coke b HENSLOES case Trin Elizabeth Reg see in re goodman trust Ch d smart v  Tranter Ch d Ch d in debt against several executor they may plead in abatement  another executor not coke report a er p name in the writ who have administer  although such executor refuse before the ordinary to prove the will when many  be name executor and some of they refuse and some prove the will they who  refuse may afterward at their pleasure administer although the refusal be  before the ordinary but if all refuse before the ordinary and the ordinary  commit administration to another they can afterward administer in debt against  a executor he may plead that the testator make he and another executor who  have administer and be alive without say that the will be prove for after the  executor have administer and so have once take upon they the charge of the  executorship they can afterward refuse when the ecclesiastical court have  prove a will their authority be execute and they have no power to take a  refusal afterward the power of the ordinary before the stat e and what  alteration that statute have make see Mod salk skin Carth Rep Q a   light b e  pl e a b e b e Hensloe bring a action of debt against gage and other as  executor the defendant plead in abatement of the writ that the testator make  one Hillesley coexecutor with they who have administer a this averment that  the executor not join have administer be essential necessary for the plaintiff  need only sue so many of the executor as have administer bro exhort go Com dig  abatement f swallow v Emberson lev Alexander v mawman will sergeant williams  note cabell v Vaughan sand king per grose I Rawlinson v shaw TR a c not name  in the writ judgement of the writ to which the plaintiff say that before any  administration c the say Hillesley be cite with the other to prove the will  before the ordinary refuse and the defendant only prove the say will c upon  which the defendant demurrer in law and it be object that after this refusal  Hillesley can not administer for two reason because Hillesley may wave the  executorship and shall not be executor against his will law testamentor to  stretch out ad of order as be say in a blow a b Br debt Fitzherbert executor a  h b when Hillesley once refuse before the ordinary who be lawful judge of the  cause and thereby wave the executorship and utter discharge himself thereof he  can resume it afterward as in all case of interest and authority when one wave  and refuse to take the interest or authority and especial before a lawful  judge in a ordinary course of proceed he shall never after agree to it and  therefore suppose in this case that Hillesley have be join in the writ and he  have plead never executor or ever administer as executor shall he be afterward  receive to administer it be say clear no it be strong urge coke a that if all  the executor be cite before the ordinary to prove the will and all refuse the  ordinary may accept this refusal and thereupon commit administration and after  that refusal they shall never take upon they the charge of the will nor  administer as executor because they have before a lawful judge in a ordinary  course of proceed wave it before and if they may all refuse before the  ordinary and this refusal shall bind they what reason be there if any of they  refuse before he that it shall not bind they and as when executor agree to the  will administer they can afterward refuse as it be hold in b Fitzherbert  executor Br execute Br ordinary postea b b e a b blow Com Greisbrooks case so  when any of the executor once before a competent judge refuse they shall not  after agree it be object that the bar be not good because the n two executor  bring a action of account against I S and upon show the will it appear that  the defendant be joint executor with the plaintiff and b Herle in such case  for necessity the defendant shall not be name plaintiff and the defendant be  put to find bail until the judgement shall be give e b pl note to former  edition Vid note e sir John nedham case Rep a coke report b er p defendant  have not allege that the will be prove accord to the opinion in c postea b c h  a but it be resolve without open argument that the plaintiff replication to  maintain his writ be not sufficient for notwithstanding the refusal of  Hillesley in this case he may administer after at his pleasure and the court  take this difference when many be name executor and some of they d dyer pl  salk Cr Elizabeth more Leon Brownl a Wentw Owen roll Anders Hardr Swinb r b d  refuse and some of they prove the will those who refuse may afterward at their  pleasure administer notwithstanding this refusal before the ordinary but if  all refuse before the ordinary and the ordinary commit administration to  another there they can afterward administer and this difference be prove by  our book in e a where it be resolve by the justice that if e Br executor e  twenty be name executor and one prove the will it suffice for they all and the  refusal before the ordinary be not any estoppel against they to administer  after when they please in our law and we have no regard in this point to the  law of the church and the executor who prove ought to f go Plowd b r b a    light b dyer b c Br exec Perk Thelo salk roll Rep f name they who refuse in  every action to recover the testator debt and they may a   a Br Administ e a  