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to his hands, or what D. or his guardian received for interest of the furplus or the dividend. 2 Ld. Raym. Rep. 1320, 1321, 1322. Mich. Geo. in cafe of Spendlove v. Aldrich & al'.

31. Any or either of the executors, though they are only in truft, may receive and give discharges for money before probate, efpecially when (as appeared in the principal cafe) they afterwards proved the will, and fo were executors ab initio. Agreed. Abr. Equ. Cafes, 319. Hill. 1729. Auften v. Executors of Sir William

Dodwell.

of

32. Three administrators appointed a receiver, who received a fum money for their ufe, and divided to each adminiftrator one third part. Two of the adminiftrators afterwards failed. The queftion was, upon a point referved at nifi prius, whether the third adminiftrator was liable for the whole fum, or for his own third part only, to a new administrator? Per Cur. the defendant is refponfible for that third part only which he received, and not for a devaftavit committed by his co-adminiftrator. If payment had been made to a wrong perfon, the cafe had been otherwife; but here the money was properly paid. Defendant is not concerned how his co-adminiftrators difpofe of their parts. The three are equally entrufted. Barnes's Notes in C. B. 318, 319. Pafch. 8 Geo. 2, Champney v. Browne.

(A. b. 2) Joint-Executors; Inter se.

Remedy for one against the other. And Pleadings.

1.

A Nexecutor fhall not have an account against his companion. Noy, 78. in cafe of Bellamy v. Alden, cites 13 E. 3. Executor, 91.

The one

cannot force

the other to

account in

Chancery.

Per Serjeant Maynard. Sid. 33. pl. 13. Hill. 12 & 13 Car. 2. in Canc. Aprice v. Flower. But the reporter fays, quære tamen.

2. Releafe to one executor shall ferve for all. Br. Dette, pl. 65. [ 364 ] cites 11 H.

4. 83.

3. If one executor be poffeffed of goods of the teftator, and the other executor takes them from him, the other has no remedy by any acBr. Executor, pl. 98. cites 39 H. 6. 27.

tion.

4. In trefpafs; per Brian Ch. J. where a termor devifes his term, the devifee cannot enter after his death without livery of the executor; by which he said, that the devifor made the plaintiff and this defendant his executors, by which he entered; and per tot. Cur. he may enter and hold in feveralty. Br. Devife, pl. 24. cites 20 E. 4. 9.

5. Trefpafs by A. against B. who faid that W. was poffeffed of the An execu goods, and made the plaintiff and defendant his executors, and died, by tor to whom which he took the goods, &c. Judgment fi actio. The plaintiff faid, the goods of that the teftator willed by his teftament, that when all the debts and the teftator legacies were paid, the plaintiff fhould have the reft of the goods which were given remained, debts paid,

Dd 2

after his

may retain

executor

remained, and that they had paid fuch debts and legacies, and the fame re- fhewed to whom, &c. which were all the debts and legacies, and fidue against his compa- the goods in the action were the refidue which remained, by which the nion, and plaintiff took them, and was possessed till the defendant took them; by if the other which the defendant faid, that fuch a legacy and fuch a debt is yet due, takes them, and not paid, abfque hoc, that the debts and legacies alleged by the plaintiff were all the debts and legacies, &c. and the iffue found for the plaintiff and per Cur. the traverse was well taken, and fhall come of his part who took it, and not of the other part, and without the traverse the plea is not good; for he has not confeffed and avoided it, and therefore he ought to traverse. Br. Traverfe per, &c. pl. 187. cites 6 H. 7. 5.

he may have tref.

pafs against him. Br. Executor,

pl. 104. cites 6 H.

7.5.

D. 23. b.
pl. 146.
Marg. cites
27 H. 8. 22.

6. Co-executors cannot make partition of the goods between them. Fin. Law, 8vo. 168. cites 17 H. 8. 22. 21 H. 7. 29.

Br. Executor, pl. 7. S. P. cites 27 H. S. 21, 22.

14. Nor of a term for years, for they are not like joint leffees, where each has but a moiety in intereft, though he has poffeffion of, or though the whole; whereas each co-executor has the whole, and there are no parts or moieties, because co-executors. Went. Off. Ex. 98, 99.

