refufe by parol; declared fo by Dr. Ford to the juftices. Cro. E. 92. pl. 21. Hill. 30 Eliz. C. B. in cale of Broker v. Chater. 12. If executor administers and after refufes, and the ordinary not knowing of the adminiftration accepts the refufal and grants adminiftration, it was thought that the ordinary might revoke the adminifiration upon its appearing to him that executor had administered, and might inforce the executor to proceed to prove the will. Went. Off. Ex. 39 Went. Off. Et. 38. 13. If upon procefs against the executor to come in and prove the will, and he does not come in, he may be excommunicated; but if he comes in and will not prove the will, the ordinary upon fuch refufal may commit adminiitration. Went. Off. Ex. 37. 14. An executor commanded one to take the goods, and after the executor refufed before the ordinary who granted adminiftration, and the adminiftrator fued the perfon that took the goods, who juftified by the executor's command, and it was held good. Vent. 304. Hill. 28 & 29 Car. 2. B. R. cites 36 H. 8. 6. quod fieri non debuit factum valet, and that it might be that the ordinary did not know of the executor's intermeddling at the time when he admitted his refufal. 15. It was held per Curiam, that if a term for years of lands be devised to executors in truft for payment of debts, if all the executors rensunce, &c. and will not convey over to others, to the end that they may execute the truft, that the trust and term for years are both loft; ex relatione Magiftri Shelley. Ld. Raym. Rep. 740. Mich. 8 W. 3. B. R. Anon. 36 H. 6. fol. 7, 8. and fays, that perhaps S. C. but 16. Teftator as an encouragement to his executors (who were 2Vern. 737. four) to accept of the truft and executorship, gave to each 100l. pl. 646. and 121. a-piece for mourning, and to each of them a ring, and 10l. S. P. does for their trouble. Ld Chancellor faid, that the refufing executors not appear. hould have their rings and mourning, which were intended them Chan. immediately, but not the 100l. or 10l. annuity, and that renouncing executor's fhare fhould not go over to the other executors, but fink for the benefit of the eftate. Wms.'s Rep. 333. Hill. 1716. Humberston v. Humberfton. Prec. 455. pl. 291. S. C. but S. P. does not appear. -Gilb. Equ. Rep. 128. S. C. in totidem verbis with Chan. Prec. 17. Gne devifes that his executors fhould fell his land, and leaves two executors, one whereof dies, and the other renounces, and adminiftration is granted to A. who brings a bill against the heir to compel a fale; it was objected that the renouncing executor, in whom the power of fale collateral to the executorfhip is vefted, ought not to be made a party. But the objection was over-ruled. The reporter adds a quære. 2 Wms.'s Rep. 308. Mich. 1725. Yates v. Compton. defcends to the heir at law, and he is only a trustee to the ufe of the will fince the executors renounce, fo no occafion to be parties. Went. Off. 1. (S. b) Refufal. DEBT EBT against executor, who faid that the administration was committed to him by the ordinary, and fhewed in certain, &c. by which he administered, but not as executor; judgment of the writ ; the plaintiff faid that before fequeftration of the bishop, and before the adminiftration committed, the defendant proved the teftament before W.T. and adminiftered as executor of the goods of the deceated, abfque hoc that the deceafed died inteftate, and did not shew what goods be adminiftered, nor in what place, and fo it feems that he who adminifters as executor cannot relinquish it and take the administration; contra it feems to be of him who adminifters de fon tort demefne, as in 21 H. 6. 8. Br. Executor, pl. 107. cites 1 E. 4. 2. 2. If the executors adminifter they cannot refufe after; quod Br. Executors, pl. 90. cites 9 E. 4. 33. nota. 3. And it is faid there, that Mich. 19 H. 6. debt against an executor, who faid that the adminiftration was committed to them before the writ purchafed, and fo are adminiftrators; judgment of the writ; and the plaintiff faid, that after the death of the teftator, and before the adminiftration committed, the defendant administered, &c. and upon this they were at iffue, and therefore it feems that he cannot refufe after. Ibid. 4. Two executors were jointly made in a will; one of them releafes a debt due to the teftator, and after, before the ordinary refufes to adminifter; and it was agreed by all the justices that the release was adminiftration, and for that he has made his election, and then the refufal comes too late, and fo is void. 2 Brownl. 58. Hill. 8 Jac. C. B. Wickenden v. Thomas. 