Swinb a release the whole debt duty and it be clear that they who refuse shall  have a action by survivor b and therefore notwithstanding the refusal of a  executor administration can be grant to another in his lifetime shall he be  the survive executor until he be again cite and have again refuse but if upon  such citation be actual renounce then administration may be grant to another  house v Lord petre salk Wankford v Wankford saik brook v Stroud salk king v  Simpson burr SC I black Rep Arnold v blencowe Cox Rep and Vid Robinson v pet p  Willms Com dig Administration b Fonbl equity burn ecclesiastical law touch Bac  ab exhort e b but it be hold in h a that if a man make two executor and both  refuse before the ordinary now they can never after administer as executor by  force of the will for now the testator die b dyer pl b intestate otherwise  when one prove and the other refuse before the ordinary the other may  administer with he when he will in c roll Rep Fitzherbert exec Br exec Statham  exec c e a one executor bring a action of debt and show forth the will which  prove that he have another executor and the defendant plead to the writ that  he be alive to which the plaintiff say that before the ordinary he be  discharge of the administration and that be coke b never administer and  because he may administer at his pleasure it be adjudge that the writ shall  abate but it be resolve by Littleton Newton and Danby in d e b a Fitzherbert  Admin Br executor Plowd b d e a that if all the executor refuse before the  ordinary they may prove the will afterward in e b debt by e Fitzherbert  variance Fitzherbert executor e two executor and will show the defendant say  that in the will three be make executor the three not name c judgement of the  writ the plaintiff reply that the three refuse before the ordinary and will  not administer and be discharge by the ordinary c and it be adjudge that the  writ shall abate c a executor derive his title not from the probate but from  the will and a probate grant to one executor enures to the benefit of all and  all must join in a action bring in that character per Bayley I barn Ald in  brook v brook salk where two executor sue and upon probate set out it appear  only one have prove the will it be hold that the defendant can not plead this  in abatement for both have the right in they and be that do not prove may come  in when he please but can not refuse during the life of he that have prove all  the executor must join in a action although some of they be under the age of  year and if such infant executor do not join the defendant may take advantage  of the nonjoinder by plea in abatement smith v smith Yelv Foxwist v Tremaine  sand and if a infant and a man of full age be make executor they may bring a  action as executor and the infant may sue by attorney without make any  prochein any because those of full age have authority to dispose all their  asset without the assent of the infant per holt CJ coan v bowl Carth Rutland v  Rutland cro Elizabeth roll ab attorney c Foxwist v Tremaine sand SC side lev t  raym keb vent Mod and it seem that all the executor must join although some be  infant notwithstanding the Act Geo c which provide only for the case of a  infant sole executor but where executor make a sale of the good of their  testator they may sue without style themselves executor and no more ought to  be join than those who make the contract and that although the good be sell as  the good of the testator Brassington v Ault bing c coke report a er p and  therewith agree e f e Fitzherbert exec f executor g Fitzherbert exec Br exec  Perk sect g e a b h h b a Br Det Br Admin h h b h a h b r b but it appear in I  Fitzherbert Admin Br Admin Br ex I e a king postea king h a that if all refuse  before the ordinary he may grant administration note see the book itself for  it seem to be misreport by our author Lord coke note to former edition it be  resolve that in debt against one as executor it be a good Doct pl Swimb a plea  to say that the testator make he and another executor who have administer and  be alive without say that the will be prove and therewith agree Fitzherbert  exec Br ex b h a c Br ex c h b Fitzherbert ex Br ex Br double plea d h b h  Administration for after the executor have administer and so have once take  upon they the charge of the executorship they can afterward refuse d Vid send  for Wankford v Wankford salk cross v pike p wms Robinson v pet p wms if after  a executor have administrate he refuse before the ordinary yet letter of  administration can be grant to the next of kin and if a administrator bring a  action it be a good plea to say that the executor make by the will have  administer parten and Basedens case Mod d Fitzherbert exec Br exec e a b Br  ordinary e e a blow Com Greisbrooks case so that it be resolve that the plea  in bar be good and so the doubt conceive in f ante a above blow b Fitzherbert  Admin f h obiter well explain also the plaintiff in his replication have show  that the will be prove c and so if necessary have make the bar good and I well  agree that this case be upon manifest and manifold authority and judgement in  book adjudge accord to law which be the reason that in a case so clear the  judge do not show the reason and cause of the same difference nor make any  answer to the say objection which some learned in the law