Of the relation betweene a Will and an Executor .

AS to the first , the very name of Executor purporteth in the generall , one that is to execute somewhat , or to whom the execution of somewhat is committed , or recommended . In our particular therefore , an Executor of a Will must needs be such an one to whom the execution and performance of another mans Will after his death is commended , or committed : Or who is constituted and authorised by the Testator , or Will-maker , to doe him that friendly office . Hence it followes necessarily , that a Will is the onely bed wherein an Executor can be begotten or conceived , for where no Will is , there can be no Executor . And this is so conspicuous , and evident to every low capacity , that it needs no proofe nor illustration . On th' other side , though much be written in name of a Will , many Legacies bequeathed , and many things appointed to be done : Plowd . eom . 1851 a. in Wood● . and Darcies Cases , so expresly said . Yet if no Executor be named , here is no Will ; for these two be so relative , and reciprocall , as that one cannot be without th' other ; if no Will , no Executor ; if no Executor no Will . Yet here two Cautions are to be affixed . Testamentum quasi testatio mentis . 1. That a mans minde , will , and intent , touching the disposition of his goods , being declared , although for want of naming an Executor he die intestate , so as Administration is to be committed : Yet for that here is not onely an inchoation or inception of a Testament , but so farre a progression therein , as Testatio mentis , that is , the manifestation of the pa●ty deceased and owner of goods ; therefore this minde and intention of the Intestate being notified and made knowne to the Judge , who is to commit Administration , is usually annexed ( as I take it ) to the Letters of Administration , and meete so to be , as a direction , for , and to the Administrator ; as well as the Will fully , and perfectly made , but refused to be proved by the Executor , which is usuall . Another Caution is , That where a man seised of Land in Fee-simple , disposeth the same , or part thereof by his Will in writing , this standeth good for the whole or part , according to the difference of Tenure , although no Executor be named ; so as the party dieth Intestate , and Administration is to be committed as touching his goods , and yet hath a Will as touching his Lands . This may seeme strange , that the reason thereof is an Act of Parliament , inabling to dispose of Land by Will in writing . And for that Land , is not properly Testamentary , neither hath the Executor ( if any be ) anything to doe or intermeddle therewith ; and therefore is the making or not making of an Executor , nothing pertinent to the validity or invalidity of this devise or disposition of Land by Will . So , as though where there is not Testatio mentis , there is not Testamentum ; yet may there be the first without the later .

Having seene that bequests of Legacies without making of Executors , doth not amount to a Will. Let us now consider , whether the sole making of Executors in the name of a Will , without giving any Legacie , or appointing any thing to be done by his Executors ? Whether I say , this be , or amount unto a Will or not ? Since hereupon the matter nothing is willed , and consequently nothing rests to be executed by the Executors , whose Office , as hath beene said , is to execute the Will , Minde , and Intent of their Testator , and Vbi non est Testatio mentis , Summ. Silv. fo. 32. b. non est Testamentum , saith the Cannonist . For answer hereunto , confessing that indeede to be the Office of an Executor ; I yet conceive confidently , that in the Case above put , there is a good Will and as a Will , it is to be proved and approved , for these Reasons . First , for that the maine and principall part of an Executors Office , and that which most concernes the soule of the Testator ( as our Bookes speake ) is the payments of his debts . Now , who knowes not , but that the very making of an Executor , is the constituting of such a person , who is to pay all debts ; and for that cause and end , principally is to have , and enjoy all the goods and chattels of the Testator , and all summes of money to him owing , as the naming of A. and B. Executors is by implication a gift , or donation to them of all the goods , chattells , credits , and personall estate of the Testator , and the laying upon them an Oligation to pay all his debts , and making them subject to every mans sute and Action for the same . And if the Law speake thus much sense ; Quod necessario subintelligitur non deest ; What neede then the party expresse it in his Will ? If hee had willed more than this , as to have given this or that in way of Legacy , it had beene needefull for him , so to have set downe in his Will , but there is no meere necessity that every man should give Legacies : the estates of many will not doe more than pay their debts , nor oft-times so much , so as if they should give any Legacie , it must bee a dead and void gift . And suppose a man have much more , and intendeth all to his wife , brother , or sister , or other friend , his debts being by such person , paid since the very making of that party Executor , without any more , amounteth to thus much , and effecteth this ; what needeth then more words ? Frustra fit per plura quod fieri potest per pauciora ; as we often speake touching legall passages ; It is needlesse to write foure lines where two be sufficient . Nor is Testatio mentis here wanting ; since the Testator hath made knowne who should have the Administration of his goods for payment of his debts , and it is to be presumed he had no more speciall Will ; since hee did not declare more , but left his Executor further to have and doe , Prout lex postulat : And who can say here is nothing to execute ? Is the suing for , and collecting of debts due to the Testator , and the payment of debts owing by him nothing ? Nay , it is rather in hoc negotio , the Vnum necessarium . Besides , the making of an Executor is a designment , of a person to be the Testators assigne to whom , and by whom divers , things may be feasible by vertue of covenants , bonds , or other assurances , as after where we come to shew how the Executor represents the person of the Testator will appeare . Also of one , who , as our Bookes often speake , is to dispose the Testators goods for the best advantage of his soule , but insteede of that ( since as the tree falleth so it will lye or rest ) I will say , as is most for the honor and reputation of the Testator .

