323 *CHAPTER THE SIXTH. OF THE EXECUTOR'S REFUSAL OR ACCEPTANCE OF THE OFFICE. SECTION I. When and how the office may be refused. The office of executor being a private one of trust, named by the testator, and not by the law, the person nominated may Executors cannot refuse, though he cannot assign the office (a); and even be compelled to if in the lifetime of the testator he has agreed to accept the office, it is still in his power to recede (b).1 accept the office: the executorbut might be condinary to accept or refuse. vened by the Or But though the executor cannot be compelled to accept ship, whether he will or not, yet by stat. 21 Henry VIII. c. 5, s. 8, the Ordinary might convene before him (c) any person made and named executor of any testament, "to the intent to prove or refuse the testament," and if he neglected to appear, he was, previous to the stat. 53 Geo. III. c. 127, punishable by excommunication for a contempt (d); and might subsequently be dealt with in the mode substituted by that statute, s. 2, for excommunication (e). This power of citation to take or refuse probate was, it is apprehended, transferred to the Court of Probate by the 23rd section of the Court of Probate Act, 1857, and now to the probate division of the High Court of Justice, and a neglect to appear to the citation may be punished as for a contempt of the court under the 25th section. (a) Bac. Abr. Exors. (E.) 9. See Douglas v. Forrest, 4 Bingh. 704, in the judgment of Best, C. J. (b) Doyle v. Blake, 2 Scho. & Lef. 239. 1. It is contrary to public policy to allow persons standing in the position of trustees to use their relations with the trust property to their personal advantage. Therefore, an agreement for a consideration to renounce an executorship is illegal, because against public policy. Ellicott v. Chamberlin, 11 Stew. (N. J.) 604; Staunton v. Packer, 19 Hun 55. So, too, is an agreement to relinquish the right of administration for a pecuniary consideration against public policy, and void. Bowers v. Bowers, 26 Pa. St. 74. Owings v. Owings, 1 Gill & H. 484. (c) See stat. 1 Edw. VI. c. 2, as to the form of the citation. (d) Wentw. Off. Ex. 88, 14th edit. Treat. on Eq. Bk. 4, Pt. 2, c. 1, s. 4. (e) See stat. 2 & 3 W. IV. c. 93. (Act for enforcing process upon contempts in the Courts Ecclesiastical.) *The time allowed to the person named executor, to deliberate whether he will accept or refuse the executorship, is uncertain, and left to the discretion of the judge, who has used, at his pleasure, not only within the year, but within a month or two, to issue his citation (f). Letters ad colligendum: If he appear, either on citation or voluntarily, and pray time to consider whether he will act or not, the Ordinary might, though the practice seems now obsolete, grant letters ad colligendum in the interim (g). But if he appear, and refuse to act or fail to appear to the above-mentioned process, administration cum testamento annexo will be granted to another (h).2 administration cum testamento annexo. Stat. 21 & 22 Vict. c. 95, s. 16: executor not act ing or not appear And by stat. 21 and 22 Vict. c. 95, s. 16, "whenever an executor appointed in a Will survives the testator but dies without having taken probate, and whenever an executor named in a Will is cited to take probate and ing to a citation does not appear to such citation, the right of such person he had renounced. in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his effects shall and may, without any further renunciation, go, devolve and be committed in like manner as if such person had not been appointed to be treated as if (f) Swinb. Pt. 6, s. 4. Godolph. Pt. 2, c. 19, s. 1. (g) Broker v. Charter, Cro. Eliz. 92. Treat. on Eq. Bk. 4, Pt. 2, c. 1, s. 4. Toller, 41. (h) Swinb. Pt. 6, s. 1, pl. 3, s. 2, pl. 3, 4. See as to administration cum testamento annexo, generally, post, Pt. I. Bk. V. Ch. III. § I. 2. A trust power under a will does not pass to an administrator cum testamento annexo, even where the executor, in whom the trust was reposed, renounces, but such power remains in the executor and trustee, originally appointed. Treadwell v. Cordes, 5 Gray 341, 359; Tainter. Clark, 13 Met. 220; Clark v. Tainter, 7 Cush. 567; Parker v. Sears, 117 Mass. 513. (i) This enactment seems, in effect, to extend the 79th section of the stat. 20 & 21 Vict. c. 77 (post, p. *233), to the case of a party cited, who will not renounce or take any step. Therefore, where an executor to whom power has been reserved survives his acting coexecutor, and does not appear to a citation, the case will stand as if his name had never appeared in the will, and the executor, if any, of the acting executor will be the representative of the original testator: In the Goods of Noddings, 2 Sw. & Tr. 15. So on the death of an executor, without having either renounced or taken probate, the executor of the survivor of two acting executors becomes the personal representative of the original deceased: In the Goods of Lorimer, 2 Sw. & Tr. 471. The section applies where the executor is cited to take probate of a copy of a will, and does not appear: Davis v. Davis, 31 L. J., P. M. & A. 216. 