desire for their  satisfaction to be do as to that it be to be know that it be hold in r  testament that it be but of g roll salk Inst Perk sect h b Br witness   a b  Caudreys case side Vaugh seldon jurisdict de test vide salk wear down g late  year that the church have the probate of coke report a er p will in this land  until it be by a Act c for lie people have probate of will in all other place  except England and in many place in England the lord of manor have probate of  will at this day in their temporal court and Tremail there say that he be  steward in his country and the free tenant and bondman prove their will before  he in the court baron and so it have be use from time whereof c and therewith  agree Fineux and all the justice in h b that the probate of testament belong  not to the spiritual court but of late c and they have it not by the spiritual  law and Linwood who be dean of the arch and write year dom coke a in the reign  of king h lib title de will foe confess that probate of will belong to the  ordinary de h Inst carter Swinb n probate of will as ancient in the bishop  court as the time of William the conqueror see nicholson hist library foe and  that administration grant e be probable as ancient note to former edition h  experience England et non de common jure and that in other realm the ordinary  have it not and in another place he affirm the power of the bishop in probate  of will per general consensus king of oneself nobles ab antiquity and I have a  book publish in Latin year dom by the most reverend prelate Matthew Parker  archbishop of Canterbury very expert in matter of antiquity in which it be  affirm in these word king England formerly to be concilionum ecclesiastic  prses defender rashness Roman propugnator reverence nec any to have bishop  origination prter she how a ring acceptan refereba law will to make good non  to have administration power whoever it be refer to non to be able e it appear  to have be a matter of great controversy to who the probate of will and grant  of administration original belong and whether these matter be entire of  ecclesiastical cognizance the better opinion seem to be that the probate of  testament do not original belong to the ecclesiastical jurisdiction Vid man v  Napp salk megit v Johnson Doug Atkins v hill Cowp Bacon ab exhort e Fonbl on  equity d anon I Com Com dig Admin b burn ecclesiastical law e then forasmuch  as probate of will be give to the spiritual court whereof they have not  jurisdiction before when they have prove the will their authority be execute  and they have not power to take the refusal of any when any of the executor  prove the will and therefore the refusal of any of the executor before the  ordinary in such case be void the executor have their title by the will which  be temporal and to the good and chattel also which be temporal as it be agree  in blow Com in Greisbrooks case which will be complete as to all good and  chattel in possession and reversion and as shall be after say to a   light b  blow b a   a hut roll postea a   a raym Swinb more go Lucas a release debt and  duty before any probate f for what a executor may do before probate Vid Com  dig Admin b Bac ab exhort e Toller law of executor vin ab exhort a a f but as  to bring of action in the king court the judge do not admit the executor to  sue for thing in action unless they show the will prove duly under the seal of  the ordinary but always the king court have use to allow the probate of any of  the executor to enable they all to bring action so that the probate of the  will do not give they any interest or title either to the thing in action or  in possession for they have their whole title and interest by the will and not  by the probate but yet without the probate the judge will not allow they to  bring action g Vid send for king v reins l raym smith v mill TR Allen v dundas  TR but where it be say a executor can sue before probate it be mean he can sue  effectual for he may before probate commence a action in right of the testator  but as he can assert his right in court without produce his letter  testamentary he must take out probate before he declare Duncomb v walker t  raym SC lev vent Wankford v Wankford salk Martin v full comb roll ab a so a  executor may file a bill in equity before probate and the subsequent probate  make the bill a good one Humphreys v Humphreys p wms and a commission of  bankruptcy may be take out by a executor before he have obtain probate ex part  Paddy mad g and therefore all the say book in so many succession of age coke  report b er p affirm clear the refusal before the ordinary by one executor  when another prove the will to be void prove that the ecclesiastical judge  have no power to take the refusal in such case for without question the  executor have power to refuse and as to the objection which have be make that  he have coke b once wave the executorship and therefore shall not afterward  take it upon he to that it may answer forasmuch as the ecclesiastical judge  have no power to receive that refusal or disagreement it be upon the matter  make to a stranger and by consequence void and of no force to bar the  plaintiff to take it afterward as in the like case it be resolve in h and this  be also affirm by all the other book which prove the refusal void and as to  the second reason that be to say that the ecclesiastical