Of the kinds of Wills .

NOw Wills are of two kinds , or may be two wayes made , viz. either by writing , or Nuncupative ; that is , by words not put in writing , 4. H. 6. 1. 10. 8. 4. 1. during the Testators life : for after the Testators death , If it be written and brought to , and approved by the Testator in his life , it is a Will in writing . this Verball Will must be reduced to writing , and have the seale of the Ordinary , or Judge spirituall thereto affixed ; and then is it as effectuall , and of as good validity as if it had beene in writing in the Testators life time ; 14. H. 6. 5. vide 5. H. 5. 1. M. 15. & 16. Eliz. and so doth the Common Law allow and approve thereof . But I advise all to make Wills by writing , and not to leave them to the doubtfull fidelity , or slippery Memory of witnesses : for , as of Leases Parroll hath beene said , that they be Leases perjured , or of perjury :

So of Wills Parroll may be feared . Besides , many times a man doth speake and declare this or that , as part of his Will , which his wife , child , or friend disswading , he letteth that purpose and part of Will to fall , & departs from it : Yet witnesses wishing it to stand , will perhaps affirme it as part of the Will. As for a Will , gift , and disposition of Land of inheritance , if it be not fully written before the death of the Testator or Doner , so farre ( at least ) as concernes the disposition of Land , it cannot be for that part made good , by reducing it to writing after his death , as for goods and chattels it may . Yet if it be written before the death of the Testator , though it never be brought to him , or reade to him , after the writing thereof , it is good enough : and that not onely for Land , 〈…〉 Dy. 72 ▪ as the Case in King Ed. 6. his time was , but also for goods and chattels , so as there be an Executor named . But whether shall wee say , that this is a Will Nuncupative or in writing ? And surely I thinke , that this is a Will in writing , and not verball only , though it want subscribing ; for wee know , that many cannot write their names , but onely markes , and what is that ? Nay , suppose one want hands , and cannot write so much as his name ; yet doubtlesse this man may make a Will in writing , that being written by his direction , as his Will which he dictated : nor is the subscribing of the name of the maker , any essentiall part of a Deede , much lesse of a Will , which needes not sealing as a Deede doth . Now put we the case on the other side , that many Bequests or Legacies be named in a Will , and many things expressed to be done , but no Executor is named in the writing , onely by word of mouth , A. and B. be named Executors . This I thinke confidently is no Will in writing , but Nuncupative onely ; for that one essentiall part of the Will , viz. the making of Executors , is wanting in the writing . Nay , the appointing of him Executor , who is named in a note , left with A. B. is no sufficient making of an Executor , saith the Summist . Tit. de Testim Summ. Silv. fo. 443. b. And of such Nuncupative Will , Master Perkins reasonably saith , that it properly hath place , So if he survive and live long time , not causing it to be a written , or attested by witnesses ; me thinkes it should not stand as his Will. when one suddenly taken with sicknesse violent , dares not stay the writing of his Will , for feare of prevention by death ; and therefore prayes his Curate and others , to witnesse what his Will is . To this Will not written , there must be seven witnesses , and such as come not by chance ; but are especially called for that purpose , Idem supra fol. 444. b. saith the Summest .

What shall amount to a making one Executor , or what words requisite thereunto .

