case, is a mere void act. A great inconvenience would ensue, if men were allowed to administer as far as they would themselves, and then to set up a beggarly administrator; they would pay themselves their own debts, and deliver the residue of the estate to one that is worth nothing, and cheat the rest of the creditors. If an administrator bring an action, it is a good plea to say, That the executor made by the will has administered. Accordingly judgment was given for the plaintiff.


[Reported 3 Add. 273.] WILLIAM THORNTON, the party deceased in this cause, died in the year 1822 ; having made his will, and thereof appointed George Dodd and Charles Parsons, executors. In the month of October, 1822, administration, with the will annexed, issued to Margaret Thornton,

1 “THE LORD CHANCELLOR (REDESDALE] observed, that some of these old cases conld scarcely be supported on principle; they were decided whilst a great jealousy of the ecclesiastical court prevailed. That the meaning of the modern determinations was, that an administration granted after an executor having acted in pais might be repealed by an application to the ecclesiastical court ; not that it was a mere nullity, unless as a protection to the executor. That it was true, an executor having acted, could not discharge himself from liability by such an administration being granted to another: but that a debtor to the fund could not in answer to a suit by such administrator, set up the act in pais of the executor against his renunciation, in order to delay or prevent a recovery by the administrator. That the administration was void, only as a protection to the executor, but in no other sense." - Doyle v. Blake, 2 Sch. & L. 231, 237 (1804).

In Doyle v. Blake, ubi sup., and Rogers v. Frank, 1 Y. & J. 409 (1827), it was held that an executor who had intermeddled with the estate, and had afterwards renounced, was liable to the legatees in equity as executor.

On what constitutes intermeddling, see Long v. Symes, 3 Hag. Ecc. 771 (1832).

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