judge may take the  refusal of all and by consequence of any of they to that it may be answer that  as original the ecclesiastical judge have no power to prove will but it be  give he as appear a before b a before so original the ecclesiastical judge can  not commit administration to any who may sue or be sue as administrator but  that also be give to the ordinary by a Act see by the Act of b Cr car Jones    b blow a b a Cr Elizabeth Inst Nov seldom law de test carter   light b Swinb  keb f n b d b e cap by which it be enact that in case a man die intestate the  ordinary shall depute the next and most faithful friend of the intestate to  administer his good which deputy shall have a action to demand and recover the  debt due to the say intestate in the king court to administer c and shall  answer also in the king court to other to who the say decease be hold and bind  in the same manner as executor shall answer and shall be Accountable to the  ordinary as executor be in case of a will as well in time pass as in time to  come now it be necessary to know two thing what the law be before the stat and  what alteration the stat of e have make and as to the first three point be to  be observe that of c Swinb cart vide dictum dyer in blow c ancient time as  appear by record when a man die intestate and have make no disposition of his  good nor commit his trust to any in such case the king who be parent father  and have the supreme care to provide for all his subject that every one shall  enjoy that which he ought to have use by his minister to seize the good of the  intestate to the intent they shall be preserve and dispose for the burial of  the decease for payment of his debt to advance his wife and child if he have  any and if not those of his blood and this appear in rot Claus de h m d cart  vent side seldom law de test see blow d good without a will take hold to use  in manu king c and afterward this care and trust be commit to ordinary for  none can be find more fit to have coke a such care and charge of his  transitory good after the death of the intestate than the ordinary who all his  life have the cure and charge of his immortal e blow a e soul as it be say in  blow Com in Griesbrooks case and therefore he be to this purpose constitute in  f Swinb post b f loco parent and that appear by what have be say before and  also by the constitution of John g Inst cart g Stratford archb of Canterbury  at a synod in London year dom where confess that the administration of the  good of a intestate be grant to ordinary general consensus king great man  royal power but no h Swinb h power be give to the ordinary to sell or give the  good or dispose of any of they to his own use or any other and yet it be true  as it say in the book that he have a property in the good of the intestate but  that be secundum quid and not simpliciter and accord thereunto it be resolve  per coke report b er p totan curian m Elizabeth dyer that I die pl keb a Swinb    b roll go Inst I the ordinary himself have no authority to sell any of the  good of the intestate although they be in danger of perish also Henry b and  other book agree that the ordinary can king   a   b blow b king release a debt  due to the intestate and yet if the absolute interest of the debt be in he he  may release it although he can not have a action as executor before probate of  the will may l raym   light b   a Swinb before a hut blow b a roll   a more go  l release a debt due to the decease because they have the absolute interest of  the debt in they although they can have a action before probate as it be  adjudge in common banc pasch I James king betwixt a   a   light b a Middleton  and rymot against the opinion of Weston blow Com in Griesbrooks case h Vid  send for patten Basedens case Mod swim Wankford v Wankford salk burn  ecclesiastical law by Geo c person administer personal estate without obtain  probate or letter of administration within six calendar month after the death  c forfeit and per cent on the duty h and that which the ordinary himself may  do before the say Act he may in respect of the multitude of cause within his  diocese commit to another but his committee can do more than he himself can as  it be also resolve m Elizabeth die where above it be not give to the ordinary  nor to his deputy or committee that they shall have any action to recover any  debt or to take any advantage of any covenant or of any other thing in action  before the say Act which be also a manifest proof that the commonlaw give he  ho absolute power in the good for then the law will have give he power also to  recover the debt and thing in action of the intestate and therefore in e  covenant b Selden jurisdiction de test Fitzherbert Admin in fine b which be  before the Act of e in a action of covenant bring by the executor of n who  show forth letter of administration deliver by the ordinary sir Richard Wilby  chief justice who give the rule say the ordinary can not have such action  wherefore how can be give this action to another stone a man have not see that  the ordinary shall have coke b a action but of good whereof they be seize and  oust Wilby that be true and afterward it be award that they shall take nothing  by their writ because non executor action non to hand over per to cause to  stand vide e c e Fitzherbert Admin c Administration e executor h b I h h h b e  a