Non-residents, if citizens of another state of the Union, are not disqualified in the absence of statute;" but the court may in its discretion refuse to grant letters on the ground of non-residence alone."" A poor man, if he provide the requisite security, and be sober, honest, and capable, cannot be denied the right to administer simply because he is poor; but an insolvent person is disqualified, since he may be driven to apply the property of the estate in his own relief, and public policy demands that he shall not be placed in a position of such peril. Improvidence is not necessarily a disqualification, but is made so by statute in some states. It must, however, as a general rule, be such as to display a lack of intelligence, or trustworthiness, as in the case of a professional gambler."" Incompetency in business is not a disqualification, unless it can be shown that it is likely to prove prejudicial to the estate, in case of appointment, especially when it is proven that the applicant is a person of intelligence and sound judgment.' 147 180 A lack of understanding will not disqualify, as a general rule, unless it amount to a lack of intelligence, 14 and mere illiteracy is not a disqualification, though it amounts to inability to read and write;"" nor will age nor bodily infirmity" disqualify, though in all such cases the appointment depends in a large degree upon the discretion of the court or officer who grants the letters.' A good mind and sound judgment, a knowledge of the value of property and of the practical business transaction of it, is sufficient to satisfy the requirement of the law.""" Prejudice or hostility to others interested in the estate is not sufficient ground for refusing to grant letters of administration; but where the person otherwise entitled has an interest antagonistic to that of the estate, or of the other 154 143 64 Md. 360 (1885). 1445 Dana (Ky.) 157 (1837). 145 112 Pa. 294, 300 (1886). 146 12 Misc. R. (N. Y.) 472 (1895). 147 12 Pa. Co. Ct. 339 (1892). 148 12 Misc. R. (N. Y.) 472 (1895). 149 27 Md. 391 (1867). 1511 Dist. Rep. (Pa.) 317 (1891). 15488 Cal. 478 (1891). 155 distributees, or stands as a litigant party in opposition to them, he is incompetent to act.' For this reason, a surviving partner is not competent to administer in the estate of his deceased partner." 186 Adverse interest is peculiarly a disqualification when connected with a suspicion of fraudulent conduct toward others interested in the estate. The least taint of fraud is a conclusive objection to the appointment in such cases. It works a legal incompetency to perform the duties of the office, which is of such trust and confidence that it should under no circumstances be committed to a person wanting in good faith and in whom confidence cannot be reposed.17 Bad character, as a general rule, if not creating a suspicion of dishonesty, is no disqualification, nor is conviction of a mere misdemeanor. No degree of moral guilt or delinquency is sufficient to exclude a person from the administration, in the cases of preferences given by the statute, unless such person have been actually convicted of an infamous crime." And the use of intoxicating liquors will not disqualify, unless it amount to habitual drunkenness.' 158 159 PREFERENCE AMONG PERSONS OF THE SAME CLASS 22. Although, as has been shown, the priority prescribed by statute must generally be observed, unless the person entitled to appointment be disqualified, when several persons stand in the same degree of kinship to the decedent, the court or officer who grants the letters is necessarily vested with a large discretion as to the selection of an administrator from among them.' He may, if he please, appoint all who do not renounce; but he also may pass over the rest, and appoint any one or more, at his pleasure, as he deems them most suitable. Usually, however, the wishes of those interested in the estate or of the majority of them, if they cannot agree, will be considered in making the appointment.11 155 11 Pa. 157 (1849). 156 52 Ill. 336 (1869). 1574 Watts (Pa.) 34 (1835). 1581 Barb. Ch. (N. Y.) 45 (1845). 160 159 12 Misc. R. (N. Y.) 472 (1895). 160 112 Pa. 294 (1886). 161 49 N. J. Eq. 558 (1892). 162 Where the court is left entirely to its own discretion, the consideration of age and sex is usually allowed to govern in making the appointment. Other things being equal, the older are preferred to the younger, and males to females."** But preference will not be given to a male of bad character,*** and an unmarried woman will be preferred to a married one, though the latter be older.15 166 RENUNCIATION OF THE RIGHT 23. One who is entitled to administer, like an executor, may renounce that right; and renunciation may be implied from any act inconsistent with a claim of the right to administer, such as failure to apply within the time specified by statute, or requesting the appointment of another.""" An express renunciation must be in writing, or by some act of record, or it will be of no effect. A renunciation by one entitled to be appointed administrator cannot be retracted after letters are granted to another;"" and, in some of the United States, cannot be retracted at all.17° 168 170 EFFECT OF APPOINTMENT 24. When the appointment of an executor or administrator is wholly void, all acts done under the authority of the appointment are void also," except such as may be done by a stranger or an executor de son tort, as, for example, the payment of the funeral expenses,' or the payment of debts due the decedent;"" but, if the appointment be voidable only, anything lawfully done under its authority before it is revoked will be valid." 