3. Yet an executor is not lightly, or by slight or indirect circumstances, to be precluded from the trust the testator In what cases an fuse : he cannot if he once administer. And Executor liable to way duty if he does Although, as above stated, an executor has his election *whether he will accept or refuse the executorship, yet he may determine such election, by acts which amount to an admin- executor may reistration. For if he once administer, it is considered that he has already accepted of the executorship, and the court may compel him to prove the will (j).4 if an executor take possession of, and in any administer, any part of the personal estate, without obtaining probate of the will within six months of the death of the testator, or within two months after the termination of any suit or dispute respecting the will, if month of terthere be any such, which shall not be ended within four months after the death of the testator, he is liable to a penalty of intended to confide in him. Matter of Maxwell, 2 Gr. Ch. 611. But the failure of an executor to take out letters is equivalent to a refusal of the office. Jackson v. Jeffries, 1 Marsh. 88. So, too, the neglect to apply for letters within the proper time, or the acts or conduct of the party entitled may be taken to be a renunciation. Pollard v. Mohler, 55 Md. 284. And where an executrix duly qualified in Connecticut failed to qualify in Illinois for seven years, it was held that such failure amounted to a renunciation on her part. Ives v. Jacksonville Bank, 28 Ill. App. 563. And in Alabama, by statute (Code, 1876, §§ 2345-50; amended 1878-79, p. 59), if an executor does not apply within thirty days after probate, or the widow within forty days after the testator's death, it follows that they have surrendered and renounced; and letters will be granted to a creditor. Wheat . Fuller, 82 Ala. 572. Where the widow of the testator was designated in his will as the sole executrix, she can decline to act in that capacity, and yet might be appointed administratrix cum testamento annexo, and might act jointly with another ad penalty of double not obtain pro bate within six tor's death: months of testa or within two mination of probate suit. minstrator in that capacity. Acceptance of the appointment would not make her executrix in fact, but would rather be evidence of her renunciation. Briscoe v. Wickliffe, 6 Dana 157. () Godolph. Pt. 2, c. 19, s. 2. Swinb. Pt. 6, s. 2, pl. 6, s. 22, pl. 1. Bro. Exors. pl. 90. Long v. Symes, 3 Hagg. 774. Mordaunt v. Clark, L. R. 1 P. & D. 592. 4. The probate of a will and qualify. ing as executor thereto, is an acceptance of a trust of personalty declared therein, and the executor cannot afterward refuse to perform that trust. Worth v. M'Aden, 1 Dev. & B. Eq. 199. A query is raised, however, in this case whether the executor can at the time of qualifying, by some solemn and authentic act, renounce the office of trustee for a trust of personalty declared in the will. It seems that he cannot. Id. Where a trust is created by a will in a party who is also executor, the probate of the will and taking out of letters testamentary thereon by such party, are sufficient evidence of the acceptance of the trust. Hanson v. Worthington, 12 Md. 418. double the amount of duty chargeable, which penalty becomes a debt due from him to the crown, recoverable by any of the ways or means in force for the recovery of probate, legacy or succession duties (k). Nor can the ex ecutor refuse if If an executor of an executor intermeddle in the administration of the effects of the first testator, he cannot refuse the adminisecutor of an ex-tration of the effects of the latter: And it has now been once administer. decided in accordance with the practice of the Prerogative Court that he cannot take upon himself the latter and refuse the former (1). The court may tor's refusal, not has administered. Although there are old cases to the contrary, the law, it should. seem, is now taken to be, that the court may (though accept the execu- perhaps it ought not) accept the executor's refusal, notwithstanding he withstanding he has administered (m).5 So if the executor has acted, and the court, not knowing it, commits administration to another, though the administration may be revoked, and the executor compelled to prove the will (n), yet the grant of administration cum testamento annexo, until so revoked, is valid; and, consequently, in neither of these cases can a debtor to the testator, in answer to a suit by such administrator, set up the act in (k) 55 Geo. III. c. 184, § 37, amended by the Customs and Inland Revenue Act, 1881. 