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leases for years, wardships, or extents, and all right concerning those things.
These executors may meddle with the goods and dispose them before they prove the will; but they cannot bring an action for any debt or duty belonging to their testator before they have proved the will.
The proving of the will is thus. They are to exhibit the will in the Bishop's court, and bring the witnesses thither, and there they are to be sworn; and the Bishop's officers do keep the original will, and certify the copy thereof in parchment under the Bishop's seal of office; which parchment, so sealed, is called the will proved.
9. By letters of administration property is thus gotten. When a man possessed of goods dieth without any will, there such things as executors should have had if he had made a will were by the ancient law to come to the bishop of the diocese, to dispose for the good of his soul that is dead, he first paying his funeral and debts, and giving the rest in pios usus. This is now altered by statute laws; so as the bishops are to grant letters of administration of the goods at this day to the wife if she require it, or to children, or next of kin; if they refuse it, as often they do because the debts are greater than the estate will bear, then some creditor or other will take it as the bishop's officers shall think meet.
It groweth often in question what bishop should have the right of proving wills, and granting administration of goods. In which controversy the rule is thus: that if the party dead had at his death known goods of some reasonable value, called bona notabilia, in divers dioceses, then the Archbishop of the province where he
died is to have the probate of his will, or to grant the administration of his goods, as the case falleth out; otherwise, the bishop of the diocese where he died is to do it.
If there be but one executor made, yet he may refuse the executorship, coming before the bishop, so he have not meddled before with any of the goods, or with receiving debts, or paying legacies.
And if there be more executors than one, so many as list may refuse; and if any one take it upon him, the rest that once did refuse may take it upon them when they will. And no executor shall be further charged with debts or legacies than the value of the goods come to his hands, so he foresee that he pay debts of record first, namely, debts to the King, then upon judgments, statutes, recognizances; and then debts by bond and bill sealed, or for rent unpaid, or servants' wages, or payment to head workmen; and, lastly, shop-books, and contracts by word. For if an executor or administrator pay debts to others before debts to the King, or pay debts by bond before those due by record, or pay debts by shop-books or contracts before those by bond, arrearages of rent, and servants' or workmen's wages, he shall pay the same again to those others in the said degrees.
But yet the law giveth them choice, that where divers have debts due in equal degree of record or specialty, he may pay which of them he will before any suit brought against him; but if suit be brought he must pay him that first getteth judgment against him.
Any one executor may convey the goods, or release debts, without his companion; and any one by himself may do as much as all together; but one man's releas
ing of debts or selling goods shall not charge the other to pay so much of their goods, if there be not enough besides to pay debts; but it shall charge the party himself that did so release or convey. But it is not so of administrators, because they have but one authority by the Bishop given them over the goods, which authority, being given to many, is to be executed by all of them joining together.
And if an executor die making his executor, this second executor is to be executor to the first testator. But if an executor die intestate, then his administrator shall not be executor or administrator to the first; but in that case the bishop, whom we call the ordinary, is to commit the administration of the first testator's goods to his wife, or next of kin, as if he had died intestate; always provided, that that which the executor did in his lifetime is to be allowed for good. And so if an administrator die, and make an executor, this executor of the administrator shall not be executor to the first intestate; but the ordinary must new commit the administration of the goods of the first intestate again.
If the executor or administrator do pay debts or funerals or legacies of his own money, he may retain so much of the goods in kind of the testator or intestate, and shall have property of it in kind.
10. Property by legacy is where a man maketh a will and executors, and giveth legacies. He to whom the legacy is given must have the assent of the executors, or one of them, to have his legacy; and the property of that lease, or other goods bequeathed unto him, is said to be in him: but he may not enter nor take his legacy without the assent of the executors, or one of them; because the executor is charged to pay
debts before legacies; and if he assent to legacies, he shall pay the value thereof of his own goods if there be not otherwise sufficient to pay the debts.
But this is to be understood of debts of record to the King, or by bill or bond sealed, or arrearages of rent, or servants' or workmen's wages; and not debts by shop-books, or bills unsealed, or contract by word; for before them legacies are to be paid.
And if the executors doubt that they shall not have enough to pay every legacy, they may pay which they list first; but they may not sell a special legacy of a lease or goods in kind, to pay a money-legacy. But they may sell any legacy which they will to pay debts, if they have not enough besides.
If a man make a will, and make no executors, [or if the executors refuse,] the ordinary is to commit administration cum testamento annexo, and take bonds of the administrator to perform the will; and he is to do it in such sort as the executor should have done if he had been named.
1 Omitted in MSS. The whole paragraph would come better under the titles of Executors and Administrators; which, again, are themselves confused.
END OF VOL. XIV.
CAMBRIDGE: PRINTED BY H. O. HOUGHTON.