2 Vern. S. C. he that drew the will {wore that the teftator 26. A. bequeathed 100l. a-piece to his next of kin, and also to J. S. his executor 100l. but makes no difpofition of the furplus; the queftion was, if J. S. or the next of kin, fhould have the furplus? The cafes cited were the Duchefs of Beauford's, Smith v. Ball, Wicket v. Jones, Littlebury v. Buckley, which was first heard in the Mayor's court, and the furplus there decreed to the next of kin; and on appeal to the House of Peers, the executors were admitted to read witnesses to prove that the teftator intended them the furplus, and on that foot the Lords reverfed the decree, 2 Vern. 673. pl. 601. Mich. 1711. Wingfield v. Alkinson. 27. Teftator devifed feveral legacies to feveral perfons, and 736.pl.645. gives a legacy to one of the executors by his chriftian and firname, and his clothes to be difpofed of by his executors, and then adds, as to the 7ool. I am intitled to in the South Sea Company, and the rest of my perfonal eftate, I will that the fame shall be fold for payment of my debts and legacies, and I make John and Thomas Serle my executors, and dies; the teftator had devised 701. for mourning to the children of Mr. Serie, of whom the executors were two, and intitled to their proportion. Lord Chancellor decreed the refiduum to the executors. Abr. Eq. Cafes, 246. Hill. 1716. Batchelor v. Serle. gave no particular directions as to the furplus, but faid the plaintiffs (who were the next of kin) fhould have no more, and he would give no more away. Ld. Chancellor held that the evidence of the drawer falls in with the tenor of the will, and takes away the prefumption that he did not intend the furplus for his executors, and that the prefumption that the teftator did not intend them all, and fome may be ousted by proof of his intention that the executor fhould have the furpius, or that the next of kin should not have it; and the writer proves, that the teftator declared that his fter (the plaintiff) should have no more, and should not have the furplus. -Gilb. Equ. Rep. 125. S. C. decreed accordingly.Equ. Abr. 246, 247. pl. 12. S. C. decreed accordingly. * [413] Equ. Abr. 244. pl. 7. cites S. C.. as Hill. 1097. 28. Sir W. B. devised his perfonal eftate to pay his debts and legacies, and gave 1000l. a-piece to his executors, and it was agreed that the furplus fhould go to the reprefentatives of the next of kin. Chan. Prec. 567. in pl. 346. Trin. 1721. cited by Lord Chan cellor as the cafe of Bristol v. Hungerford. 29. A. made B. and C. executors, and gave them fpecific legacies, and defiring his executors to be kind to J. S. an old fervant, and to give him fome fmall pieces of furniture then in the houfe if he defired it; decreed that the executors fhall have the refidue of the perfonal eftate free from diftribution, it appearing to be the intent of the teftator by the words aforefaid. 9 Mod. 11. Trin. 1722. at the Rolls. Heron v. Newton. 30. An executor hath certainly the whole and entire right to the teftator's perfonal estate both in law and equity, unless upon the face of the will it appears by fome indication that the teftator intended to the contrary, as by giving him a specific legacy; for by fuch a devife it appears, that he intended him no more; and this was laid down as a rule, when the Lord Jeffries was Chancellor, and with good reason, and hath been a ftanding rule in the Court ever fince (with fome little variations and exceptions from the circumstances of cafes) to exclude the executors. 9 Mod. 28. Trin. 9 Geo. in Canc. Hutchinfon v. Vincent. 12 31. Teftator Ld. C. King of parlia ment was 31. Teftator gave legacies to feveral perfons, and devifed to his In this cafe next of kin (his fifter) 100l. a year for life out of his Bank flock, and faid, that the refidue of his Bank flock to his executor (a ftranger and no relation), he could and gave to his executor the furniture of his houfe, and a certain fum of wif money to his fifter the next of kin. Lord Chancellor King held that if the exprefs legacy to the executor be allowed to exclude him of the furplus, by the fame reafon the exprefs legacy to the fifter will bar her likewife; and then here being exclufion against exclufion, the law must take place, and the executor have the furplus as executor. 