case Wangford legatee of Thomas Shelly against Wangford debtor and executor to  Shelly see Seagram v knight l r Ch in re bourn Ch if a obligee make the  obligor his executor it be a release of the debt although be die before  probate grant S c salk S c salk S c holt S c Freem error on a judgement give  in the common plea the case be in short this the obligee make his obligor  executor who accept of the executorship by his administer but die before  probate the question be whether this be a release of the debt the judgement in  the court of common plea be that it be a release upon which a writ of error be  bring here where the judge seriatim give their opinion that the judgement in  the common plea be well give and first gold justice say it must be agree that  if the executor of the obligee have prove the will it will have be a release  and urge that the non probate modern report will not alter the case and he  rely much upon these case which he say be strong in point Edward a Edward she  foe and Plowd Com again he say he be executor to all intent and purpose before  probate a see Plowd     light and the case of parten v Baseden Mod and  middleton case   a save only to the prosecute of action b see salk ld ray Peer  wms Com dig Administration b b and by his once take upon he the administration  he have so bind himself that he can never after refuse c that a executor de  son tort can purge his tortuous act after a action be bring against he by  deliver over the good of which he have take possession to the rightful  administrator though he may discharge himself by deliver they over previous to  the commencement of the action see Keble v Osbaston hob Bradbury v Keynel cro  Elizabeth paget v priest term Rep Curtis v Vernon term Rep S c h Bl Rep c but  if a obligor executor will refuse before the ordinary to accept of the  executorship modern report er p without have before meddle then he hold the  act of the testator will not not volens amount to a release powys justice say  a executor have before probate a very large and ample power and cite middleton  case d   d for before probate a executor may release a debt e Plowd roll Abr e  which a administrator can do for the executor commence by a act temporal  original by the will but a administrator commence from the letter of  administration and so the diversity Plowd Com roll Abridg Henry pl Mod Rep  dyer hut Rep cro James vent be reconcile if a executor refuse to accept the  executorship and be a debtor the administrator may sue he f so if a debtor  make his creditor and another person executor and the creditor neither prove  the will nor act as executor he may maintain a action against the other for  his demand on the testator Rawlinson v shaw term Rep f for he say it be no  release of the debt contrary to the sudden opinion of Twisden justice in the  case of Abram v Cunningham g vent S c lev S c Mod S c Jones S c keb S c Freem  S c Danv g but he take a difference between a actual refusal and not meddle  with the executorship for a time for if a make a deed to the use of b it be  a s deed until b refuse h see butler and baker case   b h Powell justice first  of all cite the case in the yearbook of Edward the four I yearbook Edward pl I  and say abundance of case agree that if the debtee make the debtor executor  who prove the will the debt be for ever go because it be the very act of the  testator himself king see wentworth office of executor   light notorious facts  salk roll Abr cro car Com dig Administration b brown p c viner Abr Eq case Abr  king and therefore if it be only suspend it be his act it be for ever go now  if the prove the will be the only cause then he say it be very strange none of  the book shall take notice of it but the reason give in they be that a  personal action once suspend be for ever go but it be plain the right of  action be in he before probate and therefore he may release nay he may modern  report bring a action though he can go on with it until he have obtain the  probate under seal to produce in court a   roll Abr Hutton a if the ordinary  grant letter of administration to the obligor it will suspend the action but  nothing further because it be not the act of the obligee himself if a executor  die before probate his executor shall not be executor to the first testator  and be think the case in dyer leo and Plowd Com be the first that allow of  this and he say they be rather in compliance with the spiritual court than  lawful for a executor be a authority give by the first testator and then what  authority have the spiritual court or the first executor to make a executor to  the first testator b see the case of Heden v wolf express in point palm Rep S  c under the name of Haiton v wolf cro James roll Rep see also flood v Rumcey  Yelv b now as to the matter of the release be say it can not operate as such  for then it will not be asset but rather as a legacy and yet it will not be  asset to legacy except part of it be especial appoint to be pay away for then  it show the intent roll Abr for a will can be say proper to be a release but a  gift and so must be liable to debt if the obligor make the obligee executor  who accept it now if there be asset he may retain if there be none he may sue  the heir and so no suspension of his debt for if his debt be extinguish it be  upon presumption of his be satisfy by retain Plowd Com holt chief justice say  before be give his reason for affirm the judgement he will first give answer  to three objection start at the bar the first be when a will be make and the  executor die before probate the spiritual court grant modern report er p  administration cum testament fastening without take any notice of the  administration by the executor the second objection be that it be the  foundation for grant administration to the next of kin that the executor die  ante onus will super see assumpsit the three objection be that such executor  make his executor he can be executor to the first testator but administration  must be grant cum testament annex and as to the first objection he say the  spiritual court can not take modern report notice of what a executor do though  all his act be valid before probate as to the second that he die ante onus  will super see assumpsit he say that must be take in a restrain sense  videlicet ante onus c take upon he in their court and as to the three  objection that a executor die before probate make his executor that he shall  not be executor to the first testator be because no man can prove the will of  another who be not name executor c in the will cro James his first reason for  affirm the judgement be that by the make he executor he be entitle to receive  and pay money due before probate and be bind to receive and pay he can pay  himself and so it operate as a extinguishment but this rule be subject to  several limitation as if the obligor make the obligee executor for he be not  bind to pay unless he have asset and then he may retain for his own debt Henry  cro car hill car cock v cross a second limitation suppose the obligor take  administration he have as much right to receive as the executor but then the  one be the act of the creditor the other of the ordinary which be but a naked  authority without any interest as in sir John needham case a   a a three  limitation if the executor of the obligee take the obligor to husband this be  no extinguishment   light bat if the obligee take the obligor to husband it be  because it be in vain for the husband to pay money to his wife bat when the  husband pay money to the wife executrix there it shall not be the husband  money if she die but the administrator de good non another reason be because  it be asset for it amount to a payment and enures as a release thereupon  contrary to Powell and be as much as if he have receive so much money and  therefore be asset in his hand another reason be by his accept the  administration he become a complete executor though he die before probate and  all the good of the testator be by act in law vest in his possession for which  he may bring trover nay he may bring a action of debt before probate and  though it shall appear that the probate modern report bear date after the  bring the action yet it will be well enough b roll Abr b but in case he have  go into the spiritual court and refuse then it will not be a release for no  one shall be compel to accept of a release no more than of a deed for the  obligor may plead non be factum to the bind but until actual refusal he be a  executor though he die before probate and he cite Edward Edward Hardres and  the Lord petre case which holt chief justice say be argue and resolve in  sergeantsinn about four year since easter term the four of queen whether in  the queen bench sir John holt Knt chief justice sir John Powell Knt sir  Littleton powys Knt sir Henry gold Knt justice sir Edward Northey Knt attorney  general sir Simon Harcourt Knt solicitor general