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8. Executors appointed to fell land cannot retain this land and pay fo much as it is worth, and as much as teftator appointed up on the fale. For it is both against the words of the will, and the intention of the teftator. Jenk. 189. pl. 88.

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of goods the executors have an interest. Per Frowike. Kuw. 58. b.

9. A. is a principal, and B. is furety in a bond. A dies, B.takes administration, the bond is forfeited; B. gives the creditors a bond in discharge of the debt. He cannot plead plene adminiftravit, and by fhewing this matter be relieved, because by joining with the principal the debt became his own debt. 4 Le. 236. pl. 373. Mich. 5 Jac. C. B.

10. Two men were bound jointly in a bond, one as principal and the other as furety; the principal died inteftate, the furety took adminiftration of his goods; and the principal having forfeited the bond, the furety made agreement with the creditor, and took upon him to discharge the debt; in debt brought by another creditor, the queftion was upon fully adminiftered pleaded by the adminiftrator, if by fhewing of the bond, and that he had contented it with his own proper money, whether he might retain fo much of the inteftate's estate; and it was adjudged that he might not; for Fleming Ch. J. faid, that by joining in the bond with the principal, it became his own debt. Godb. 149. pl. 194. Mich. 5 Jac. in C. B. Anon.

11. It has been adjudged that executor may retain for a debt due to him from teftator on a fimple contract; per Hale, Vent. 199. Pafch. 24 Car. 2. B. R. in cafe of Seaman v. Dee.

12. So far as the perfonal eftate goes, the adminiftrator may prefer bimfelf, but no further; afterwards they can only fhare with the other creditors, &c. 2 Chan. Cafes, 55. Trin. 33 Car. 2. Gell v. Aderley.

13. B. was bound as furety for A. to C. and for B.'s indemnification A. affigned to B. a term for years and dies, and made B. executor, J. S. was a creditor to B. by fimple contract, and there being no perfonal aflets left, A. having applied all them to the payment of his own debt, J. S. would have the benefit of the term for payment of his debt, fed non allocatur, for that the executor may apply the perfonal aflets one way or other. 2 Vern. 36. pl. 29. Hill. 1688. Sprignel v. Delawne.

14. If an action be brought against a special adminiftrator and the administration determines pending the action, he ought to retain affets to fatisfy the debt which is attached on him by the action; per Holt. Comb. 465. Hill. 10 W. 3. B. R. Sparks v. Crofts.

Carth. 432.

S. C. but
S. P. does

not appear.

--Ld. Raym. Rep. 265. S. C. but S. P. does not appear.

15. Administrator may retain a bond debt against rent, but he cannot plead a bond debt due to another. 1 Salk. 326. Hill. 11 W. 3. B. R. Per Curiam in cafe of Gage or Gray v. Acton, 16. A court

U 3

It was agreed

that both in law and equity an

executor

may retain

16. A court of equity will never afist a retainer, and if there are equitable affets only, the executor ought not to retain to pay all but only a proportionable part. Per Ld. Wright, Ch. Prec. 181. Mich. 1700. Hopton v. Dryden.

for his whole debt when in equal degree. Wms.'s Rep. 226. Mich. 1715. Waring v. Danvers.

[266]

The re

porter at the

end of the page adds a

in the cafe

of Hill v.

17. If adminiftration be granted to a creditor, and after repealed at the fuit of the next of kin, he fhall retain against the rightful adminiftrator. 1 Salk. 38. pl. 6. Pafch. 13 W. 3. B. R. Per Holt Ch. J. in cafe of Blackborough v. Davis.