2 Wms.'s Rep. 338. Hill. 1725. Attorney Gen. v. Hooker, and Somner v. Hooker. it would be well enough. Ibid. 340.would shake many precedents. made to reduce this certainty; for if it point to a were once fettled either way, -The reporter there fays, that Mr. Lutwich faid that this executor has an ex 32. In the cafe of a will though an exprefs legacy be given to When an the executor, yet if a legacy is alfo given to the next of kin, this is equally a bar to the next of kin, as to the exccutor; and there- prefs legacy fore if the furplus be not difpofid of by the will, the executors shall for his care. have it. Qu. 2 Wms.'s Rep. 338. pl. 97. Hill. 1725. Somner v. Hooker, though the next of kin has alfo an exprefs legacy; the furplus fhall go according to the ftatute of diftribution, efpecially if the fur. plus was intended to be difpofed of. 3 Wins.'s Rep. 43. Trin. 1700. Davers & al. v. Dewes & al'. (P. b) Executor Truftee. His Power and Intereft. [414] I. A N executor though a bare trustee, and though there be a refiduary legatee, is intitled to fue for the perfonal estate in equity as well as law, unless the cefluy que truft will oppofe it. Wms.'s Rep. 34. Hill. Vac. 1729. Jones v. Goodchild." 3 2. Trustee cannot change the nature of the eftate by turning money into land, or a leafe for years into a freehold, & e converfo. 3 Wms.'s Rep. 100. Hill. Vac. 1730. Witter v. Witter. (Q. b) Infant Executor. What he may do; and in what Cafes he is bound. that 1. TROVER and converfion of goods by the executors of R. Ibid. fays against husband and wife, of the goods of the teftator, den was which came to the hands of the wife dum fola fuit. The de- frong in fendant pleaded a release of the plaintiff after the death of the opinion teftator, and after the trover and converfion the plaintiff faid he was then within age; it was adjudged, that because there was no confideration alleged for the releafe, it fhould not bind the infant executor, because he would thereby charge himself in a devaftavit. Mo. 146. pl. 289. Hill. 21 Eliz. B. R. Ruffel's cafe. against the judgment; but Wray Ch. J. faid he had con to him, that ferred with all the juf tices of England, and they had agreed to give judgment for the infant; because the releafe being without confideration, the infant would charge himself in a devaltavit.. -5 Rep. 27. a. S. C. refolved accordingly.- And. 177. pl. 212. S. C. refolved accordingly in the Exchequer Chamber.Ibid. is a note that Pafch. 30 Eliz. this judgment was reverfed in error in Cam. Scacc, for other matter in the pleading, but not upon the matter in law. 2. Note, Le. 210. pl. 311. S. C. in totidem 2. Note, it was agreed by the justices in this cafe, that where an infant executor fold the goods of his teftator at less than they were worth; and afterwards brought an action of detinue against verbis, only the vendee upon it in retardatione executionis teftamenti; that this fale of the infant executor was good; and fhould bind him notwithstanding his nonage. 3 Le. 143. pl. 192. Mich. 28 Eliz. B. R. Manning's cafe. it is faid (adjudged) instead of (agreed). Gibb. I. Arg. cites S. C. 3. A. made his wife executrix and died, the wife proved the will and adminiftered, and made J. S. her fon, of the age of 13 years, her executor, and the defendant overfeer and died; the infant proved the will; the defendant with the confent of the infant fold goods to the value of 140l. to the ufe of the infant; it was the opinion of the justices that this was no administration, but a good fale by the executor; for an infant executor is to pay debts, [415] and then he muft fell goods to pay them, and therefore the fale of another by his confent, where it is not to his prejudice, is no administration but good. Cro. E. 254. pl. 25. Mich. 33 & 34 Eliz. B. R. Clerk v. Hopkins. And. 177. pl. 212. S. C. by name of Ruffel v. 4. What an infant does according to the office and duty of an executor fhall bind; as to discharge the debtor for fo much as he receives; but to do any thing that may amount to a devaftavit, as a release without payment, &c. he cannot. 