HAving before made it to appeare , that the being of an Executor , is an essentiall part of a Will , and so de esse , and not bene esse , onely of a Will or Testament . Let us now see , First , by what words an Executor may be made . Secondly , De modo , In what manner it may be done . How the power and authority of Executors may be limitted or divided . As to the first , though one do not expresly by Will , name or appoint any to be Executor : Yet if by any words or circumlocution , he recommend or commit to one or more , the charge and office which pertaines to an Executor , it amounts to as much as the ordaining or constituting of him or them to be Executors . As if he declare by his Will , that A. B. shall have his goods after his death to pay his debts , If A be made Executor , and to him and D. some goods be divi●ed to dispose for his soule , D. is by this an Executor for these . and otherwise to dispose at his pleasure , or to that effect . By this is A. B. made Executor , as was conceived by the Judges , in the late Queenes time . And long before that , 39. H. 6. 27. b. ●8 . M. 15. & 16. Eli. 21 , H. 6. 6. 7. was it held , that if one doe onely Will that A. B. shall have the Administration of his goods , he is thereby made Executor . Yea , in the said late Queenes time , one giving divers Legacies , and then appointing that his debts ; and Legacies being paide , his wife should have the residue of his goods ; so that she put in security for the performance of his Will. By this without more , was shee an Executor , as was held by three Iust. viz. Manwood , Harper , and Mounson , in the Lord Dyers absence . And so also where an Infant was made Executor , and A. and B. Overseers , with this , that they should have the rule and disposition of his goods and payment , and receipt of debts , untill the full age of the Infant ; by this were they held to be Executors in the meane time . And if A. be made Executor , and the Testator after in his Will , expresseth that B. shall Administer also with him , and in aide of him : Here B. is an Executor as well as A. and if A. refuse , B. alone may prove the Will as Executor ; notwithstanding it be onely said , that he shall Administer with A. and in aide of him . Thus many wayes , and by divers words of implication , and may be made Executor , although not expresly so named by the Will. But if A. be made Executor , and B. a Coadjutor , without more , Hee is not by this an Executor with A. as in King H. 6. his time was held , nor hath such Coadjutor , 21. H. 5. 6. 7. or an Overseer any power to Administer , or intermeddle otherwise , 21. H 6. 6. than to counsell , 34. Ed. 3. F. Exe. 121. 29. Ed. 3. 39 perswade , and advise ; yet I thinke hee may , and in conscience should so doe ; and if that will not prevaile to rectifie negligences , or miscarriages in Executors , hee shall well performe the trust reposed in him , if he complaine in the Spirituall Court , or Court of Conscience ; and it is reason , as I thinke , that so doing upon just cause , his charges be borne out of the Testators state , or the Executors purse , who otherwise would not be reformed .

How an Executor , or his Executorship may be limited or qualified in speciall manner , different from the generall .

NOw let us see how this making of an Executor may be specially qualified . And first the time may be limited , when he shall begin to be Executor , and that , either certainely , or with some reference to contingencie . Secondly , the creation may be conditionall . Thirdly , it may be partiall , or dividedly , and not entirely .

As to the first , Vide Gresbroke and Foxe Plowd . one may appoint lo. At. to be his Executor a yeare or more time after his death , A. and B. made Exec. but ought not to meddle during the life of A. and good . 32 H. 8● 〈◊〉 . 115. and this is good . So also , if A. appoint B. his sonne to be his Executor when he shall come to his full age ; and in the meane time he dieth Intestate . Againe , one may make and appoint the Executors of A. to he be his Executors ; and then if he die before , A. is Intestate , untill A. die . This creation may also be conditionall , and the condition may either be precedent or subsequent . In the time of King H. 6. one named A. and B. his Executors ; 3. H. 6. fo. 6. and if they would not take it upon them , then C. and D. should be his Executors : and then there A and B. refused ; and the question was , whether in sute against the debtors of the Testator , A. and B. should joyne with C. and D. as where foure Executors being named , and two refuse , and the other two prove the Will , yet all foure must be named in sutes against the Testators debtors , as was there admitted . But in the principall case it was resolved that the sute should be onely in the name of C. and D. for that the appointing of them to be Executors , if A. and B. refused did imply , that then they onely should be Executors . And here all foure were never made , nor intended to be Executors , but A. and B. upon a condition subsequent that they should not refuse : and C. & D. upon a condition precedent , viz. if A. & B. did refuse . It is usuall to make one or more Executors , conditionally , that they put in security to pay Legacies , or in generall to performe the Will ; nor was it ever doubted , as I thinke , but that this was good : yet I should advise , that such condition be plainely thus expressed , viz. either thus ; that if I. S. doe put in security , &c. by such a day , that then hee shall be Executor , else not : or thus , viz. to make him Executor conditionally ; that before he doe Administer ( Funerall perhaps excepted ) hee shall put in such security ; else perhaps he being Executor till the Condition broken , in that meane time may have disposed of all , or most part of the Testators estate . In the late Queenes time , there was a Case remarkeable to this purpose : One Willed , P. 33 , Eli. Alce Francis her case . that if his wife suffered I. S. to enjoy Blackeacre ( being belike part of her Joynture ) for three yeares , then she should be his Executor , or else A. B. should ; and the question was in the Common Plees , whether presently before th' end of the three yeares , shee were Executor , or not till shee suffered the Land to be enjoyed three yeares : and it was held by all the Judges , but the Lord Anderson , that she was presently Executor , untill she should disturbe I. S. &c. for upon that done ; it was agreed , that the Executorship , would , by vertue of the Condition be transferred from the wife to A. B. But now during these three yeares might she have disposed of all the goods of her husband ; yea , within one of these three yeares , and lesse time , and then have broken the Condition , and have left to A. B. a dry Executorship .

