eftate, and

afterwards

A. marries,

of CUTLER, AND COXETER, cited; where, on like devifes, it was declared the wife fhould take as executrix, and not as legatee; the Mafter of the Rolls thought the had as well loft her share of the furplus as her right to the executorship, and difmiffed the bill. 2 Vern. 308. pl. 299. Hill. 1693. Barton, alias Stone, trix; it was V. Barton.

and by a cod.cil

makes his

wife execu

urged that

he does not take it as executor only by exprefs words of gift. But per Finch, the wife shall have the perfonal eftate, and not the brother, for it was intended him only as executor. Vern. 23. pl. 16. Mich. 1681. Wilkinfon v.. -S. C. cited 2 Vern. 302. in cafe of Cutler v. Coxeter.

S. C. cited per Cur. Gibb. 41. Mich. 2

18. A. by will charges his real estate with the payment of debts and legacies, and funerals, and devifed to his wife all his perfonal eftate not other wife difpofed of, whom he made executrix. Ld. Keeper Geo. 2. in Wright before, and Cooper K. now, both held, that the devise being in the fame claufe in which fhe was not named executrix, and not faid free and exempt from payment of debts, she must take it as executrix, and the fame must be applied to the payment [404] of debts, in cafe of the real eftate. 2 Vern. 568. pl. 515.

Scacc.

Hill. 1706. French & Ux' v. Chichester.

19. Bill by heir at law against executor, to have an account of the perfonal eftate of his anceftor, &c. in exoneration of the real eftate devifed to truflees to be fold for payment of debts. W. by will devifes to truftces (ut fupra) and gives his wife feveral specific legacies, and further devifes to her all the refidue of his perfonal eftate, and alfo gives her the fum of 600l. out of the money to be raised by fale of the truf eftate, and makes her executrix. Harcourt Chancellor faid, this is a much stronger cafe than that of CHRIST'S HOSPITAL v. GARRAWAY, for there was no devife out of the personal estate; but here is that, and also a devife of the perfonal estate. It fhews that he did not think this fufficient for her, but gives her a further fum of 600l. which is the ftrongeft prefumption imaginable of the intent that the wife fhould have the refidue of the perfonal eftate, and as to the account thereof, the bill was difmiffed. 12 Ann. in Canc. Wafe v. Whitfield.

20. A. by deed fettles his lands for payment of his debts, and after makes his wife executrix, and devifed all his perfonal eftate to his executrix, and by fubfequent claufes in the will devifed feveral Specific and pecuniary legacies to her, and dies; adjudged that the wife takes the perfonal eftate not as legatee but as executrix, and fo the fame after the legacies paid fhall be applied to discharge the real estate in favour of the heir. But per Pengelly Ch. B. if these words to her own ufe, had been added, or fuch like words, it might give fome caufe of doubt. Gibb. 41. Hill. 2 Geó. 2. in Scacc. Lucy v. Bromley.

21. A. by will gives all his perfonal eftate to his three fifters, equally to be divided between them, and (being indebted by fimple contract, bond and mortgage) gives his real estate to his four fons, chargeable with his juft debts; and makes his fifiers his executrixes. The perfonal eftate fhall be applied in exoneration of the real; efpecially as one of these funds must be exhaufted. Cafes in Equ. in Ld. Talbot's Time, 274. Mich. 1734. Bromhall v. Wilbraham.

(L. b) What amounts to an Election to take as Executor or as Legatee.

i.

IF Fa devife be to an executor for education of children, whom be educates accordingly, this makes an election to have the thing by way of legacy and not as executor. Went. Off. Ex. 224. cites Pl. C. 543. Paramour v. Yardley.

2. It was given in evidence that the wife, (who was executrix and legatee of a term of her firft husband,) after the death of her teftator had repaired the banks of the land, as if the fame would amount to claim it as a legacy; and the Court faid that that matter fhould be referred to the jury; but a leafe made by executrix and her bufband, reciting that he was poffeffed in right of the wife as executrix of her first husband, was, upon producing the leafe, held as an express claim as executrix. Le. 216. pl. 298. Mich. 32 & 33 Eliz. C. B. Cheyney v. Smith.

