ment.41 But at common law this restriction did not prevail, the reason being that an alien executor did not act for his own use but in the right of another.42 And nonresidence did not, at common law, disqualify one from being appointed administrator.43 As to an alien enemy, it was long doubted whether he could maintain an action as executor since the policy of the law is that an alien enemy shall not be allowed to recover effects which might be taken from the kingdom to its detriment and for the enrichment of the enemy; but to the contrary it is said that if the law allows such alien enemy as executor to possess the effects of another, he should be allowed the power to maintain an action to recover them, since otherwise the creditors of the deceased might be precluded from recovering their debts from the assets of the estate.** § 1200. Statutory Regulations as to Aliens or Non-Residents Acting as Executors or Administrators. The rule of the common law has been variously changed by statute in many jurisdictions. For instance, in California the only matters which disqualify an executor named in the will from acting as such are minority, conviction of an infamous crime, or incompetency by reason of drunkenness, improvidence, or want of understand 41 Godolph, pt. 2, ch. 6; Wentworth, Off. of Exr. (14th ed.), p. 39. 42 Godolph, pt. 2, ch. 6, § 1; Caroon's Case, Cro. Jac. 8; Bacon Abr., tit. Exrs. & Admrs. A., 4; Williams Exrs. (3d Am. ed.) *187; In re Bailey's Estate, 31 Nev. 377, Ann. Cas. 1912A, 743, 103 Pac. 232; In re Peele's Estate, 85 S. C. 140, 67 S. E. 135; Cutler v. Howard, 9 Wis. 309. As to disabilities of aliens generally, see §§ 319-325, and as affected by statute and treaty. 43 In re Peele's Estate, 85 S. C. 140, 67 S. E. 135, criticising Estate of Neubert (Burkhim v. Pinkhussohn), 58 S. C. 469, 36 S. E. 908. 44 Bacon Abr., tit. Exrs. & Admrs. A., 4; Wms. Exrs. (3d Am. ed.) **187, 188. ing or integrity.15 As. to administrators, in addition to the foregoing qualifications, no one can act as such who is not a bona fide resident of the state of California.46 In other jurisdictions where the common law has been adopted by statute when not repugnant to other laws, letters of administration may be granted to nonresidents. It may generally be stated that in the absence of any direct prohibition denying a non-resident the right to take out letters of administration in proper cases, letters will issue to a citizen of another state.48 Under some statutes it is declared that letters shall not be issued 45 Cal. Code Civ. Pro., § 1350. 46 Cal. Code Civ. Pro. § 1369. See, also, Boynton v. Heartt, 158 N. C. 488, Ann. Cas. 1913D, 616, 74 S. E. 470; Butcher's Heirs V. Kunst, 65 W. Va. 384, 64 S. E. 967. In construing a statute which declares incompetent to serve as administrator one "who is not a bona fide resident of the state," the Supreme Court of California has declared that a non-resident may be appointed executor, but he must personally submit himself to the jurisdiction of the court, and his application may be made by himself or by attorney, for where made by attorney he is constructively present. The words "absent from the state" mean a person both actually and constructively absent. In re Brown, 80 Cal. 381, 22 Pac. 233. While the non-resident surviving wife of a decedent testator may be incompetent to serve as administratrix, with the will annexed she may request and have appointed by the court a competent person to act as administrator.-In re Stevenson, 72 Cal, 164, 13 Pac. 404. A provision of the code excluding non-residents from acting as administrators is not repealed by another provision of the code which declares "when the person so entitled is a non-resident," his identity may be proved in a certain way.-Estate of Beech, 63 Cal. 458. Where a widow became a nonresident she became disqualified to act as administratrix of her deceased husband.-Becker v. Arr, 243 III. 77, 90 N. E. 181. 47 In re Bailey's Estate, 31 Nev. 377, Ann. Cas. 1912A, 743, 103 Pac. 232. 48 Fulgham v. Fulgham, 119 Ala. 403, 24 So. 851; Carpigiani v. Hall, 172 Ala. 287, Ann. Cas. 1913D, 651, 55 So. 248; Gale v. Corey, 112 Ind. 39, 13 N. E. 108, 14 N. E. 362; Penney's Succession, 10 La. Ann. 290; Ehlen v. Ehlen, 64 Md. 360, 1 Atl. 880; Robinson v. Oceanic Steam "to a person not a citizen of the United States, unless he is a resident of the state," and the effect of this is to permit the appointment of one not a citizen if he be a resident.49 § 1201. Infants as Executors or Administrators. Under the early rule of the common law, an infant, no matter how tender his years,5° and even a child en ventre sa mere, being considered as actually born,51 were capable of being appointed executors. But by the statute of 38 Geo. III, ch. 87, § 6, if an infant was appointed sole executor, he was disqualified from executing the duties of the trust during his minority, and administration with the will annexed was granted to his guardian or other suitable person until the infant attained the age of twentyone years. This statute, however, did not apply to a case where more than one executor was named and one of them was of full age, since the one of full age could administer the trust.52 But now, generally, by statute, because of their incompetency to bind themselves or render themselves liable to account for property which may come into their hands during minority, infants are precluded from Nav. Co., 112 N. Y. 315, 2 L. R. A. 636, 19 N. E. 625; Ex parte Barker, 2 Leigh (Va.) 719. A statute providing that no non-resident shall be appointed to act as executor does not violate the constitution of the United States granting equal privileges and immunities to the citizens of several states, nor does it deprive one of liberty or property without due process of law.