*If the feme obligee take the obligor to husband, this (455)* is a release in law. The like law is, if there be two 11 H. 7. 4. 20 H. 7.

29. 8 Ε. 4.3.

same hand should at once pay and receive the same debt. And, therefore, he may appropriate a sufficient part of the assets, in satisfaction of his own demand; otherwise ne would be exposed to the greatest hardship; for, since the creditor who first commences a suit is entitied to a preference in paymeat, and the executor can commence no suit, he must, in case of an insolvent estate, necessarily lose his debt, unless he has the right of retaining. Thus from the legal principle of the priority of such creditor as first commences an action, the doctrine of retainer is a natural deduction; but the privilege is accompanied with this limitation, that he shall not retain his own debt as against those of a higher degree; for the law places him merely in the same situation as if he had sued himself as executor, and recovered his debt, which there could be no room to suppose, during the existence of those of superior order. Toll. Law. Ex. 295, 296. Et vid. 2 Bl. Com. 511. 3 Bl. Com. 18, 19. Off. Ex. 32. 112, 143. Com. Dig. Admon C. 2. 5 Bac Abr. 686. Rol. Abr. 922, 923. Plowd. 185. 543. 11 Vin. Abr. 72. 261. Winch. 19. 3 Burr, 1580. 1384. But though an executor may retain both at law and in equity for his own debt, as against other creditors of the same degree, 11 Vin. Abr. 265. n. 1 P. Wms. 295. Georges v. Georges, 18 Ves. 206; yet equity will restrain him from perverting this privilege to the purpose of fraud Toll. Law. Ex. 298. Off. Ex. 33. But, if there are not assets, the action is not so much as suspended, and the executor may sue the heir, where the heir is bound. Rol Abr. 940. Salk. 304. So if a creditor be appointele ecutor with others, he may sue them, especially if he has not administered. Cro. Car. 372. Jon. 345. Off. Ex. 33. And the bare appointment of a creditor to be executor, if he refuse to act, will not extinguish his legal remedy for the recovery of his debt. Roulinson v. Shawe. 3. T. R. 557.

On the other hand, if a creditor appoints the debtor his executor, such appointment shall operate as a release and extin nishment of the debt; on the principle that a debt is merely a right to recover the amount by way of action, and as an executor cannot maintain an action against himself, his appointment by the creditor to that office discharges the action, and consequently discharges the debt. Toll. Law. Ex. 347, 348. Et vid. 5 Bac. Abr. 686. 2 Bl. Com. 511, 512. Off. Ex, 31. Salk. 299. Plowd. 186. Com. Dig. Admon. B., 5. Rol. Abr. 920, 921. 5 Co. 30. Thus, if the obligee of a bond make the obligor executor, this amounts to a release at law of the debt. 8 Co. 136. If several obligors be bound jointly and severally, and the obligee constitute one of them his executor, it is an extinguishment of the debt, and the executor is incapable of swing the other obligors. Off. Ex. 31.11 Vin. Abr. 308. So where the obligee in a joint and several bond made one of two oblgors his executor, with others, and the obligor executor administered; it was held that the action was discharged as to all the obligors, Che tham v. W'ard, 1 Bos. & P. 630, The debt is also released where only one of several executors is i debted to the testator, for one executor cannot maintain an action agai sanother. Off. Ex. 31; and after the death of such executor, the surviving executors cannot sue his representative for the debt. Id. 32. Plowd. 264. Leon. 320. Nor is the case varied by the executor's dying, without having proved the will, or having adımninistered (Salk. 300. Plowd. 184. Of. Ex. 31.), or even by his refusal to act with his co-executors (Salk. 308.), unless he formally renounced the office in the spiritual court. Salk. 307. In all these cases the legal remedy is destroyed by the act of the party, and therefore is for ever gone. Cro. Car. 373. Salk. 302; but the effect is different where it is suspended merely by the act of law. Slk. 303; as if administration of the effects of a creditor be committed to the

:

;

(455)*

femes obligees, and the one take the debtor to husband (D).

*If an infant of the age of seventeen years release a

debtor (Off. Ex. 32. 8 Co. 136. Sid. 79.), or if the executrix of an obligee marry the obligor (Leon. 320. Moor. 236. Salk. 306. Intra. 264 b.), this is only a temporary privation of the remedy by the legal operation of the grant or marriage. Toll. Law. Ex. 348, 349.