3. If executor by will bequeaths to J. S. the thing bequeathed devised to him, this is an election to have it as legatee. Went. Off. Ex. 225. Marg. cites Trin. 37 Eliz.

4. Executor devifee of a term entered and occupied a whole year without proving the will. Went. Off. Ex. 224. fays, that in the latter part of Ld. Dyer it is found, that this was held an election [405] to hold it as devifee, and not as executor, but says, that he fees not well how that fhould be law. For ift, He had good right to the term as executor before probate, and fo might clearly in that right have taken the profits, though it had not been devised or bequeathed to him, and that before any will proved. 2dly, He could not by right have it as legatee without affent of himself or fome other as executor, therefore this general acceptance can determine no election, Went. Off. Ex. 224, 225.

(M. b) When he fhall take as Executor or as

Devisee.

I. A Term was devifed to executrix, to educate children of teftator,

prima facie fhe takes as executrix; but if fhe educates the children, this is election to take by the devife; Arg. Mo. 493. cites [Pl. C. 539, b. Hill. 21 Eliz.] Yardley's cafe.

2. A. poffeffed of a term, devifed the fame to his fon when he came to 18, and that his wife should have it in the mean time, and made her executrix, and died before the fon came to 18. The wife took husband. It was held that she should have the term as executrix till the son should have come to 18. 4 Le. 1. pl. 2. Pafch. 23 Eliz. Anon.

tidale v.

3. A. devifed land to J. S. and J. N. upon condition, and, if Cro.E. 288. they perform not the condition, then that their eftate fhall ceafe, pl. 3. Mare and that the executors of A. fhould have it to them and their Martin, VOL. XI.

Gg

heirs, S. C. re

folved to be

no condi

fion.

Goldb 185. pl. 125.

heirs, upon truft and confidence that they hall ftand feifed to the fame ufe limited to J. S. and J. N. and makes B. and C. executors, who refufe onus teftamenti; yet it was adjudged that they may take the land by the devife, and that the words (upon truft and confidence) do not make condition to their eftate. Mo. 594. pl. 806. Mich. 34 & 35 Eliz. Gibbons v. Marltiward.

4. A. fefed of land, and pofleffed of a term, devised all his lands and tenements to his executors till they had paid all his debts and S. C. as to legacies, &c. A. made J. S. and J. N. his executors They entered but faid no- generally into the land and into the term. Adjudged that they thing of the took the term as executors, and not as devifees, but they took the freehold, freehold as devifees. Mo. 350. pl. 470. Hill. 36 Eliz. Pannel v.

the term,

and held per

Clench and Fenn.

Fenner J.

that they take as executors. But by Gawdy J. if I make two my executors, and devife the profits of myl and to them until my debts and legacies are paid, and until they have railed 1001. and after that to their own ufe; they fhall take as legatees, and not as executors in refpect of the 100l. which they ae to have to their own proper ufe.. -Cro. E. 347. pl. 19. S. C. adjud ed.

Cro.E.387. S. C. adjornatur.

5. Executor devifee fhall take a term as executor where he enters generally, if his being faid to take it as a legatee will be prejudicial to him, as to charge him in a deveftavit for want of aflets fhall prima to pay debts, &c. otherwife he fhall take it as legatee. Mo. 352. as legatee, pl. 474. Hill. 36 Eliz. B. R. Portman v. Willis.

He

facie take

this being more for his advantage; but otherwife where I devife a term to my executor for life only, remainder to J. S. because if the term were veited in the remainderman it could 'not be devested out of him again, and fo might make a devastavit. 2 Wms.'s Rep. 531. Trin. 1729. by the Mafter of the Rolls, in the cafe of Cray v. Willis.

