10th question of the student

Stud. A man seised of certain land in his demesne as of fee, hath issue two sons, and deed seised, after whose death a stranger abateth, and taketh the profits, and after the eldest son dieth without issue, and his brother bringeth an assize of mortdancestor as son and heir to his father, not making mention of his brother, and recovereth the land with damages from the death of his father, as he may well by the law: whether in this case is the younger brother bound in conscience to pay to the executors of the eldest brother the value of the profits of the said land that belonged to the eldest brother in his life, or not?

Doct. What is thine opinion therein?

Stud. That like as the said profits belonged of right to the eldest brother in his life, and that he had full authority to have released as well the right of the said land as of the said profits, which release should have been a clear bar to the younger brother for ever; that the right of the said, damages, which be in the law but a chattel, belong to his executors, and not to the heir; for no manner of chattel, neither real nor personal, shall after the law of the realm descend unto the heir.

Doct. Thou saidest in the case next before, that it is not of the law of reason, that a man shall make executors, and dispose of his goods by his will, and that the executors shall have the goods to dispose, but by the law of man; and if it be left to the determination of the law of man, that in such cases as the law giveth such chattels unto the executors, they shall have good right unto them, and in such cases as the law taketh such chattels from them, they been rightfully taken from them: and therefore it is thought by many, that if a man sue a writ of Right of Ward of a ward, that he hath by his own fee, and dieth hanging the writ, and hes heir sue a re-summons, according to the statute of Westminster 2, and recovereth; that in that case the heir shall enjoy the wardship against the executors, and yet it is but a chattel. And they take the reason to be, because of the said statute. And so it might be ordained by statute, that all wards shall go to the heirs, and not to the executors. Right so in this case, sith the law is such, that the younger brother shall in this case have an assize of mortdancestor as heir to his father, not making any mention of his elder brother, and recover damages as well in the time of his brother as in his own time; it appeareth that the law giveth the right of these damages to the heir, and therefore no recompence ought to be made to the executors, as me seemeth. And it is not like to the writ of Aiel, where, as I have learned in Latin, (sith our first dialogue) the demandant shall recover damages only from the death of his father, if he overlive the AM: and the cause is, for that the demandant, though his Aiel overlived his father, must of necessity make his conveyance by his father, and must make himself son and heir to his father, and cousin and heir to his Aiel; and therefore in that case, if the father overlived the Aiel, the abator were bounden in conscience to restore to the executors of the father the profits run in hes time (for no law taketh them from him); but otherwise it is in this case as me seemeth.

Stud. If the younger brother in this case had entered into the land without taking any assize of mortdancestor, as he might if he would, to whom were the abator then bounden to make restitution for those profits, as thou thinkest?

Doct. To the executors of the eldest brother; for in that case there is no law that taketh them from them, and therefore the general ground, which is that all chattels shall go to the executors, holdeth in that case; but in this case that ground is broken and holdeth not, for the reason that I have made before. For commonly there is no general ground in the law so sure, but it faileth in some particular case.