f n b d m that a action lie d   a die pl pl roll Cr Elizabeth Inst Br  ordinary d against the ordinary or his deputy or committee at the commonlaw if  they will intermeddle with the good and not pay debt and the statute of W cap  be but a affirmance of the law before and therewith agree e a h b e b vide r  administrator and title executor e brief h b h b blow Com b Greisbrooks case  Elizabeth dyer but notam reader a action lie against the deputy or committee  of the ordinary before the say Act by the name of executor as appear by e e a  much strong a action will lie by the commonlaw against the ordinary who be the  principal and from who the administrator derive their authority as to the  second point the statute of e e c before b light Rep Plowd a e e have make six  alteration three as to the ordinary and three as to the administrator as to  the ordinary whereas before the stat he be not compellable to grant  administration now by the Act of coke report a er p parliament he be command  and thereby compel to f Cr car f grant administration for the word of the Act  be the ordinary shall make deputy c and the refusal to do it be a contempt to  the king and a injury to the party the ordinary be restrain from grant  administration to who they please because now the administrator by this Act  have a more absolute interest in the good of the intestate than the ordinary  have and ability to recover the debt and other thing in action due to the  testator where no remedy be give to the ordinary himself and therefore the  ordinary be bind by the Act to grant administration to the next and most  faithful friend the ordinary shall depute the next and most lawful friend I  the a cro car Jones salk a next of blood who be not attaint of treason felony  or have other lawful disability but be lawful friend but the stat of b cro car  b h cap give power to the ordinary to commit administration to the wife of the  intestate or to the next of blood or to both and so as to the wife have alter  the Act of e the ordinary himself have not great interest in the good by this  Act but have great c f n b d c power than he have before in this only that he  may appoint administrator who shall have by this Act coke a great interest and  ability than they have before the Act and where the statute say that in case a  man die intestate it be to be know that a man may die d Inst die pl d  intestate two way that be to say either in fact when be make no will or in law  when he make a will and the executor refuse before the ordinary or all die  intestate in this case he be in law dead intestate and the say Act of e e e c  e extend to both the intestates as appear in blow Com a b and in h a b and in  all the book aforesaid which prove that in such case the ordinary may grant  administration and the reason why the ordinary in such case may upon refusal  of all or death of all intestate grant administration be because now the  testator die intestate and then the say Act give he power to grant it accord  to the say Act which the ordinary can do when one refuse and the other prove  and so the second objection upon f till and pregnant reason and authority be  answer and where the statute say in case a man die intestate that the ordinary  shall depute the next c of the dead intestate this word dead be take large for  it extend as well to civil death know entry into religion as to natural death  and therewith agree Litt lib cap villeinage a that if a man enter into  religion and do not make his f Inst a b sect f executor the ordinary may  commit administration of his good to another man as if he be dead in fact as  to the administrator they have now as absolute a property in the good and  chattel as executor have which they have not before this Act they shall  recover the g blow b f n b d Inst g debt and by equity shall have a action of  covenant action upon the case and all other action which executor may have  which they can not do at the commonlaw they shall answer to action c in the  same manner as executor and in this point also the commonlaw be alter for at  the commonlaw they be charge by the name of executor and now they shall be  charge by the name of administrator and yet there be a doubt after the make of  this Act by what name they shall be charge in e h e b a h debt be bring  against a administrator by the name of administrator the defendant plead to  the writ that he ought to be name executor for at the commonlaw before the  statute of e a man shall have a action against a administrator and name he  executor and that remain law yet Thorp chief justice who give the coke b rule  in the case the statute give action against administrator and that they may  have action against other wherefore the writ be award good and yet afterward  this point be call in question for in e a b a action of debt be bring against  a administrator and the coke report a er p defendant demand judgement of the  writ for it shall be bring against he as a Fitzherbert administrator Br  administrator a executor for the statute give a action for administrator but a  action be maintain against they as executor at the commonlaw and yet S Thorp  the statute give action against administrator and afterward the writ be award  good so this administrator constitute by the ordinary who the law have put in  b Swinb before a b loco parent so advance enable and adorn and in all c more