-In re Mulford, 217 Ill. 242, 108 Am. St. Rep. III Com. on Wills-3 249, 3 Ann. Cas. 986, 1 L. R. A. (N. S.) 341, 75 N. E. 345. 49 Tanas v. Municipal Gas. Co., 88 App. Div. 251, 84 N. Y. Supp. 1053; In re Arbuckle, 77 Misc. Rep. 309, 137 N. Y. Supp. 683. 50 Swinb., Wills, pt. 5, § 1, pl. 2. 51 Godolph, pt. 2, ch. 9, § 1. As to legal disabilities imposed because of infancy, see §§ 298-300. 52 Foxwist v. Tremain, 1 Mod. 47. See, post, Administration Durante Minore Ætate. acting as executors or administrators, and the appointment of an infant to such an office through inadvertence or mistake, may be revoked by the court.53 This matter depends upon the statute; in one jurisdiction the granting of letters of administration to a minor has been held voidable only, in another to have been absolutely void and subject to collateral attack.55 54 § 1202. A Married Woman as Executrix or Administratrix. According to the canon law, a married woman could be appointed executrix and act as such without the consent of her husband.56 But at common law the individuality of a woman upon marriage was merged into that of her husband, he being deemed to have the controlling mind. The fact of coverture did not preclude a married woman from acting as executrix, but since the legal existence of a woman was suspended during marriage and merged into that of her husband,57 the consent of the husband was necessary in order that she might undertake the duties of the trust.58 A feme sole might be appointed executrix, but if she married before the determination of 53 Carow v. Mowatt, 2 Edw. Ch. (N. Y.) 57. 54 Davis v. Miller, 106 Ala. 154, 17 So. 323. 55 Knox v. Nobel, 77 Hun 230, 28 N. Y. Supp. 355. 56 Godolph, pt. 2, ch. 10, § 3; Bacon's Abr., tit. Exrs. & Admrs. A., 8. 57 1 Bl. Com. * 442. 58 Godolph, pt. 2, ch. 10, §§ 2, 3; Thrustout v. Coppin, 2 W. Bl. 801; Palmer v. Oakley, 2 Doug. (Mich.) 433, 47 Am. Dec. 41; Nickelson v. Ingram, 24 Tex. 630. As to legal disabilities of married women, see §§ 301-311. At common law a husband had to be joined in all actions by or against his wife; therefore a married woman whose husband was not within the jurisdiction and amenable to process was precluded from taking possession of and administering the assets of the estate. Taylor v. Allen, 2 Atk. 213. A married woman with the consent of her husband may be appointed administrator with the will 60 her office, her powers thereupon ceased, and either her husband became co-executor with her,6° or he might take upon himself the sole administration of the estate and administer it in her right."1 At common law and before the statute of Westminster 2, 13 Edw. I, ch. 19, the disposition of the estates of intestate decedents and the granting of administration thereon were under the absolute control of the ordinary, and if a man died intestate, neither his widow, child nor next of kin had any right to share in his personal estate.62 This was subsequently changed by statute.63 The right of a married woman at the present day to act as executrix or administratrix is largely a question of statute.64 The common law disabilities of married women have been removed to a great extent in most of the jurisdictions. In some states, however, an executrix or administratrix appointed as such while unmarried annexed, or as it is called in 59 Pistole v. Street, 5 Port. (Ala.) 64; Moss v Rowland, 3 Bush (Ky.) 505; Hamilton v. Levy, 41 S. C. 374, 19 S. E. 610. 60 Dowty v. Hall, 83 Ala. 165, 3 So. 315; Sands v. Hickey, 135 Ala. 322, 33 So. 827. "If a married woman be an executrix or administratrix, the husband has a joint interest with her in the effects of the deceased, such as devolves the whole administration upon him, and enables him to act in it to all purposes with or without her assent. In case of the husband's death, the interest never having been divested, shall survive to her; but if she die, it shall not survive to the husband, inasmuch as it belonged to him merely in her right as representative of the deceased."-Toller on Executors. 61 Thrustout v. Coppin, 2 W. Bl. 801; Ferguson v. Collins, 8 Ark. 241; In re Stewart, Appellant, 56 Me. 300; Gates v. Whetstone, 8 S. C. 244, 28 Am. Rep. 284. 62 Bacon's Abr., tit. Exrs. Admrs., E., 1. See, also, § 1181. 63 See § 1181. 64 Hamilton v. Levy, 41 S. C. 374, 19 S. E. 610. 1 |