18. A. before marriage gave a bond to a trustee for his wife to leave her 1001. if foe furvived him, and after was indebted by bond to B. in 120l. A. died and made his wife, who furvived him, executrix; it was objected that the executrix cannot retain the 100 l. quere; for though the might give judgment to her truftce on this bond, but that the right of retainer is where the executrix cannot fue, and therefore for necefity fhall retain, and that the debts fhall be paid in average, as had been often decreed by the Mafter of the Rolls; but Ld. C. King held, that though in ftrictnefs of law the executrix cannot retain in this cafe, yet fince it would be a vain thing for her to pay the 100l. to her own trustee with one hand and take it back with the other, there this bond in equity fhould be the fame as if made to herfelf. Trin. 1725. 2 Wms.'s Rep. 298. Cock

Underwood,
Trin. term
1759, Ld.
Chancellor
femed not
fatisfied
with this
refolution.

roft v. Black.

And.24. pl. I.

50. S.C.according y.Bendl. 11.

IN

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N debt by A. against B. executor of C. he pleaded plene adminiftravit, and in evidence A. fhewed that B. had a farm of C. in his hands of the value of 200 marks; the defendant fhewed how be pl. 8. S. C. had expended 200 marks for the debts of teftator. Upon confultation with the juftices of B. R. this was admitted for evidence in maintenance of the ifiue of fully administered; for it is tantamount. Mo. 2. pl. 3. cites 6 E. 6. Shelly v. Sackville.

cited, mentions the

point stated to the juf

tices of B.

R. for their opinion, viz. Whether this is good evidence for the defendant without having pleaded this matter by way of bar (who answered that it was not; by which they proceeded further in the mat[Quære, if the word (not) fhould not be omitted?]

ter.

2. A. was indebted by bond to B. in 201. and to C. in 60 1. A. makes D. his executor and dies. C. makes D. his executor also and dies; D. may retain against B. for the 60 1, but then he must plead as of his election made before the action brought by B. 2 Brownl. 50. Hill. 8 Jac. C. B. Burdett v. Pix.

3. An action of debt brought against an adminiftrator, who pleads that the inteftate was indebted to him by obligation, and that he retained the money in his hands to fatisfy the debt. The plaintiff replies that the money was not due and payable to him at the time of the inteftate's death, and that he took adminiflration after the day of payment; and if the adminiftrator had pleafed, he might have took administration before the day of payment; and the Court held the de

fendant's

fendant's plea good, but he shall not have the forfeiture. Brownl. 73. Pafch. 12 Jac. Grove v. Jourdain.

4. Administrator defendant may give retainer in evidence or plead it at his liberty. Brownl. 75. Bond v. Green.

5. On pleading, plaintiff demurred because it did not appear that adminiftration avas committed to the defendant, and fo had no colour to retain; adjudged for the plaintiff, for the plea is infufficient. 2 Jo. 23. in C. B. Calverly v. Ellifon.

6. In debt against an executor he pleaded, that the teftator was indebted to him on bond conditioned to pay rent, and that at the time of his decenfe there was 300l. due for rent, and that he had no more than 601. affets to pay it; the plaintiff replied, that at the time of the teftator's death there was but 30 1. due for rent. The Court held this a good replication, though the penalty of the bond was forfeited at the time of the teftator's death. Vent. 354. Pafch. 35 Car. 2. [267] B. R. Page v. Denton. For if a bond due to a stranger is forfeited, and this is pleaded by an executor, and that he hath not affets ultra, it is a good replication to fay that the obligee would have taken part of his money in full, and it fhall be a bar for no more; and in the cafe above the defendant ought to take only his own due debt. And the Court faid that if men would plead their cause specially, it would fave many a fuit in Chancery. Ibid.

(N. a) The Power of an Executor.

[Or; The Power of a Feme Executrix.]

[1. A
Feme executrix cannot give the goods of the teftator in pios ufus
without the affent of the baron. 18 H. 6. 4.]

[2. A feme cannot make acquittance or release without her baron. 27 E. 3. 82. b. admitted by iffue. Contra, 8 H. 6. 4. b.]

Fol. 924.

Br. Executor, pl. 153. cites 16 H. 6. Contra, that the release of a feme covert executrix is a good bar; fo of an infant executor. But Brook fays, quære of a feme covert.