c  point make equal to executor constitute by the party himself be new create by  this Act and no such administrator be at the commonlaw and therefore the  ordinary be constitute in loco parent to see that the debt and duty of the  intestate shall be pay and to grant administration accord to the say Act for  the benefit of his child or other of his blood with his good as have be say  but because it will be too great a trouble for the ordinary himself to take  such charge in such multitude of case in his diocese for his ease the say Act  of d e c d e have adorn and endow his deputy with great power than be himself  bad to the intent that the administrator who may better intend it shall  perform the trust which be commit to they and for this reason the say Act have  also provide that administrator to the say intent and purpose shall be hereaf  to Accountable to ordinary as executor be it be worth observation for the  reason of the principal case how probate of will and grant of administration  shall be try if they be traverse or deny in the king court and therefore if  issue be join in the king court that the ordinary do not commit administration  to the plaintiff c or that the will be not prove before the ordinary or that  be who will be prove before the ordinary die intestate or that be of who good  administration be grant as of one who die intestate make a will c in none of  these case it shall be try or certify by the ordinary as in the case of e    light a before b e excommengement but it shall be try by f Doct pl before a  dyer b Plowd f jury because these two case of probate of will and constitute  administrator original do not belong to the conusance of ecclesiastical judge  but be give they of late time and therefore nothing but the probate and grant  of administration which be give they belong to their coke a jurisdiction but  the trial of they be not give to they but be leave to the trial of the  commonlaw and therewith agree g Br to point out c g e a where it be hold that  if letter of administration be deny the issue shall be that the ordinary do  not commit to they administration by his letter c for there it be say that  letter of administration may be forge e a h b h Fitzherbert exec Br record Br  witness h h b Elizabeth die I dyer pl I issue be join in the common plea si  bishop London To bring together administration c and be try by king Ant a Br  averm Br estop blow a Fitzherbert estop king jury vide h b in e a one bring  debt against one as administrator and declare that the debtor die intestate  and the ordinary depute the defendant to be administrator and the defendant  say that the decease make his will and make the defendant and another his  executor c and demand judgement of the writ and show forth the will prove his  plea and the plaintiff reply that he die intestate hoc e and the defendant say  to that he shall not be receive against the will which be prove before the  ordinary and be under the a Doct pl lev a seal of the ordinary non allocatur  wherefore the plaintiff have the averment and it be try by the country I Vid  Allen v dundas TR that a probate as long as it remain unrepealed can be  impeach in the temporal court I vide b Fitzherbert variance b h a by Paston  and against the opinion of Herle coke report b er p e executor obiter and  forasmuch as it be to be try by jury and not by the certificate of the  ordinary the will or the administration need not be c side hob Cr James Bulst  Cr Elizabeth sand car c car c c show to enable the plaintiff to his action  prove or grant by the ordinary himself as in the case of excommengement which  be mere in the spiritual and original belong to the jurisdiction of the  ordinary ut if the will be prove or administration grant by the official or  commissary of the ordinary or in some case by the archdeacon or other inferior  judge ecclesiastical who have lawful authority in such case it be good and  sufficient in law and although the statute of e say the ordinary shall make  deputy they be ordinary as to this purpose within the same Act and therewith  agree d Fitzherbert administrator Br administrator d h a e b e a h a e itin  north title testament and so you have the reason and cause of the judgement in  the principal case and of many judgement and resolution before this time in  the same point with a answer to all the objection make to the contrary which I  have do for four reason that it shall be manifest that the ordinary coke b  against all objection make by they who impugn their authority have lawful  jurisdiction to prove will and to grant administration that they have their  jurisdiction derive in these case from the crown of England to reconcile all  the book and authority in the law and to satisfy the say doubt and question  clear by our book authority of law and judicial record but note will may be  prove I e record in any of the court of commonlaw at Westminster and so  likewise in the court of equity as the chancery or exchequer so also in the  Chamber of the city of London and diverse other city and town and many  lordship and manor have a original right of prove will c vide post a b and  upon the whole it appear clear that the claim and practice of the spiritual  court in this particular be original a mere usurpation see Mr seldom treatise  of the original jurisdiction of testament and of Administration c note to  former edition