7. Note per Cur. that the one executor cannot give any of the goods of the teftator to another. Br. Executor, pl. 7. cites 27 H. 8. 21, 22. 8. And if the one dies, the other who furvives shall have detinue against the executor of him who died, or against him who has the poffeffion of them; quod nota. Ibid.

9. If I make my debtor and another executor, and debtor dies, the other executor fhall have debt against the executors of debtor, because the action was only in fufpence, and not extinct, and fo is revived; per Keble; Arg. Keilw. 122. b. pl. 75

10. Demurrer, pretending one executor cannot fue another, was over-ruled, because the matter is mere teftamentary. Toth. 137. cites 20 Eliz. Crocker v. Hamden.

11. A. the plaintiff's brother devised goods to his two fons, to be delivered at their full age, and made the plaintiff and defendant executors; 100l. of the goods came to the plaintiff's hands, and 250l. came to the defendant's hands. The plaintiff's bill is, that in respect of the truft and joint-charge which may furvive, that the plaintiff and defendant may each be bound to the other to pay the chil dren their portions in their hands at their full age; and if either plaintiff or defendant die before, then the executor fhall pay that which was in the teftator's hands to the furvivor, which this Court [365] thought in confcience to be meet, because the defendant by anfwer confeffes the truft and receipt of 2501. Therefore a fubpoena is awarded against the defendant, to fhew caufe why it fhould not be decreed. Cary's Rep. 112, 113. cites 21 & 22 Eliz. Cotton v. Caufton.

12. One cannot affign a term to the other, because he was poffeffed of the whole term before. Cro. E. 347. pl. 19. Mich. 36 & 37 Eliz. B. R. Pannel v. Fenn.

13. One

13. One executor may fue another in this court, though not at law. Toth. 150. cites 1585. Allen v. Story, and 39 Eliz. Okely v. Barnard.

15. One cannot give or releafe his intereft to the other; but it will be void, and the releafor fhall ftill have as much as his releffee; because each had the whole before, and therefore it was held long fince, that by fuch releafe of his part of a debt, or by grant of his part of teftator's goods, all was discharged or paffed, because each had the whole, and there are no parts or moieties between executors. Went. Off. Ex. 99.

16. So, and for the fame reason, the one cannot make a leafe to the other of any part, for he had the whole. Went. Off. Ex. 99. 17. A. and B. are joint executors, and the refiduum devised to them. A. dies. The adminiftrator of A. fues B. for an account, which was decreed (but to the diffatisfaction of the Bar). Chan. Cafes, 239. Mich. 26 Car. 2. Cox v. Quantock.

Fin. Rep. fays, that afterwards

176. S. C.

on the prayer of coun

fel to the Ld. Keeper to reverse his decree, he directed that several judges be attended with this order. and to certify their opinions, who were feverally attended, but gave no opinion; whereupon the Ld. Keeper, upon confidering the matter again, ordered the bill to be difmiffed, but without cofts.. 2 Freem. Rep. 140. pl. 178. Cox v. Queenlock, S. C. decreed; but fays that upon a rehearing the Ld. Keeper took the affiftance of Ld. Ch. J. North, and three other judges, who were of opinion that it was against the common law in the point of furvivorship, and would introduce a relief in equity against all furvivorships in cafe of jointenancy; having no other circumstances in the cafe, and fo that decree was reverfed. The reporter adds a nota, that this was reverfed chiefly on this ground, that debts may arise seven years after, and fo the eftate fhould furvive for the poffibility of advantage to the credi-Equ. Abr. 242. (C) pl. 1. S. C. abridged from Chan. Cafes, 239. But the author (Mr. Foley as is ftrongly fuppofed) makes a quære in the margin; for that the refolutions fince have been otherwife in equity; and it feems well fettled, that the furvivor fhall have the whole by law; as where a man devised goods to A. and B. and the executor affented to the legacy, and A. died, and bis executor fued in the fpiritual court for A.'s fhare, there being no furvivorship in fuch cafe, by the ecclefiaftical law; whereupon B. fued a prohibition, and declared; and upon demurrer and argument, it was adjudged the prohibition should ftand; for by the affent of the executor, the intereft was vested in the legatees, and became a chattel in them, governable by the rules of the common law. Mich. 29 Car. 2. between Baftard and Stukely. 2 Lev. 209. and fays, fee 1 Lev. 164. 2 Jo. 161. 130.

tors.

