ccxcviii cheny and smith case in a ejection strong by cheny and his wife  against smith the plaintiff declare upon a lease make by the master of the  house or college of S Thomas of acons in London to I S who assign it over to  knevit who by his will devise the same to his wife who he make also his  executrix and die and afterward she take to husband one water and die water  take letter of Administration of the good and chattel of his wife and  afterward lease to the plaintiff and upon not guilty they be at issue and it  be give in evidence that the lease give in evidence be not the lease whereof  the plaintiff have declare for the original lease show in court be master of  the house or hospital where the lease specify in the declaration be master of  the house or college e and some of the justice conceive that there be not a  material variance but if the party will it may be find by special verdict for  by they college and hospital be all one and afterward the court move the  plaintiff to prove if the wife be in as executrix or as law Leonard thou for  by Anderson and periam until election be make he shall not be say to have it  as legatee especial if it be not allege in fact that all the debt of the  testator be pay and Anderson doubt although that it e allege that the debt be  pay if the executor shall be say to have the say lease as a legacy before she  have make election with Weldens case and paramour case in blow and afterward  it be give in evidence that the wife after the death of the husband have  repair the bank of the land and produce witness to prove it as if the same  shall amount to claim it as a legacy and the court say that that matter shall  be refer to the jury and it be further show in evidence that the say wife  executrix and her say husband water former make a lease by deed recite thereby  that where the husband be possess in the right of his say wife as executrix of  her first husband c and by the opinion of the whole court the same be a  express claim as executrix and then when the wife die if the husband will have  advantage of it he ought to take letter of Administration of the good of her  first husband and not of the wife but if she have claim the land and the term  in it as legatee and have not be in possession Administration take of the  right and debt of the wife have be good as to that intent that his wife be not  actual possess of it but only have a right unto it and of such thing in action  the husband may be executor or administrator to his wife but here they have  fail of their title the Administration be take of the good of the wife where  it shall be of be good of the testator the first husband and for this cause  the plaintiff be nonsuit and the jury discharge and it be agree by all the  justice that if the wife before election have take husband that the husband  may have make the election in the case aforesaid roll mich Elizabeth in the  common bench