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AN Executor is he that is named and appointed by the Testator, to be his successor in his stead to enter, and to have his goods and chattels, to use Actions against his Debtors, and Legacies, so far as his goods and chattels will extend.
Where two Executors are made, and one doth prove the Will, and the other doth re∣fuse,
notwithstanding he that refuseth may administer at his pleasure, and the other must name him in every action, for every duty due to the Testator, and his release shall be a good barr: If he do survive he may administer, and not the Executor of him that died; but otherwise if all had refused.
If one prove the Will in the name of both, he that doth not administer shall not be charged.
If the Executor do once any action that is proper to an Executor, as to receive the Testators debts, or to give acquittance for the same, &c. he may not refuse.
But other acts of charity or humanity, he may do; as to dispose of the Testators goods about the Funerall, to feed his cattell least they perish, or to keep his goods least they be stoln, these things may every one do, without danger.
When Executors do bring an action, it shal be in all their names, aswell of them that do refuse, as of other,
But an action must be brought against him that doth administer only, and he which first cometh shall first answer.
An Executor of an Executor, is Executor to the first Testator. And shall have an action of debt, accompt, &c. or trespass, as of the goods
of the first Testator carried away, and execu∣tion of Statutes and Recognizances, &c. St. 25. Ed. 5.
The title and interest of an Executor, is by the Testament, and not by the Probate, but without shewing it, they may release the Probate.
The Justices wil not allow them tosue actions.
The Executor shall have the wardship of the Body and Lands of the Ward in Knights ser∣vice, but not in Soccage, and Leases for years, and rent charges for years, Statutes, Recog∣nizances, Bonds, Lands in Executions; Corn upon the ground, Gold, Silver, Plate, Jewels, Money, Debts, Cattell, and all other goods and Chattells of the Testator, if they be not devised, and may devise them; But if he do will omnia bona & Cattallasua, the goods of the Testator pass not, neither shall they be forfeited by the Executor.
An Executor is chargeable for all duties of the Testator that are certain; but not for Trespass, nor for receipt of rents, nor for oc∣cupation of Lands, as Bailiffe or Guardian in Soccage, &c. For this is not any duty cer∣tain so farr as he shall have Assets; If the Executor do waste the goods of the Testator, he shall pay them of his own.
An Executor shall not be charged, but
with such goods as come to his hands, but if a stranger take them out of his possession, they are assets in his hands.
If an Executor take goods of another mans amongst the goods of the Testator, he shall be excused of the taking in Trespass.
Duties by matter of record shal be satisfied before duties by specialty, and duties by specialty before charges, and Legacies before other duties.
An Executor may pay a debt or credit of some kind, depending the writ, before notice of the action, but not after notice or issue joy∣ned.
An Executor may pay debts with his own money, and retain so much of the Testators goods, but not Lands appointed to be sold.
Any of these words, debere, solvere, recipere, borrowed, or any word that will prove a man a debtor or to have the money; If it be by Bill will charge the Executor, or Administra∣tor, but not the Heir, if he be not named.