5. A mandamus was prayed to the ecclefiaftical court to grant the probate of the will under feal, &c. The cafe was, the executor named in the will had taken the ufual oath, and then refufed, (but after a caveat entered,) and another endeavoured to obtain letters of administration. The executor came afterwards to defire the will under probate, and contefted the granting of administration, which was adjudged against him, fuppofing that he was bound by his refufal; and after an appeal to the delegates this mandamus was prayed and granted by the Court, for having taken the oath he could not be admitted to refufe, and the ecclefiaftical court had no further authority, and the caveat did not alter the cafe. Vent. 336. Pafch. 31 Car. 2. Anon. [419] (T. b) Refufal by one Executor where there are more. The Effect thereof. I. IF he who proves the teftament dies, there the other who refufes and furvives may have action. Br. Executors, pl. 117. cites 21 E. 4. 24. per tot. Cur. 2. If A., B., and C. are executors, and A. only refufes, and B. and C. prove the will, yet A. is ftill executor and may release debts, and releases may be made to him, and may adminifter afterwards when he pleafe. Went. Off. Ex. 41. v. Ld. Petre, S. C. held 3 Several executors were named in the will, and one refused, and 1Salk.311. the other acted, and those that acted died, and adminiftration was compl. 15. 19 December mitted to F. S. before any refufal by the furviving executor. The ad- 17:1. Houfe miniftration was held to be void, because the furviving executor and Downs might, notwithstanding his former refufal, have taken upon him v the executorship; and afterwards on another refufal before the accordingly; ordinary by the furviving executor, adminiflration was committed to but that the Ld. Petre, and was held to be good, and upon that title he maintained in B. R. an action of trover for a jewel. Salk. 307, 308. per Holt Ch. J. in delivering his opinion, cites it as before a commiffion of delegates in Serjeant's Inn in Ld. Petre's cafe. 4. Where there are two executors and one renounces, he is fill at liberty to accept the executorship; otherwife where both renounce, though in this matter the common lawyers differ from the civilians, the latter holding that a renunciation once made, though only by one of them, is peremptory. 3 Wms.'s Rep. 251. Pafch. 1734. Robinson v. Pett. the civilians heid, that by the civil law a renunciation is peremptory. (U. b) Refufal by one. Pleadings. • DEBT against adminiftrator, and counted that the adminiftration was committed to him by the bishop of Sarum at B. in the county of W. The defendant faid, that the bishop bailed the letters of adminiftration to him, and that he faid that he would be advifed by three days, and fee the goods of the inteftate, and fo he did, and returned the third day and refused to take the charge, and re-bailed the letters, abfque hoc that he adminiftered in any other form, and no plea; for he confeffes no adminiftration; therefore he ought to fay that he did not adminifler. Br. Administrator, pl. 31. cites 37 H. 6. 27, 28. 2. But it is a good plea that the administration was committed to the plaintiff and one 7. S. who was not prefent, and that the defendant faid that he would take the adminiftration if the other would agree, and after the other difagreed; this is a good plea with a traverse ut fupra; for this was conditionally, for he cannot traverse in other manner if he does not confefs any manner of administration, as about funerals, or that she was the wife of inteftate, and took her neceffary apparel to her body, abfque hoc that the administered in another manner, for there is adminiftration confeffed, but not fuch adminiftration as fhall charge; quod nota per opinionem Curiæ. Ibid. 3. Debt against executor who pleaded refufal, he was com- [420] pelled to fbeau before whom, who faid before his own commiffary; VOL. XI. Hh for for it was the archbishop of Canterbury himself, and then well. Br. Pleadings, pl. 37. cites 9 E. 4. 24. 33. 4. If there are divers executors of one will, and one of them refufes to prove the will, he may plead ne unques executor; per Roll Ch. J. at a trial at bar. Sti. 343. Mich. 1652. Cheefman v. Turner. 2 Freem. Rep. 181. pl.248.S.C. and ruled that who ever gets any of the teftator's eftate into (W. b) Executors or Adminiftrators of Executors or Administrators. What they shall have. 1. THE teftator made A. and B. his executors, and devised that his executors fhould receive the ijues and profits of his lands till his fon and heir be twenty-one, to pay his debts and legacies, and to educate his children. A. died, and fo did B. during the minority of his fon, having first made T. S. his executor. Catline Ch. J. Saunders Ch. B. and Brown and Dyer held, that the executor of B. the furvivor may difpofe of the flues and profits for the purposes mentioned in the will during the infancy of his fon; becaufe it was not only a bare authority or confidence, but an intereft vested in the executor by the devife. Dyer, 210. a. b. pl. 24. Hill. 4 Eliz. Stile v. Tomfon. 