The Doctor and Student (1518)

Christopher St. Germain

The eighth question of the student, whether executors be bound in conscience

Stud. If a man do a trespass, and after make his executors, and die before any amends made; whether be his executors bound in conscience to make amends for the trespass, if they have sufficient goods thereto, though there be no remedy against them by the law to compel them to it?

Doct. It is no doubt but they are bound thereto in conscience, before any other deed in charity that they may do for him of their own devotion.

Stud. Then would I wit, if the testator made legacies by his will, whether the executors be bound to do first, that is to say, to make amends for the trespass, or to pay the legacies, in case they have no goods to do both?

Doct. To pay legacies: for if they should first make recompence for the trespass, and then have not sufficient to pay the legacies; they should be taken in the law as wasters of their testator’s goods; for they were not compellable by no law to make amends for the trespass, because every trespass dieth with the person; but the legacies they should be compelled by the law spiritual to fulfil; and so they should be compelled to pay the legacies of their own goods, and they shall not be compelled thereto by no law ne conscience: but if the case were, that he leave sufficient goods to do both, then methinketh they be bound to do both, and that they be bound to make amends for the trespass, before they may do any other charitable deed for the testator of their own mend, as I have said before, except the funeral expenses that be necessary, which must be allowed before all other things.

Stud. And what the proving of the testament?

Doct. The ordinary may nothing take by conscience, therefore, if there be not sufficient goods besides for the funerals, to pay the debts, and to make restitution. And in like wise the executors be bound to pay debts upon a simple contract, before any other deed of charity that they may do for the testator of their own devotion, though they shall not be compelled thereto by the law.

Stud. And whether thinkest thou that they be bound to do first, that is to say, to make amends for the trespass, or to pay the debts upon a simple contract?

Doct. To pay the debts, for that is certain, and the trespass is arbitrable.

Stud. Then for the plainer declaration of this matter, and other like, I pray thee shew me thy mind, by what law it is, that if a man make executors, that the executors, if they take upon them, be bound to perform the will, and dispose the goods that remain for the testator?

Doct. I think that it is best by the law of reason.

Stud. And methinketh that it should be rather by the custom of the realm.

Doct. In all countries, and in all lands, they make executors.

Stud. That seemeth to be rather by a general custom, after that the law and custom of property was brought in, than by the law of reason, for as long as all things were in common, there were no executors ne wills, ne they needed not them: and when property was after brought in, methinketh that yet making of executors, and disposing of goods by will, after a man’s death, followeth not necessarily thereupon: for it might have been made for a law, that a man should have had the property of his goods only during his life, and that then, his debts paid, all his goods to have been left to his wife and children, or next of his kin, without any legacies making thereof; and so it might now be ordained by statute, and the statute good, and not against reason. Wherefore it appeareth that executors have no authority by, the law of reason, but by the law of man. And by the old law and custom of the realm a man may make executors, and dispose his goods by his will, and then his executors shall have the execution thereof, and his heirs shall have nothing, but if any particular custom help: and the executors shall also have the whole possession and disposition of all his goods and chattels, as well real as personal, though no word be expressly spoken in the will, that they shall have them: and they shall have also actions to recover all debts due to the testator, though all debts and legacies of the testator be paid before, and shall have the disposition of them to the use of the testator, and not to their own use. And so methinketh that the authority to make executors, and that they shall dispose the goods for the testator, is by the custom of this realm: but then, I think, as thou sayest, that by the law of God they shall be bound to do the first, that is, to the most profit of the soul of their testator, where the disposition thereof is left to their discretion; and that, I agree well, is to pay debts upon contracts, and to make amends for wrong done by the testator, though they be not compelled thereto by the law and custom of the realm, if there be none other debt nor legacy that they be bound to pay by the law; but if two several debts be payable by the law, then which debt they shall do first in conscience, I am somewhat in doubt.

Doct. Let us first know what the Common law is therein.

Stud. The Common law is, That if the testator owe 10l. to two men severally by obligation, or by such other manner that an acteon lieth agaenst his executors thereof by the law, and he leaveth goods to pay the one, and not both; that in that case lie that can first obtain his judgment against the executors, shall have excution of the whole, and the other shall have nothing: but to which of them he shall in conscience owe his favour, the Common law teacheth not.

Doct. Therein must be consedered the cause why the debts began, and then he must after conscience bear his lawful favour to him that hath the clearest cause of debt: and if both have like cause, then in conscience he must bear his favour where is most need and greatest charity.

Stud. May the executors in that case delay that action that is first taken, if it stand not with so good conscience to be paid as another debt whereof no action is brought, and procure that an action may be brought thereof, and then to confess that action, that he may so have execution, and then the executors to be discharged against the other?

Doct. Why may he not in that case pay the other without action, and so be discharged in the law against the first?

Stud. No verily, for after an action is taken, the executor may not minister the goods so, but that he leave so much as shall pay the debt whereof the action is taken and if he do not, he shall pay it of his own goods, except another recover and have judgment against him hanging that action, and that without covin.

Doct. Then to answer to thy question, I think, that by delays that be lawful, as by essoin, imparlance, or by dilatory plea in abatement of the writ, that is true he may delay it: but he may plead no untrue plea to prefer the other to his duty. But, I pray thee, what is the law of legacies, restitution, and debts upon contracts, that percase ought rather after charity to be paid than a debt upon an obligation? What may the favour of the executor do in these cases?

Stud. Nothing: for if they either perform legacies, make restitutions, or pay debts upon contracts, and keep not sufficient to pay debts which they are compelled by the lawto pay, that shall be taken as a devastaverunt bona testatoris, that is to say, that they have wasted the goods of their testator; and therefore they shall be compelled to pay the debts of their own goods; and so it is, if they pay a debt upon an obligation, whereof the day is yet to come, though it be the clearer debt, and that be the more charity to have it paid.

Doct. Yet in that case, if he to whom the debt is already owing forbear till after the day of the other obligation is past, then he may pay him without danger.

Stud. That is true, if there be no action taken upon it; and though there be, yet if that action may be delayed by lawful means as thou hast spoken of before, till after the day, and that an action is taken upon it, then may the executor confess the action, and then after judgment he may pay the debt without danger of the law.

Doct. Is not that confessing of the action so done of purpose a covin in the law?

Stud. No, verily; for covin is where the action is untrue, and not where the executors bear a lawful favour.

Doct. The ordinary, upon the accompt in all the cases before rehearsed, will regard much what is best for the testator.

Stud. But lie may not drive them to accompt against thee order of the Common law.