3. Before entry executor may alien a term; Arg. Pl. C. 520. b.

Hill. 20 Eliz. in the cafe of Welden v. Elkington.

4. Executors may justify the entry into the house of their teftator upon the heir or fucceffor to take the goods of their teftator if the doors are open.. Br. Executor, pl. 129. cites 21 H. 6. 30.

411. that

4. If adminiftrator on condition before the condition broken gives S. C. cited the goods of the inteftate, and after the condition is broken, yet the Arg. Show. gift ftands good. 6 Rep. 19. in Packman's cafe, cites Dy. 339. if he fells 17 Eliz. and 34 H. 6. 14. a. b.

the goods of the in

teftate, yet the fale ftands good.

5. If executor will not fell teftator's goods at the value, or fell under the value, he fhall be charged, and the party fhall demand the debt against him with an averment; but if upon a recovery

U 4

againft

3 Le. 200. Arg. in the cate of Pa

ramour v. Robinfon.

-Fin.

against executor the plaintiff has a fi. fa. to the sheriff of teftator's goods, and they pro defectu emptorum remanent, &c. and a ven ditioni exponas is awarded, and the fheriff fells them under the value, the party has no remedy unless he does it by covin; per Frowike Ch. J. Keilw. 64. b. Trin. 29 H. 8.

6. Executor cannot devife the goods of the first teftator, because his executor has it by title before the devife fucceeded as executor immediate to the firft teftator. Pl. C. 526. a. Trin. 19 Eliz. Branfley v. Grantham.

Law, 8vo. 168.

fupra.

Cro.E.459.
Hil.

38 Eliz.

Wilfon v.
Packman,
S. C..

Roll. Rep. Arg. 140. 143. per Doderidge, cites Pl. C. Grantham's cafe,

7. Administrator has the abfolute property of the goods in him, pl. 5. H. and may give the goods to whom he will, and though the adminiftration is afterwards revoked by citation (but if on appeal it is otherwife), yet the gift is not defeated; but if the gift be by covin, this fhall be void * by 13 Eliz. 5. against a creditor, but it is good against the fecond adminiftrator. 6 Rep. 18. b. Hill. 37 Eliz. B. R. Packman's cafe.

For fince the statute

of 31 Ed. 3.

the admini

ftrator has as abfolute a property in the goods as an executor who is in by the very will of the teftator. Per Holt Ch. J. 12 Mod. 617. in cafe of Blackborough v. Davis.

*[268]

And per Keeling J. he cannot fo waive it but that he fhall be

8. Executor of leffee for life of a house has no intereft in the house, but only a licence in law to enter and take away the goods. Yelv. 124. Hill. 5 Jac. B. R. in cafe of Sandford v. Sutcliffe.

9. Teftator bequeathed a debt, which J. S. owed him, to B. and C. executors. C. proved the will, and releafed to 7. S. the debt. B. brought his bill, to which the release was pleaded, which was allowed, and the bill difmiffed. Nelf. Chan. Rep. 56. anno 1649. Matthews v. Thomas.

10. An executor cannot waive a term, but he fhall be charged for the rent if he has afiets; for he is obliged to perform all contracts of the teftator if he has affets, be the rent high or low. 1 Lev. 127. Hill. 15 & 16 Car. 2. B. R. Hellier v. Cafebert. charged in the detinet upon which the affets fhall come in queftion; and Twifden agreed. Ibid.. Sid. 240. pl. 12. and Ibid. 266. pl. 17. S. C, adjudged, and contra to the cafe of Overton v. Sidhall, as reported in Walker's cafe, 3 Rep. 24.