2. If an adminiftrator has judgment and dies, his executors cannot have execution of the faid judginent; for none fhall have execution of this judgment, but he who fhall be fubject to the payment of the debts of the first inteftate, which the executors are not; and judgment accordingly. 5 Rep. 9. b. Trin. 34 Eliz. B. R. in Brudenell's cafe. 3. Nota, it was faid that there is a difference between an executor's and an adminiftrator's dying inteftate; that in the first cafe the administrator of the executor fhall have the goods of the firft teflator, especially where it was faid (the residue after my debts, &c. I give, &c.) Sid. 79. in pl. 3. Trin. 14 Car. 2. cites Dyer. But that the adminiftrator of the adminiftrator fhall not have the goods of the firft inteftate unadministered. 4. A. bequeaths a legacy to J. S. and makes B. and C. his executors and dies, B. makes C. and D. his executors and dies; J. S. fues C. and D. for his legacy. D. demurs, for that the furviving executor of A. was only liable to his legacies, and D. being exccutor to one of A.'s executors who died first, and leaving the other executor furviving, was not privy nor accountable for A.'s eftate; this is true in point of law; yet inafmuch as it was his hands, is charged that D. had gotten the eftate of A. the demurrer was overruled, the Court declaring that A.'s eftate in whofe-ever hands, ought to be liable to his legacies, and decreed. Chan. Cafes, 57Trin. 15 Car. 2. Nicholfon v. Sherman. anfwerable for the le gacies. 5. Debt on bond in C. B. against an adminiftrator who wafies goods and dies inteftate, leaving goods to the value of 5001. and debts of his own to that value, a fci. fa. is brought on the new ftatute ftatute against his adminiftrator, and he pleads payment of that 500l. for debts on fimple contracts of his inteftate, and held good, and judgment for defendant, becaufe the wafting is the charge, and that is of no higher a nature, and by that statute he is to be in the fame cafe with his inteftate, and he might have paid his own debts therewith. 2 Show. 485. pl. 447. Mich. 2 Jac. 2. B. R. Britton v. Buckworth. 6. If executor proves the will, his executor fhall be executor to the firft teftator. 1 Salk. 309. Hill. 1 Ann. B. R.. in cafe of Wankford v. Wankford. 7. Tavo executors died, leaving each an executor. It was first decreed that they should be anfwerable only refpectively for the receiptsof their feveral teftators, but upon a rehearing the Court charged each with the whole. Wms.'s Rep. 82. Arg. cites it as twice heard before Ld. Somers. Widmore v. Bond. (X. b) Actions by Executors of Executors. Or against them. And Pleadings. 1. 25 E. 3. Xecutors of executors fhall have actions of debts, acfat.5.cap.5. compts, and of goods carried away of the first teftator's, and execution of ftatutes merchant and recognizances made to him, as the firft teftator might have had, if he was alive; and executors of executors fhall be anfwerable to others for as much as they have recovered of the goods of the firft teftator, as the first executors ought to have danc. [421] As immedi ate execu tor, Pl. C. 4. of Chapman v. The chief purview of was for the actions of account and trefpaís of goods car this ftatute ried away, which exe cutors could not have by the common law, till given by ftatutes and by equity, were not extended to executors of executors, but the action of debt was put into the statute of neceffity, for the law gave it to the executor of an executor before, but to take away the doubt which fome had of it; and fo an executor of an executor may have all actions which the common law gave to the first executors, and fo might have actions of covenant, but if not, they may have all actions which the common law gives to the fift executor, and so may have actions of covenant, and if not they may have it by the equity of the Statute of 25 E. 3. cap. 5. Pl. C. 290. a. b. Trin. 7 Eliz. in cate of Chapman v. Dalton. 2 Inft. 404. S. P. 2. Waste against executor, and because it was brought against the defendant, as executor of the leffee, where he was executor of the exe cutor of the leffee, therefore upon this exception the writ was abated, quod nota. Br. Wafte, pl. 75. cites 38 E. 3. 17. 3. If trefpafs be done to the goods of teflator, in the hands of the executor, if the executor after dies, his executor fhall not have trefpafs for it, but moritur cum perfona. 2 Roll. tit. Trefpats, (0. a), pl. 1. cites 18 H. 6. 22. b. contra. 4. By the common law, executors of executors cannot have action as the firft teftator. Br. Teftament, pl. 1. cites 19 H. 8. 9. 5. Note, where executor recovers, and dies inteftate, and the ordinary commits the adminiftration of his goods and of the firft teftator to 7. S. he fhall have execution as adminiftrator of the teftator, and not as administrator of the executor; per Jenour; for now is the firft teftator dead inteftate; contra per Fitzherbert, for then he Hh 2 fhall |