5 Rep. 27. b. Hill. 26 Eliz. B. R. Ruffel's cafe. 5. But an infant executor may make a release upon a true satisfaction, but not otherwise. 5 Rep. 27. b. Hill. 26 Eliz. B. R. Ruffel's cafe, Pratt held accordingly.—S. C. cited Roll. Rep. 366.——S. C. cited per Cur. and agreed for good law. Poph. 130. Mich. 15 Jac. B. R. Gibb. 2. contra. If infant releases where he 6. Though an infant at 17 may adminifter, yet he cannot commit a devaftavit till 21. Per Ld. Keeper. Vern. 328. pl. 323Pafch. 1685. Whitmore v. Weld. has no confideration he shall answer for his own goods, when he comes of age, for the wafting of the eftate, and such release shall be assets. Godb. 30. pl. 39. 27 Eliz. C. B. Kittley's cafe. 7. Debt upon an obligation made to the teftator, the defendant pleaded a release made by one of the plaintiffs; the plaintiff replies, that this release was made without any confideration, and he who released was within age at the time of the release made. It was thereupon demurred; and adjudged for the plaintiff that it was a void release, being by an infant without confideration. Cro. E. 671. pl. 27. Pafch. 41 Eliz. Knot v. Barlow. 8. It was refolved by all the judges, that a release of a debt, or a duty by an infant executor after the probate of the will, without receiving the entire debt, is void, becaufe it fhould be a devaftavit, and charge the infant of his proper goods, and alfo it fhould be a wrong which the infant cannot do by his release, because it is an act not pursuant to the office of an executor who is to do his his office truly, diligently, and faithfully. But upon payment of 9. If an infant executor affents to a legacy, it is not good unless there are other affets for debts, and fo may work a wrong to the creditors; per Ld. Keeper Finch. Chan. Cafes, 257. Hill. 26 ❀ 27 Car. 2. in cafe of Chamberlain v. Chamberlain. 13. Though an infant at 17 may adminifter, yet he cannot commit a devaftavit until 21. Per Ld. Keeper. Vern. 328. Pasch. 1685. Anon. (R. b) Refufal. What is. And How. And the Effect thereof. 1. TR RESPASS by administrators of goods carried away, the defendant faid that the teftator was possessed as of his proper goods, and made J. S. his executor and died, and after the goods came into the hands of the plaintiff, and the defendant by command of the executor took the goods, and after the executor refufed before the ordinary who committed the adminiftration to the plaintiff, judgment; and [416] per Laicon, Prifot, and Moyle, it is a good plea, and the colour is good, for the defendant confeffes poffeffion in the plaintiff, and the power of the adminiftrator by the committing of the adminiftration fhall have relation to the death of the inteftate, and therefore this is matter in law at the leaft, whether the juftification be now good or not, and when matter in law is, there needs no colour; for it is matter in law when the administration is fo committed, whether the adminiftrator fhall have trefpafs of the taking before the committing of the administration or not, and by them the plea is good; for when the defendant had good caufe to justify at the time, &c. it fhall not be loft by the refufal of the executor after, who is a third perfon. Br. Trespass, pl. 222. cites 36 H. 6. 7. 2. The ordinary himself who is made executor may refufe before his own commiffary. Br. Ordinary, pl. 13. cites 9 E. 4. 33. Jenk. 106, 107. pl. 4. S. P. and 3. Where a man makes a teftament and executors, and they refufe, yet the legacies fhall be paid; for no default is in the teftator, and the teftament fhall be annexed to the letters of adminiftration; quod nota diversity. Br. Teftament, pl. 20. cites 37 H. 8. 4. A. and B. executors; A. proved the will, and B. refufed before the ordinary, who thercupon granted the adminiftration to A. who made his executor and died; and that executor alone, without joining B. brought debt against a debtor of the first teftator, and it feemed to Brooke Ch. J. that the action was well brought; for though B. might adminifter at any time during the life of his companion, notwithstanding fuch refusal, yet after his death his Brook Ch. election is gone; for now in law the firft teftator is dead in- J. but fays, teftate. But that in 21 E. 4. 