But where the testator has not left a fund sufficient for the payment of his own debts, in that case the debt of his exécutor shall be assets; the duty remaining, although the action at law be gone; and the executor shall be liable to account for such debt in the spiritual court, or in a court of equity. Ibid. Such discharge, however, shall in general be preferred to legacies. For the debt is considered in the light of a specific bequest, or legacy to the debtor, for the purpose of discharging the debt; and therefore, though like all other legacies, it shall not be paid, or retained till the debts are satisfied, yet the executor has a right to it exclusive of the other legatees. Id. 350. 2 Bl. Com. 312. But such debt shall not be released even as against legatees, if the presumption arising from the appointment of a debtor to the executorship be contradicted by the express terms of the will, or by strong inference from its contents. As where a testator leaves a legacy, and directs it to be paid out of a deht due to him from the executor; such debt shall be assets to pay not merely that specific legacy, but all other legacies 5 Bac. Abr. 687. Toll. Law. Ex. 350. In like manner, if he leave the executor a legacy, it is held to be a sufficient indication, that he did not mean to release the debt. And, in such case, the executor shall be trustee to the amount of the debt for the residuary legatee, or next of kin. Carey v. Goodinge, 3 Bro. C. C. 110. Ca Temp. Talb. 240. 4 Bro. P. C. 180. 5 Bac. Abr. 687. It seems, also, that the naming of a debtor executor, durante minoritate, is no discharge of the debt; since he is only executor in trust for the infant, till he comes of age. 11 Vin. Abr. 400. Ld. Raym. 605.-[Ed.]

(D) All contracts between the husband and the wife for debts due in præsenti, or in futuro, or upon a contingency, which may become due during the coverture, are by the marriage released and extinct, because the husband and wife make but one person in law; and it seems that an express agreement to the contrary would be void, as being inconsistent with the state of matrimony. 8 Co. 136. Dyer, 140. But promises, covenants, and agreements for the performance of a thing which is not to happen during the coverture, as payment of money after the husband's decease, are not released by the marriage. Smith and Ux. v. Stafford, Hob. 216. And in the case of Gage v. Acton, it was adjudged by two judges against Holt, C J., that where A. entered into a bond to his intended wife, conditioned to leave her at his death 1000l. if she survived him, such bond was not released by the marriage, as nothing would be due during the coverture, and as it would be contrary to the express agreement of the parties. But Lord C. J. Holt insisted strenuously, that a bond differed from a promise or covenant, being debitum in præsenti, though solvendum in futuro; and that the rule of law could not be controlled by the intention of the parties. Salk. 325. Ld. Raym. 515. Carth, 511. 12 Mod. 288. So, where a inan entered into a bond to his interded wife, conditioned to leave her 1000l. and the husband mortgaged his estate and died, not leaving personal assets to discharge the bond; it was decreed, that admitting the bond void at law, yet it ought to be made good in equity, and that she was entitled to redeem and to hold the laud till she was satisfied her debt. 2 Vern. 290.480. Et vid. Cannel v. Buckle, 2 P. Wms. 243. And it is now settled, that such a bond may be enforced at law against the heirs of the husband. Milbourne v. Ewart, 5 T. R. 381. Hayes, d. Foord v. Foord, there cited. - [Ed.] 1.

debt, this is void; but if an infant make the debtor his executor, this is a good release in law of the action (1)..

But if a feme executrix take the debtor to husband, this is no release in law, for that should be a wrong to the dead, and in law work a devastavit, which an act in law shall never work. And so it was adjudged in the king's bench, Mich. 30 & 31 Eliz. in which case I was of counsel.

20.

But it is to be observed, that there is a diversity be-30 E. 3.24. 32 Ε. 3. tween a release in deed, and a release in law; for if the tit. Scire Fac. 102. (Mo. 236. 1 L heir of the disseisor make a lease for life, and the dis- & Rep. 152. Plo. seisee release his right to the lessee for his life, his right 184 a. Finch. 294.) is gone for ever. But if the disseisee doth disseise the heir of the disseisor, and make a lease for life, by this release in law the right is released but during the life of the lessee: for a release in law shall be expounded more favourable, according to the intent and meaning of the parties, than a release in deed, which is the act of the party, and *shall be taken most strongly against himself (E); and so in the case aforesaid, where the debtor is made executor.

*265 a.

(456)*

LITTLETΟΝ.

*ALSO, these words which are commonly put in such releases (3), scilicet, (quæ quovismodo in futurum [Sect. 446.265 a.] What things may be habere potero) are as void in law; for no right pass-release

(3) Scil. &c, in L. and M. and Roh.

(1) "If the obligor make the obligee his executor, the obligee may retain; but that is not applicable to the case put here. Therefore he may make an executor at 17; tamen supra 89 b. (ante, vol. 1. p. 169.) it is said that it is at 18. It should seem that the case here is understood of 17 complete, et supra 89. of 18. beginning, and thus the passages agree. D'Avila His. King of France is major at 14 beginning. Thus, it seems, that puberty, which by the civil law holds from 14 to 18, is understood of 18 beginning; and thus our law agrees with the civil law, impuberi non licet testari before 17 complete, and 18 beginning." Lord Nott. MSS. [Butler, Note 211.]