[406]

6. All the rest of my goods, my debts and legacies being paid, I give to my executor. The teftator had feveral leafes of lands in feveral counties. The executor proved the will, and made election to have one tenement, part of the land, demifed as legatee, and died. The judges delegates agreed, that the election of this one tenement was election of all, notwithstanding the lands were feveral, and upon feveral demifes, because the devife is intire; and he dying inteftate, though the debts and legacies were not paid at the time he made his election, yet adminiftration fhall be committed as of his own goods, and not of the goods of the firft teftator. 2 Roll. Rep. 158. Hill. 17 Jac. B. R. Hinfon v. Button.

7. If an executor enters generally, he is in as executor, and not as devifce; per Mallet j. cites it as refolved in Lampet's cafe, and in Matthew Manning's cafe. Mar. 136. in pl. 209. Mich. 17 Car.

8. Where teftator devifed the furplus to his executors B. and C. after debts, c. paid, though it must be admitted, that until debts, &c. are paid, it cannot be known what the furplus is, yet in cafe where all the debts, &c. are paid, it may well be known what the furplus is, and fo there may be an affent to this legacy, fo that by the death of B. all fhall furvive to C. for here is an implied affent. See 2 Wms.'s Rep. 529 to 532. Trin. 1729. by the Master of the Rolls. Cray v. Willis.

I.

(N. b) Where he fhall take as Purchafor.

LE

3 Le. 154. Arg. cites 16 E. 3.

Quid Juris clamat, 22.

EASE for life to A. and if A. died within 12 years, that his executors fhall hold till the end of the 12 years. A. died. The executors entered, and brought actions of covenant, which proves that the executors had the term as a chattel vefted in teftator, and not in their own rights as purchafors by the name of executors; per Manwood J. 3 Le. 21. in Cranmer's cafe, cites 19 E. 3. that fuch Fitzh. Covenant, 24

Ibid. 31.

20 E. 3.

interest may

be granted

by A. but denied by Wray Ch. J. and cited D. 150. Gravener's cafe, that fuch interest is void.

Le. 21.

Cranmer's cafe was thus: Arch

2. Executor is a good name of purchase; per Dyer J. 3 pl. 49. Hill. 14 Eliz. C. B. in Cranmer's cafe. bishop Cranmer made a feoffment to the ufe of himself during his life, and after his decease to the use of his executors and affigns for 20 years, and after to T. C. in tail. The archbishop had no intereft in the term, and his executors (had it not been for his attainder) would have taken by purchase. Mo. 100. Cranmer's cafe. -D. 309. S. C.——. And. 19. Kirk v. Bails, S. C.

S. C.

-Le. 196. S. C.

-2 Le. 9. S. C.

3. Leafe to A. habendum to A's executor and affigns, for 40 years after the expiration of former leafe granted to A. for 40 years, of the fame lands, is void; for it is a perfon who is not a party. 3 Le. 32, &c. pl. 60. Mich. 15 Eliz. C. B. Anon.

-Bendl. 207.

If a leafe be made to remainder

A. for life,

to his exe

cutors for

years, and A. dies, this will be affets in the executor's hands, though it never was the teftator's, as was refolved per three juttices against Anderfon Ch. J. and there it was faid that Cranmer's cafe, where in effect it was refolved, was of little authority, for that there were two juftices against two till Mounfon J. changed his opinion, on a conceit that there the eftate was by way of ufe, which could make no difference; the like law of a leafe for years bequeathed to A. for life, and after to B. who died, living A. it shall be aflets in B.'s executor's hands. Went. Off. Ex. 82.

[ 407 ] D. 310.

Marg. pl. 79. S. C.

cited..

Yelv. 9•
S. C..

Cro E. 840.