I

18. A co-executor was decreed to perform an award 12 years after the award made, and though the other co-executor made no demand in all that time; but tranfactions were between them. Fin. Rep. 34. Trin. 30 Car. 2. Sweet v. Hole.

accordingly

19. They are to be confidered as jointenants where furvivor- S.P decreed thip thall take place, as well in cafes of chatte's as in cafes of in- at the Roll, heritance. Equ. Abr. 243. pl. 3. Trin. 1729. at the Rolls. on time Cray v. Willis.

taken to confider of

the cafe, and citing most of the authorities both out of the civil and common law. Equ. Abr. 243. pl. 4. Trin. 1730. in the cafe of Hunt v. Berkley.

But if teftator devifes to one of his executors the refiduum after fuch debts and legacies paid, there after payment fuch executor may take the goods and maintain trefpafs against the other co-executor if he takes them from him, and confequently detinue for keeping or detaining them. But this is as legate, his own affent perfecting the legacy. Went. Off. Ex. 99.

tor, pl. 66.

cites S. C.

(A. b. 3) What one may do without the other.

And where one is an Infant.

Br. Execu. 1. DEBT fhall be brought by one executor only, where there are three executors, and the plaintiff only fold the goods of the teftator for a certain fum; for it is of his own contract only; but of debt due to the teftator, all ought to join. Br. Dette, pl. 81. cites 38 E. 3.9.

Br. Con

7. cites

2. If one executor will release a debt without the confent of fcience, pl. his co-partner, whereby the will cannot be performed, the releafor and the releafee fhall be ordered therefore in Chancery; by the Chancellor against the opinion of Fineux. Cary's Rep. 20. cites 4 H. 7. 4.

S. C.

Co. Litt.

113.a. fays,

that though the letter

of the law ly where executors have

extends on

a power to fell, yet

3. 21 H. 8. cap. 4. f. 1. Where part of the executors of any perfon making a will of lands to be fold by his executors, refufe to take upon them the adminiflration, all bargains and fales of fuch lands, made by fuch only of the executors that accept fuch adminiftration, shall be as effectual as if all the executors had joined in the making of the bargain and fale.

S. 2. Provided that this act shall not give power to any executors to bargain or put to fale any bereditaments, otherwife than by the com this being a beneficial mon law.

law it is

by construction extended where lands are devifed to executors to be fold. Yet in neither of thofe cafes, albeit one refufes, can the other make fale to him that refused, because he is party and privy to the last will, and remains executor ftill. But Ld. Coke fays, that his advice to them that make fuch devifes by will is to make it as certain as they can, as that the fale be made by his executors, or the furvivors or furvivor of them, if his meaning be fo, or by fuch or fo many of them as take upon them the probate of the will or the like. And it is better to give them an authority than an eftate, unless his meaning is that they fhould take the profits of his lands in the mean time, and then it is neceffary that he devifeth, that the mean profits till the fale fhall be aflets in their hands; for otherwife they shall not be fo.

A. feifed of the manor of D, devised the same to J. Ș. and three others, and their heirs, to the intent the devifees fhould fell it for the bett profit, and convert the money to the performance of his will, and makes them his executors, and dies. One of them refufes to fell, but the other three fell, living the fourth. Acjudged that the fale was good by the three, either by the common law or by the ftatute 21 H. 8. and the making them his executors is as rauch as if he had devised that the executors should fell, and in fuch cafe the fale by the three without the fourth is good. Cro. E. So. pl. 43. Mich. 29 & 30 Eliz. Bonefant v. Greenfield. Le. 60. pl. 78. S. C. ·Godb. 77. pl. 92. S. C. adjornatur.

Cro.E.478.

pl. 8. S. C. the Court

4. Three executors, one an infant, they must fue by attorney, because they make all but one perfon, and fue in auter droit. Cro. E. 378. in a nota in pl. 28. Hill. 37 Eliz. C. B. in the cafe of Rutland (Countefs) v. Rutland (Countefs) fays, it was refolved that it was good.

5. There were two executors, and the one of them gave a bond due to teftator, to a creditor of his own, in payment of his own feemed to debt, and dies; adjudged, that detinue lies not by the furvivors. be divided. Mo. 422. pl. 589. Mich. 37 & 38 Eliz. Kelfick v. Nicholson.

But ibid.

