case hill against mill and another the ordinary can refuse to grant probate of  a will to the executor appoint by the testator and if a suit he institute to  revoke a probate so grant on account of the executor be incapable by the canon  law the commonlaw court will grant a prohibition SC salk SC comb SC skin SC  Mod SC holt Henry hill citizen and stationer of London make his will and  constitute Elizabeth his wife and Adiel mill executor and give the residue of  his own three part equal to be divide between Gillam his son by his first wife  James and George hill his son by his second wife his two other child have be  advance by he in his lifetime with a clause that if either of his son shall  contest or sue for any thing contrary to or to invalidate his will such his  legacy shall be void probate of the will be grant to Adiel mill one of the  executor and deny to the widow she be a papist convict a the conviction be  exhibit into court and there remain with the registry Gillam hill one of the  child and residuary legatee cite Adiel mill to show cause why the probate  grant to he shall not be revoke and administration grant to he the say Gillam  with the will annex in the citation no cause be express but upon Mr mill  appearance the judge of the prerogative examine he if any commission be sue  out against he he own it and that it be not supersede and then he urge that  his creditor have give he one thousand pound the judge likewise examine some  witness about a mortgage of part of the estate of hill which be thus hill in  his lifetime have make a mortgage to mill for a thousand pound which mill  assign after hill death c sir Thomas pinfold then argue to this effect that  shower KB Mr mill be but a nude a see the statute and will c and Ann c a by  James c S l every Popish recusant convict of Popish recusancy shall stand and  be repute to all intent and purpose disable as a person lawful and duly  excommunicate and a excommunicate person can be a executor or administrator    light Swinb Godolp but see Bulst Mod hawk p c and wentworth office of ex  shower KB er p executor and he have no interest in the testator estate and now  by become a bankrupt he be unfit and disable to manage another estate who want  honesty or conduct in his own that the ordinary be judge of all this matter  that a probate may be revoke and the judge have power to revoke that if the  testator say that he will not have his executor to give a account yet the  judge upon consideration of the circumstance c may call he to a account for  the judge may order that which the testator will have do upon knowledge of  those circumstance Linwood de testament religion word account that in the same  book nisi ankle that a ordinary may remove a executor depute by the testator  when he see just cause for do it where there be a sufficient presumption of  fraud though poverty if accompany with diligence be not so and in the  institute de esteem protector if esteem de custom he may be remove Mr ware of  the same side that he be but a trustee he have no interest and in chancery  upon a misdemeanour they do often transfer the trust there the ordinary be the  judge I argue e contra that this probate be not revocable by our law b the  ordinary here be compellable to give probate to a executor that the revoke it  be a alter of the will of the testator and make a new one for he that the  intention of the party the man to cause to testify be as strong for the  constitute of he executor as for the give the son their legacy that it be  plain the express will of the testator that his son shall not have the conduct  of his estate he give it to they sub elsewhere modus videlicet under the  managery of such a one his executor then as to the bankruptcy that be no  disability or breach of trust quoad his executorship for what he have as  executor the law protect from all forfeiture for a outlawry affect it not nay  if he be resolve into a state of damnation by excommunication that be no  disability upon he in that respect c a attainder of treason or felony will not  any way forfeit it the law call it not his because in another right if he  grant in all respects good svan the good which he have as executor will not  pass if he release all debt due to he it will not bar a suit as executor the  commissioner of bankruptcy can assign any thing but his own estate so there be  no danger to the testator concern by this bankruptcy then as to his fitness to  be trust the testator know he and judge he fit and make he executor he be  complete and entire so without any act of the court Christian the probate be  only to capacitate he to sue he may pay debt and release debt before and  without shower KB probate he may do any act of administration even without  exception now no man or court can determine executorship without his own  renunciation he must still sue I say he must this administrator can never  bring a action but if he do the defendant may plead a executor make and live  he be undoubted still liable for all debt administrator be a executor appoint  by the judge and therefore no argument from thence can affect this case it be  true a administration to forth be revoke because of his bankruptcy but here be  a executor make by the party which the law entitle to have a probate of his  testator will sure there never be a citation for this purpose or any  revocation of a probate grant to a executor ever since the original of  ecclesiastical or any court in England c sir Richard reins the judge make a  great difference between a executor and a administrator so for a executor  between a nude executor who be only trustee and one that have interest by the  will that the ordinary be to take care that the will be perform the testator  make mill executor on supposal of he to be able now he be a bankrupt this if  know to the testator have prevent his be executor the ordinary be to see his  express will perform if circumstance alter then his presume will must be  observe in such manner as he will have do it d the judge shall sometime swerve  from the testator appointment as if that a man be improvident or of ill manner  c and therefore as judge do revoke the probate and grant administration with  the will annex to Gillam hill the other child be beyond sea b see Allan v  dundas land Rep c   light d see the digest de administration et danger tutor  lib artic shower KB er p afterward reins tell I that the canon law look upon a  executor in general as one that have no interest who province be only to  execute the will that by the same law in case of a will to pious use and for  cause of nurture be the same a executor be removable for negligence if nothing  be do for the space of one year note the novelty and profit of this case  engage all the doctor zeal for it c send I to see before dissonant law command  and the first day of Michaelmas term upon my motion on a suggestion of this  matter we have a prohibition shower KB michaelmas term the three of William  and mary in the king bench sir John holt Knt chief justice sir William dolben  Knt sir William Gregory Knt sir Giles eyres Knt justice sir George Treby Knt  attorney general sir John summer Knt solicitor general