The reports of that reverend and learned judge, Sir Richard Hutton Knight sometimes one of the judges of the common pleas : containing many choice cases, judgments, and resolutions in points of law in the severall raignes of King James and King Charles / being written in French in his owne hand, and now faithfully translated into English according to order.

Trin. 16 Jac. Wolfe versus Heydon.

London.

THomas Wolfe Administrator of the Goods and Chattels of John Aldrich, durante minore aetate of Edward Aldrich, William Al∣drich, and other Children of the said John not administred by John Tal∣bot, Executor of John A, or by Robert Armiger late Administrator of the said Goods and Chattels during the minority of the said Children not administred, brought an action of Debt against Simon Heydon, and count upon an Obligation of fifty pounds, wherof ten pounds was satisfied to John Aldrich in his life, and counts that John Talbot was made his Executor and died; and that the money was neither paid un∣to the said John Aldrich the Testator in his life, nor to John Talbot the Executor in his life, nor to the said Robert Armiger late Admini∣strator of the Goods and Chattels of the said John Aldrich, during the minority of the Children; and he produce Letters of Administration, and aver that the Children were within the age of seventeen years. The Defendant plead in Bar, that the said Aldrich before this Writ purchased, viz. such a day at S. in the Parish, &c. made his Will and constituted John Talbot his Executor, Qui suscepit onus inde, and ad∣ministred divers Goods as Executor, and after, viz. such a day, the said John Talbot made Benjamin Roblet his Executor, and died, and

Roblet suscepit onus testament, and did administer, and demand Iudg∣ment si actio, &c.

The Plaintiff reply and confesse that John Aldrich made John Tal∣bot his Executor, and that he administred and made Roblet his Exe∣cutor: But he saies, that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiasticall Law; and that the said Benjamin before that he took the charge of the Testament of John Talbot renounced before the Ordinary to be Executor of the said John Aldrich, or to administer any of the Goods which were the Goods of the said Iohn Aldrich, or to have any thing to do therwith: And ther∣upon the Defendant demurs, and Iudgment was given for the Plain∣tiff.

And in this case the Court well agrees with the replication, for he was Executor before probate, to pay Debts and to be sued, but not to have an action, though that originally the probate was temporall: and it is no plea in our Law, scil. that he did not prove the Will, but that he was not Executor: And of late times our Law for the encreasing of the credit, and for the inforcing of the Probate, do disallow actions brought before the Probate, vide the Case upon which it was princi∣pally insisted, 22, 23 Eliz. Dyer 272. a. Isted against Stanley; If an Executor dies before Probate, and if the residue of the Goods be devi∣sed to him, then Administration shall he committed to his Executor, or otherwise to the next of the blood of the first Testator, for now he dies intestate: And although it be one dying intestate of the first Te∣stator in Law, yet if being the reall and speciall matter it agrees well with his Writ, and is matter in Law, scil. to some purposes he dies intestate, and to others not, for he had power to release, to pay Debts, and to take a release, vide Dyer 367. a, It seems that his Exe∣cutor shall have his Legacy. But the Count is cu••bred with the Ad∣ministration committed to Armiger, and it doth not appear how it was dischrrged, for it is only that the money was not paid to him late Administrator, and it is good, and the action is brought according to the Letters of Administration to him, which were of the Goods not administred by John Talbot, nor by Armiger which was Admini∣strator.

Notes

• Debt.
• To what in∣tents a man shall be said Executor be∣fore he prove the Will.