(E) Formerly releases were construed with much nicety and great strictness, and being considered as the deed or grant of the party, were, according to the rule of law, taken most strongly against the releasor. They now, however, receive the same interpretation as other grants and agreements, and are favoured by the judges as tending to repose and quietness. Dyer, 56, 57 a. Plowd. 289. 8 Co. 48. Show. 154. Hence

But the low mastered stae above mens in any respec
On the anthent of the ige in act in, ser a te, note 1. to p. 232. t. The
parkaze in the text war cited richesse Trevor, in Sectiong

ad

on the case of 1-1er T. Botnom Fitzen 234. observatory that the Scene jaid 3.ws Liere by Le bimontraints On the tree yere gument, and dorse of contigent remainders, a 1 premis estates and teres, sea Bir Fearne's Emay on Comingent Remaindere ani Exceatary Devisel 60r el po. 364, 365. 66.007, 561,569,373, 371 34%, 549, 50, 551, 512.553 554, 55, 56, 557, 58, 59, 564 26156. and Vit. Proto's Treatise on Comenд. .. 1. p. 142. 209.3.1. The case of Rot, Ven. Perry Junes, 1 Hen. Васк 30. ms to have established the Twer of testamentary deport one of each entiment and exemtry estates and possibes, accomane, wita anatterist, as would he de seer the to the war of the of jete, deg hellire the consagericy or event, on when the verting or wedsition of their depenis.lt has been conteal; to be a rule of ow, that, whatever.ca be Jevisel may b grooted; accseguros.that fa's cars is an eut'iority to show, that the contingent and execut ry estates and interest, to which it appues, may be granted. Bodier, Note 212.1

(F) See ace. Artur v. Boekman, Penh, 224. With respect to the things that may be release L, it is a rale of aw, th tro possibility, right, tithe, or thing in action, smail be granted or assigned to a stranger, on arcoat of the danger of maintenance and of multiplying contentions Lrapet's ease. 19 Co. 45. Bet although a mere posat dity exnot be release 1 to a stranger, yet all rights, titles, and actions, may be risuel to the terre-tena L ir securing his repose and quiet, and for aroing contentions and suits; ani, therefore, a right or title to an es Late of frechai 1, be it in præsenti or futuro. may be released in five man

lst, To the tenant of the freevoll in fact or in 'aw, without any prvity. 21. To the person in remainder. 3d. To the person who is served of the reversion, without any privity, 4th, To the person who has right

1

be father and son, and the father be disseised, and the son (living his father) releaseth by his deed to the disseisor all the right which he hath, or may have in the same tenements, without clause of warranty, &c and after the father dieth, &c. the son may lawfully enter upon the possession of the disseisor, for that he had (1) no right in the land (5) in his father's life, but the right descended to him after the release made, by the death of his father, &c.

Note, a man may have a present right, though it cannot take effect in possession, but in futuro (2).

(4) nul, added in L. and M. and Roh.

(5) quant il relessasses, added in L. and M. and Roh.

only in respect of privity; as if the tenant be disseised, the lord may release his services, in respect of the privity and right, without any estate. 5th, In respect of privity only, without right; as if tenant in tail makes a feoliment in fee, the donee, after the feoffment, has no right, and yet, in respect of the privity only, the donor may release to him the rent and all services, saving fealty. Infra, 268 a. 10 Co. 48 a. So, if the terretenants and the person entitled to the right or possibility joined in a grant of the lands, it would pass them to the grantee, discharged from the right or possibility. Ibid.

:

With regard to the alteration in the common law, in respect of the assignment of choses in action, see ante, p. 113.n. (K3). As to the transmissibility, assignment, and devise of contingent remainders, see ante, p. 140. n. (K).-[Ed.]

(2) This doctrine was fully investigated in the case of Dormer v. Fortescue, Vin. vol. 18, fol. 413. 3 Atk. 123, 135. Bro. Par. Cas. v. 4. 353, 405 The case there was, that an estate was limited to the use of A. for 99 years, if he should so long live; and atter his decease, or the sooner determination of the estate limited to nim for 99 years, to the use of trustees and their heirs, during his life, upon trust to preserve the contingent remainders; and after the end of determination of that term, to the use of A.'s first and other sons successively in tail male, with several remainders over. A. having a son, they joined in levying a fine and suffering a common recovery, in which the son was vouched. If the trustees took a vested estate of freehold during the life of A., the recovery was void, there not being a good tenant to the præcipe; but if they took only a contingent estate, the freehold was in the son, and of course there was a good tenant to the præcipe. Upon this point, the case was argued in the court of king's bench, and afterwar is on appeal before the house of lorda, where all the judges were ordered to attend. Lord chief justice Lee, when the cause was heard in the king's bench, and lord chief justice Willes, in delivering the opinion of the judges in the house of lords, entered very fiully into the distinction between contingent and vested remainders. They seem to have laid down the following points. That a remainder is contingent, either where the person to whom it is limited is not in esse; or where the particular estate may determine before the remainder can take place: but that, in every case, where the

265 a.

secus as to a vested right to take effect in futuro;

,