Now to the third Point , one may divide his Executors power three wayes , 19. H. 8. 3● ▪ viz. Really , Locally , 19. H. 8. Dye● . 4. Hill . 33. Eliz. in Com. b. or Temporally : Really thus . Hee may make A. his Executor for his plate and housholdstuffe : B. for his sheepe , and cattle , C. for his Leases and states by extent , D. for his debts due to him , and so divide the power and Administration of his Executors at his pleasure . 32. H. 8. Br● 115 He may divide them also , or their power Locally , viz. A. for his goods in Com. Buck. B. for those in Com. Oxon. and C. for those in Com. Berk. He may also divide them in time ; viz. his wife , or any other person to be Executor during her life , or during the minority of his sonne , or so long as shee continues widdow , and after his sonne to be Executor . So of like limitations , or divisions , either for time , place , or things , wherewith they shall intermedle . Nay , doubtlesse one may be made Executor for one particular thing onely , as touching such a Statute , or Bond , and no more ; and thereof good use may be made , as I thinke , thus . Many have Bonds , Statutes , and Recognizances , for warranty or enjoying of Land , or freeing , or saving harmelesse from incumbrances in generall or particular : Now he which hath these , selling the Land , may by Letter of Attorney lawfully assigne them to the party who buyeth the Land or Lease ; but this notwithstanding , the interest remaines in him who selleth , and by his outlawry , they may be forfeited or by him released any Bond to the contrary notwithstanding ; and if he dye , the interest in Law will be in , and goe to his Executors , and in their names ; onely Sute or Execution may be had and maintained . Qu●e . If not Assets in Law when obtained .

Now then , if the Vendor , besides assignement make as to this Statute , Recognizance , or Obligation , onely the Vendee Executor ; By this , the interest , after death of the party , will be in him actually and really to his more safety , since none but hee can release or discharge , nor any other name neede to be used to sue , or take benefit thereof . But Quaest. If the Vendee , his Heires and Assignes may be made Executors , so as that securitie , shall go to them one after another without renewed , making of Executors . Thus if the party make no other Executor , he dieth Intestate , as to the rest of his estate , and as to this specialty onely , shall have an Executor , and must have a Will proved : and incase he doe make another Will for his state residue ; there must be two Wills proved . But in th' other case where by one onely Will , one is Executor for one part of the estate , and another for another ; there being but one Will to be proved , one proving of it sufficeth . And though in the premises of a Will two be made Executors joyntly and equally ; yet there may be a Proviso , 32. H. 8. Br● . Exec. 155. that one shall not meddle during th' others life , so as they shall be Executors successively , and not joyntly ; and thus also to other purposes aforesaid , a subsequent cause or Proviso , may make the partition and division of authority . But if the Proviso or clause subsequent , be meerely contrary to the Premisses , it wil be void ; as where two were made Executors , 19. H. 8 , Dy. 3. ● . with a Proviso , or cause , that one of them should not Administer his goods . This was held voyde for repugnancy by Brudnell and Englefield Justices . But Fitzherbert Justice was of minde , that it was not voyd , nor utterly repugnant . For the other might joyne in sutes , though not Administer ; and Justice Shelley was of a third opinion different from all the rest , viz. that here was a repugnancy ; but the last clause should controll the Premisses , and so this one onely should be Executor .