4. If a man have a leafe for life, remainder for 40 years, the remainder is void, because there is no perfon named to whom it is limited; but if a man makes leafe for life and after his death to his leffee for 40 years, it is good, and the executor shall have it as in right of his teftator; but where a man makes a leafe for years or life, the remainder after his death for forty years to his executors, the executors shall have it as purchafors, for this word (remainder) natur. divides it from the teftator, and makes the executors purchafors; J. diftinper Anderson. Ow. 125. Mich. 40 & 41 Eliz. in cafe of Sparke guifhed this v. Sparke.

S. C. adjor

Walmsley

cafe from Cranmer's

14 Eliz. Dyer, because in that cafe, it is limited by way of ufe, and by the party himself, so he shews his own intent that it fhould not veft in himself bur in his executors, but here the limitation is by a ftranger, wherein there is not any intention appears but that it should veft in the leffee himself, and by this difference all the books are reconciled. Cro. E. 666. in cafe of Sparke v. Sparke.

5. If a man covenants to fland feised to the ufe of himself for life, remainder to his executors, the executors fhall take to the use of the teftator; but if a man for good confideration covenants to ftand feifed to the ufe of the executors of a franger, there the word (executors) is a word of purchafe, and they fhall take

Gg 2

to

to their own ufe; per Popham Ch. J. 4 Le. 239. pl. 387. B. R. Anon.

6. Devife of a rent-charge to his wife for life, and after says, if fhe marry, his executors shall pay her 100l. and the rent fhall cease and return to the executors. The rent is to continue till the rool. is paid, and the executor is in nature of a purchaser, and muft pay the 100l. before he fhall have the rent, and that whether there be aflets or not; per two juftices againft Twifden, who thought the devifor's meaning was to give her a prefent interest in the 100l. and that in fuch cafe the rent muft ceafe prefently upon the marriage; but however, fince it was to be iuing out of the inheritance, he thought it doubtful, and confented to the judgment for the baron in the right of the wife. Mod. 272. pl. 25. Trin. 29 Car. 2. B. R. Ofboru v. Walleeden.

I.

(O. b) Where he fhall have the Surplus.

· A. By the contrivance of B. his nephew, made a will, and B. executor, and faid nothing in his will of his perfonal eftate, which by this means the executor claimed though teftator left a fon; but it appearing by feveral matters that A. intended it for his fon, &c. decreed for the fon (an infant), and defendant to be examined on interrogatories, and to be restrained from confefling judgments, &c. to creditors of teftator, and the custody of the infant taken from him. Fin. Rep. 351. Pafch. 30 Car. 2. Corcellis v. Corcellis.

2. A. bequeathed fome legacies, and adds, I give the rest of my goods and chattels to my executors, and afterwards I give to my executors the fum of 100l. a-piece for their care and trouble, and after my debts and legacies paid, I give all the rest of my perfonal eftate to the children of C. the money to be paid into the hands of C. and makes C., D., and E. executors. Decreed the children of C. to have the intire refiduary eftate, because 100l. a-piece was bequeathed to the executors, and decreed the refidue of the money to be paid [408 into C.'s hands according to the will, and the reft of the perfonal eftate to be delivered to the children. Vern. 30. Hill. 1681. Fane v. Fane.

Vern. R.

the tuftator

3. Mortgagee in fee-fimple devifed 100l. and other legacies, and 412. S. C. then devifed 100l. to H. whom he makes executor; it was strongly bequeathed urged that the executor was limited to the 100l. and the rather because his legacy was exprefsly willed not to be paid till after debts and other legacies paid, yet Jeffries C. decreed the mortgage as well as to to the executor, though the lands was defcended to the heir. the executor, 2 Ch. Cafes, 187. Mich. 2 Jac. Canning v. Hicks.

a particular legacy to the heir

4. A. makes B. and C. his executors, and devised to them 201. a-piece, and alfo devifed to them Sool. in truft for payment of annui ties to L., M., and N. for life, far exceeding the intereft of the 800l. and devised the furplus to his nephews D. and E. to be equally divided between them, and appoints his executors to lay out the

fame