An executor that intermeddles cannot waive a leafe or any other part of the teftator's eftate, for he cannot affume the executorihip for part and refute for part; but in cafe the land is not of more worth than the rent, it is a good plea to an action of debt in the debet and detinet, for he is to be charged in the detinet only; though when the rent is of iefs value he may be charged in the debet and detinet for what is accrued in his own time, according to Hargrave's cafe. 5 Rep. Vent. 271. Trin 27 Car. 2. B. R. Bolton v. Cannon.Freem. Rep. 394. pl. 510. S, C. it feemed per Cur. that an executor could not waive his term; for if he had affets he fhould be charged de bonis teftatoris, and the profits of the lands are only affets to the rent, and only the furplus above the rent is affets to other debts.

11. A. devifed 1000l. to be laid out in a purchase of lands, or otherwife to the best advantage, and the intereft thereof to be paid to B. till a good purchase of fome good leafe, annuity, or rent-charge, fhould be made therewith for B. during his life, but if he died before fuch purchase, then 500l. to C. and 500l. to D. On bill for her 500l. defendant pretends the money was all spent at law for B. whilft he lived and was under his care, and otherwise for

his

his benefit. Decreed the 500 l. and damages fince the bill to D. for that the defendant could not lay out the money in any other manner than fuch as was directed by the will. Fin. Rep. 250.

Pafch. 28 Car. 2. Corbet v. Franklin.

12. Monies due on a contract for land are fecured by bond. Vendor dies, and leaves three executors in truft, and one of them delivers up the bond, and takes a new one in his own name, and the name of his co-executors, and releases the articles, by which means 500l. intereft was loft to the infant for whom the trust was. Fin. C. decreed the payment to be made according to the times of payment in the first articles, and the faid executor and the vendee to be, charged therewith notwithstanding the releafe. 2 Chan. Cafes, 235. Mich. 29 Car. 2. Hilliard v. George.

13. A. devised a term to his executrix for life, and after to his daughters. The executrix affented to the legacy, and affigned the term, though there was not want of affets, and died. Decreed the term to the daughters. Fin. Rep. 378. Trin. 30 Car. 2. Tomlinfon v. Smith.

14. A. devised lands to B. to pay mortgages firft and then legacies, and makes B. executor. Executor mortgaged the lands to raise money to pay other debts of A. Though debts are not directed to be paid by the will, but only mortgages and legacies, yet fuch new [269] mortgages fhall take place of the legacies; per Finch C. Vern. 69. pl. 65. Mich. 1682. Brent v. Beft & al'.

15. Some debts owing are within the ftatute of limitations, and the executor refufes to plead the flatute. Ld. Sommers denied to give leave to the refiduary legatee to make defence inftead of the executor, and fo enable him to bar fuch creditors by pleading the ftatute. Chan. Prec. 100. pl. 88. Mich. 1699. Ld. Castleton v. Fanfhaw,

16. Upon the death of a termor, reverfioner entered, and died feifed. Afterwards adminiftration de bonis non is granted. Per Cur. the term had an exiftence as foon as the administration was granted, and the administrator may have a special action of trefpafs, fo his entry not tolled. 5 Mod. 384. Hill. 9 W. 3. B. R. Trevillian v. Andrew.

17. The executor has fuch immediate possession of goods at a diftance, of the teftator's, that he may maintain trover for them in his own name against any converter of them, and the damages recovered fhall be affets in his hands. 6 Mod. 181. Pafch. 3 Ann. B. R. in cafe of Jenkins v. Plume.

18. As an executor may fell, fo he may mortgage, and the purchafor is not concerned to fee the eftate cleared, though it was once held otherwise in case of a specific legacy in the House of Lords, which he faid was an hard cafe, and hoped would never happen again; but if it did, he did not know how far that would be a precedent, but he would not allow it in any other cafe; per the Master of the Rolls. Trin. Vac. 5 Geo. 1719.

19. Executor is no more than a truflee made by the testator, and has not the same right to the perfonal estate, as the heir has

Equity will not compel the exe

cutor to plead the ftatute in

fuch cafe. Equ. Abr

305. S. C.

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