496. S. C. adjudged by three juftices, contra Fenner for the defendant,

6. The waving of one executor is good; and though that he might after adminifter, as the book of 21 E. 4. is, for that the intereft of his companion prefers his authority, where there are two or more. But if there be but one executor, and he refufeth, and the ordinary grants adminiftration to another, he cannot then adminifter again. 2 Brownl. 58. Agreed by all the juftices, in the cafe of Bedel v. Bedel. Hill. 8 Jac. C. B.

12. Infant executor ought to fue by guardian; Twifden J. fays it has been fo adjudged. Vent. 54. Hill. 20 & 21 Car. 2. B. R. Foxwift v. Tremain.

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that he ought to be fued by guardian, or else it is error, cites Sty. 318. Wild v. Rumney, and adjudge ed accordingly, lbid. 170. Coan v. Bowtes. Though an infant fole executor cannot fue per at, fornatum, yet if he does fue per attornatum and recovers, his appearance is no error; but it is otherwife where he is condemned in the action. Per Holt Ch. J. Carth. 123. Pafch. 2 W. & M. in cafe of Coan v. Bowles.

13. And though above 17, he ought to fue by guardian or by prochein amy. Vent. 103. Mich. 22 Car. 2. B. R. in cafe of Foxwift v. Tremain, cites Peyton v. Dorce.

14. Four executors; two of them are under age; quære, whether they fhall fue by attorney? It feems thofe of age may make an attorney for thofe under age. Vent. 40. Trin. 21 Car. 2. B.R. Foxwift v. Tremain.

Ibid. 102.

Mich. 22
Car. 2.

S. C. ad

judged by Rainsford

and Morton J. contra Twifden, abfente the Ch. Juftice.-Raym. 198. S. C. but no opinion. Mod. 296. S. C. Moreton and Rainsford were of opinion contra Twifden, but fays that afterwards the fuit was compounded.. — Lev. 299. adjudged accordingly that the defendant anfwer over.-Sid. 499. pl. 13. S. C. adjudged accordingly. The reporter fays nota, it was agreed by all that if one executor be of full age, and another within 17 years, that they fhall join in action, because both are executurs quoad effe, though they are not quoad executionem.. -2 Saund. 212, 2r3. S. C. reports it to be adjudged by Moreton, Rainsford and Twifden (the Chief J. being fick), for the plaintiff; but Twifden faid that his opinion was, that the infant executor cannot fue by attorney, but faid that the opinion of the Chief Justice and the other juftices was to the contrary. Where an infant is executor a one he cannot fue per attornatum, for if he do he shall be amerced pro falfo clamore; but where he is joined with others of full age it is otherwife, becaufe those of full ge have authority to dispose all their affels without the affent of the infant, and this is the reafon of the difference between an infant plaintiff and defendant in 2 Saund. 212. [Mich. 22 Car. 2. Foxwith v. Tremain.] Per Holt Ch. J. Carth. 123. Pafch. 2 W. 3. in B. R. in cafe of Coan v. Bowles.-2 Saund. 212. denied to be law, and held that infant executor can neither fue nor be fued by attorney. Gibb. 2. Mich. 1 Geo. 2. B. R. in cafe of Kenifton v. Frifkobaldi.

Lev. 299.

S. C. adjudged by Rainsford and More

ton, contra Twifden,

ægroto. Vent. 102.

15. There were two executors, and one of them an infant; they both joined in an action, which they brought per attornatum; it was objected that they could not fue by attorney, becaufe an infant may not make a warrant of attorney; for the law prefumes that he is not able to inftruct one; but it was adjudged, that fince one of the executors was of full age, they might both fue per attor natum, for both represent the perfon of the teftator, and fue in the right of another; and it fecms unrcafonable that one of them fhould fue per attornatum, and the other by his guardian; but Twifden was of another opinion, viz. that an infant executor can- -Raym. not fue per attornatum, because he cannot make a warrant of at- but S. P. torney, and if he fhould be nonfuit, he must be in mifericordia, does not apwhich an infant ought not to be. 2 Saund. 207. 212. Mich. pear.. 22 Cap. 2. Foxwift v. Tremaine.

judged accordingly, but Twilden fortiter e contra. Dd 4

S. C. ad-judged ac

codingly.

198. S. C.

Sid. 449.

pl. 13. S.C. & S. P. ad

-Mod. 47. pl. 102. and 72. pl. 26. and

296.

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