9th question of the student

Stud. A man is indebted to another upon a simple contract in 20£ and he maketh his will, and bequeatheth 20£ to H. Hart, and dieth, and leaveth goods to his executors only to bury him with, and to perform the said legacy, and after the said executors deliver the goods of their testator en performance of the said bequest: whether is he to whom the bequest is made bound in conscience to pay the said debt upon the simple contract, or not?

Doct. Is he not bound thereto by the law?

Stud. No, verily.

Doct. And what thinkest thou he is in conscience?

Stud. I think that he is not bound thereto in conscience, for he is neither ordinary, administrator, nor executor. And I have not heard that any man is bound to pay debts of any man that is deceased, but he be one of those three. For the goods that the testator left to the executors were never charged with the debt, but the person of the testator while he lived was only charged with the debt, and not his goods; and his executors, that represent his estate after his death, having goods thereto of the testator’s, be charged also with the debts, and not the goods. And therefore if an executor give away or sell all the goods of the testator, or otherwise waste them, he that hath the goods is not charged with the debts in law nor conscience, but the executors shall be charged of their own goods. And in like wise, if John at Noke owe to A. B. 20l. and A. B. oweth to C. D. 20l., and after A. B. dieth intestate, having none other goods but the said 20l. which the said John at Noke oweth him; yet the said C. D. shall have no remedy against the said John at Noke, for he standeth not charged to him in law nor conscience. But the ordinary in that case must commit administration of the goods of the said A. B., and the said administrator must levy the money of the said John at Noke, and pay it to the said C. D., and the said John at Noke shall not pay it himself, because he is not charged therewith to him: and no more methinketh in this case, that he to whom the bequest, is made, is neither charged to him that the money was owing to, in the law or conscience.

Doct. Then shew me thy mind, by, what law it was grounded, as thou thinkest, that executors be bound to pay debts before legacies; whether it is by the law of God, or by the law of reason, or by the law of man, as thou, thinkest.

Stud. I think that it is both by the law of reason and by the law of God. For reason wills that they shall do first that is best for the testator, and that is to pay debts, that their testator is bound to pay, before legacies that he is, not bound to. And also by the law of God they are bound to pay the debts first: for sith they are bound by the law of God to love their neighbour, they are bound to do for him that shall be best for him, when they have taken the charge, thereto, as executors do when they agree to take the charge of the will of their testator upon the; and it is better for the testator that his debts be paid, (wherefore his soul shall suffer pain) than that his legacies be performed, wherefore he shall suffer no pain for the performing of them.

And that is to be understood, where the legacy is made of his own free-will, and not where it is made as a satisfaction of any duty. And after the saying of St. Gregory, thee very true proof of love is the deed. But this man is not in that case, for he took never the charge upon him to pay the debts of the testator, and therefore he is not bound to, them, in law nor conscience, as me seemeth: but rather the executors should have been ware ere they had paid the legacies, seeing there were debts to pay.

Doct. The executors might no otherwise have done in this case, but to pay the legacies: for them they should have been compelled by the law to have paid, and so they could not have been to have paid the debt upon a contract, and therefore they did well in performing of that legacy; but lie to whom the legacy was made ought not to have taken them, but ought in conscience to have suffered them to have gone to the payment of the debt. And sith he did not so, but took them where he had no right to them, it seemeth that when he took them, he took with them the charge in conscience to pay the debt: for seth the executors were compellable by the law to perform that bequest, and not to pay the debt, therefore when they performed that bequest, they were descharged thereby against him that the debt was owing to, in the law and conscience; and then the charge rested upon him that took the goods, where he ought not in conscience to have taken them: but if it had been a debt upon an oblegation, or such other debt, whereupon remedy hath been had against the executors by the law, I there suppose, though that the executors had performed the legacy, that yet he to whom the legacy was made and performed, had not been charged in conscience to the payment of the debt, for the executors stood still charged thereto of their own goods; and he to whom the bequest was made was only bound in conscience to repay that he received to the executors, because he had no right to have received it, for against the executors he had no right thereto.

Stud. Then it seemeth in this case, that in like wise he to whom the bequest was made should repay that he received to the executors, and then they to pay it rather than he.

Doct. The executors have no farther meddleng with it, as this case is: for when they performed the bequest, they were discharged against both the other in law and conscience: and also he to whore the bequest was made stood not in this case charged to the executors; for against them he had good title by the law: and so this charge standeth only against him that the debt is owing to. And the same law, that is in this case upon a debt upon a contract, as if the testator had done a trespass whereupon he ought to have made restitution, that is to say, that he to whom the bequest is made, is bound to make the amends for the trespass: for it should be no discharge to him to pay it again to the executors without they paid it over, and it were uncertain to. him whether they should pay it or not. And therefore to be out of peril, it is necessary that he pay it himself, and then lie is surely discharged against all men.