23. the opinion of the Court was, eft lex. cites S. C. -Went. Off. Ex. 41. cites the opinion of quod non that D. 160. b. Marg. cites 9 Pep. 37. Henfloe's cafe, that the fur that the action was not maintainable by the executors of the executors, &c. Ideo quære bene. D. 160. b. pl. 42. Pasch. 4 & 5 P. & M. Ano:. vivor may have action.If H. makes his will and feveral executors, and one of them refufes, but the rest administer, that makes his refufal void, and the refufing executor may notwith.tanding releafe any debt; cites 5 Rep. 28. a. [Middleton's cafe.] And in actions brought by them, the refuiing executor must be named, cites.9 Rep. 97. And if the refufing executor furvives, he may take the executorship upon him. The cafe indeed in Dy. 160. is contrary, and holds that the refuiing executor must come in and act during the life of the acting executor; but the 21 E. 4. 23. is contrary to Dyer, and according to the preceding pofition. And in Hardr. 111. PAWLET V. FREKE, it is refolved that where the refufing executor furvives, adminiftration committed during his life is void; per Holt Ch. J. 1 Salk. 307. Hill. 1 Ann. B. R. in delivering his opinion in the cafe of Wankford v. Wankford. But when the furviving executor is dead inteftate, administration both of the furviving executor, who died inteftate, and of the goods of the former teftator not being administered, may be granted. God. Orph. Leg. 88. Went. Off. Ex. 37. cites S. C. Mo.594.pl. 806. S. C. held accordingly. 5 If debtee named executor fue the ordinary for the debt, this amounts to a refufal of the executorship. Went. Off. Ex. Marg. 37cites Mich. 28 & 29 Eliz. C. B. Brooker v. Carter, and 9 E, 4. 35and Pl. C. 194. 2. 6. If executor neglects probate for a year, this is a refufal irrevocable in the civil law, and adjudged accordingly. Mo. 273pl. 426. Hill. 31 Eliz. Bewacorne v. Carter. 7. Executor refusing, lofes his legacy. Ow. 44. 31 Eliz. Catlin's cafe. 8. If executor refuses to be executor, it shall not hinder him to take by a devife as to an inheritance devised to him. Poph. 8. Mich. 34 & 35 Eliz. C. B. Gibbons v. Maltyard and Martin. 9. If a man libels in the ecclefiaftical court against an adminifrator after refufal of the executorship for a legacy, and he can prove [417] the will by which the legacy was given but by one witness, and therefore they will not allow it, yet no prohibition lies; for by our law there is not any teftament where there is not any executor, and therefore if they will give him relief they may give it in what manner they please. 2 Roll. Prohibition (Q) cites Hill. 37 Eliz. B. R. per Cur. ·Bacon Ld. K. Catlin 10. Debt upon obligation of 100l. against two executors A. and B.-A. was butlarved. B. pleaded that A. was made executor, and folely proved the will and administered, and he as fervant to A. tock divers of the teftator's goods by his delivery, and by his appointment feld them, abfque hoc that he administered in other manner. It was adjudged to be no plea, because he doth not fay he refufed before the ordinary, nor confeffes any adminiftration, and fo no answer to the plaintiff; and judgment for the plaintiff. Cro. E. 858. pl. 27. Mich. 43 & 44 Eliz. C. B., Godfrey v. Woodward. 11. Refufal cannot be verbally, but must be by fome act entered in the fpiritual court, and therefore must be before fome spiritual Ch. J. and the Mafter judge, and not before neighbours in the country. Went. Off. of the Rolls Ex. 37. being named executors, they wrote a letter to the ordinary that they could not attend the executorship, and wished him to grant adminiftration, who did fo and recorded their refufal, and held good. Went. Off. Ex. 37. cites it as Sir Ralph Rowlet's cafe. Ow. 44. 31 Eliz. Sir Robert Rowley's cafe.— By the civil law a renouncing may be as well by matter in fact as by a judicial act, and they may retufe |