44 Vict. c. 12, § 40. (1) Brooke v. Haymes, L. R. 6 Eq. 25. In the Goods of Perry, 2 Curt. 655. (m) 1 Roll. Abr. Exor. (C.) 2, p. 907. Wentw. Off. Ex. 91, 14th edit. 2 Scho, & Lefr. 237. Factum valet, says Wentworth, quod fieri non debuit. See also Jackson v. Whitehead, 3 Phillim. 577. 5. However, in some of the states, it is held that the court cannot accept the refusal of the executor to act, after he has administered. Thus in Massachusetts, it is said that an executor, after the probate of the will, accepting the trust and giving bonds for its faithful execution, cannot renounce, Sears v. Dillingham, 12 Mass. 358; and in North Carolina, it is held that an executor who has entered upon the discharge of his trust, cannot thereafter resign it, Washington v. Blount, 8 Ired. Eq. 253; and it is also said that the Court of Probate may accept his refusal at any time before he has intermeddled with the effects of his testator, although it be after he has proved the will. Mitchel v. Adams, 1 Ired. 298. An executor who has taken the oath, but has not administered or in any way intermeddled with the effects, may renounce, and his renunciation may at such time be accepted by the court. Miller v. Meetch, 8 Pa. St. 417. However, in a later case, it was held that the taking of the oath is a full and conclusive act, and it is evidence that the executor has made his election to accept the office, and that, after the oath taken, he cannot divest himself of the office. Bowman's Appeal, 62 Pa. St. 166, 169. (n) Wentw. Off. Ex. 91, 14th edit. Godolph. Pt. 2, c. 31, s. 3. pais of the executor against his renunciation, in order to delay or prevent a recovery by the administrator (o). If one of several executors, after intermeddling with the effects, renounces, his renunciation is invalid, and the record of it on the probate granted to his co-executors ought to be canceled (p). his Renunciation of ecutors after in one of several ex termeddling invalid. The executor is liable to be sued, although adminis tration be granted to another, if he The only sense in which the committing of the administration under such circumstances can now be said to be void, is, as far as respects the protection of the executor: for if he has once administered, he will remain liable to be sued as executor, both at law and in equity, in spite of renunciation, and the consequent appointment of an administrator (9). So if an executor administer to part of the assets, he shall be charged with the receipts, as executor, though he renounced the executorship, and paid the money to the other executor who proved the will (r). has administered. Question of liabilcreditors The general question as to the liability, to creditors and legatees, of an executor who renounces after an act of administration, or who proves the will, and then professes to re- ity to and legatees of nounce his representative character, will be considered executor renounc at large in a subsequent part of this treatise (s). administration. an administration. With respect to what acts will amount to an administering, such as to render an executor compellable to take probate, two general rules may be laid down: 1st, That whatever the executor What amounts to does with relation to the goods and effects of the testator, which shows an intention in him to take upon him the executorship, will regularly amount to an administration. 2ndly, That whatever acts will make a man liable as an *executor de son tort (t), will be deemed an election of the executorship (u). Hence, it has been adjudged, that if the executor takes possession of the testator's goods, and converts them to his own use, or disposes (0) Doyle v. Blake, 2 Scho. & Lefr. 237. (p) In the Goods of Badenach, 3 Sw. & Tr. 465, in which case one of several co-executors who had renounced after intermeddling was allowed, notwithstanding section 79 of 20 & 21 Vict. c. 77, to retract his renunciation on the ground that the renunciation was invalid after intermeddling. (9) Wentw. Off. Ex. 92, 14th edit. (r) Read v. Truelove, Ambl. 417. (8) Post, Pt. IV. Bk. II. Ch. II. § II. (t) See ante, Ch. V. p. *208, et seq., as to what acts will constitute a man executor de son tort. (u) Godolph. Pt. 2, c. 8, s. 1, and s. 6. Bac. Abr. tit. Executors (E.) 10. Toller, 43. Rayner v. Green, 2 Curt. 248; but see Wentw. Off. Ex. c. 3, p. 94, 14th edit. |