172 At common law, the appointment of a debtor of a testator as executor extinguished the debt, if there were assets 162 16 Pa. 110 (1851). 163 55 N. J. Eq. 764 (1897). 1642 N. Y. Supp. 631 (1888). 165 61 Md. 250 (1883). 166 66 Md. 298 (1886). 167 44 Md. 625 (1876). 168 108 N. C. 559 (1891). 1691 Cush. (Mass.) 525 (1848); 15 Pa. Co. Ct. 397 (1894). 170 80 Md. 233 (1894). 171 10 Misc. R. 325 (1894). 172 12 Tex. 285 (1854). 173 88 N. C. 584 (1883). 174 67 Ill. 46 (1873). 176 sufficient to pay the debt, and legacies;"" but this rule was rejected by the court of equity, which held the debt was still assets of the estate in the hands of the executor for which he was accountable as such; and the courts of the United States have generally adopted the equitable rule." The appointment of a creditor as executor does not extinguish the debt, unless assets come into the executor's hands, in which case he can retain the amount of his debt out of those assets and the debt is extinguished. OATH AND BOND 178 25. Before an executor or administrator is fully entitled to enter upon the duties of his office, he must qualify. This is done, in the case of an administrator, by taking the oath and giving the bond required by statute; an executor must take an oath, but whether he must give bond depends on the statutes of the particular states. In England, the rule is to require bonds of executors when they are considered necessary for the protection of estates.' In the United States, the English rule is followed in some states, and, in others, bonds are required of executors unless the security be dispensed with by will." The effect of a failure to qualify varies in different states. In some, it renders the appointment void, and all acts done under it void also;1° in others, it is held that it merely renders the appointment voidable, and that all acts done before the appointment is revoked are valid. But, if the persons interested in the estate consent, an executor or administrator may act without taking oath or giving bond." The provisions as to the giving of bond by an executor vary, as above stated, in several of the United States. In some, he must give bond in any event; in others, he must give bond unless the will dispense with it; while, in still others, there is no statutory requirement of a bond. A provision in a will that the executor need not furnish sureties 175 19 Johns. (N. Y.) 188 (1821). 1781 Ch. Cas. (Eng.) 121 (1681). 181 179 106 Mass. 15 (1870). 180 10 B. Monr. (Ky.) 327 (1850). 181 96 Ga. 322 (1895). 18241 Ind. 583 (1873). 182 188 184 187 183 189 will not relieve him of the necessity of giving his personal bond, if a bond be required by statute. Even where a bond is not required by the statute or is dispensed with by the will, the court may require one, if it be deemed necessary for the protection of the estate, at the demand of any person interested therein; as where the executor has become insolvent after the death of the testator," has mismanaged"" or wasted the estate,' has used its funds for his own purposes, or has otherwise acted in such manner as to create a well-founded suspicion of danger to the estate, or is incapable of properly attending to its management.""" But mere poverty of an executor will not render security necessary; nor insolvency existing when he was appointed;"" nor the fact that he is not possessed of property of his own, equal in value to the estate which he is called upon to administer.193 A new or additional bond may be required when, for any reason, the old bond does not furnish sufficient security,' or where real estate is sold under order of court.' 191 195 194 The form of the bond to be given by an executor or administrator, the penalty, the number of sureties, and who may be sureties, are usually regulated by statutes; and for these matters reference must be had to the statutes of the various states.' 196 INVENTORY AND APPRAISAL 26. When an executor or administrator has been appointed and has qualified, his duty is to make and file in the proper office an inventory and appraisal of the effects of the decedent that will come into his hands for administration. This is usually required to be done within a specified time, which depends on the statutes of the different states; and, if 183 15 R. I. 566 (1887). 1847 Bush (Ky.) 504 (1870). 185 148 Pa. 564 (1892). 186 16 N. J. Eq. 486 (1864). 1873 Lea (Tenn.) 366 (1879). 188 27 Pa. 237 (1856). 189 35 N. J. Eq. 111 (1882). 1909 Kulp (Pa.) 116 (1897). 196 See Appendix. |