became the settled rule in equity that a debt due from the testator's executor is to be considered as general assets of the estate for the payment of legacies.38

The reason for the common law rule that the appointment of a debtor as executor extinguished the debt, has been variously given, but the weight of authority seems to be that the debt amounted merely to a right of action to recover the same, and since the executor could not sue himself, the right was thereby suspended and lost, although there is authority for considering the appointment as a specific legacy to the debtor of the amount of the debt which, however, could not be retained until the other debts were satisfied.89 And at common law the rule prevailed that if there was no residuary legatee, the surplus of the estate of a decedent undisposed of by his will and remaining after the payment of all debts and legacies, passed to the executor by virtue of his appointment.10 This rule was abolished by the Executor's Act, 1830,41 and such residue remained in the hands of the executor as trustee only, for the benefit of those entitled to the same under the Statute of Distribution.12

In the United States the equity rather than the common law rule prevails. The common law rule that the appointment by a testator in his will of his debtor as the

38 Phillips v. Phillips, 2 Freem. 11; Hudson v. Hudson, 1 Atk. 460; Berry v. Usher, 11 Ves. Jun. 87, 90; Simmons v. Gutteridge, 13 Ves. Jun. 262, 264; Ingle v. Richards, 28 Beav. 366; Carey v. Goodinge, 3 Bro. C. C. 110; In re Hyslop, (1894) 3 Ch. 522.

39 Williams Exrs. (3d Am. ed.) **1123, 1124, 1128, 1129; Bacon's

Abr., tit. Exrs. & Admrs., A., 10; Tracy's Admx. v. Card's Admr., 2 Ohio St. 431.

40 Williams Exrs. (3d Am. ed.) **1263, 1264.

41 Statute of 11 Geo. IV and 1 Wm. IV, ch. 40.

42 Williams Exrs. (3d Am. ed.) **1264, 1265; Bacon v. Fairman, 6 Conn. 121, 129.

executor thereof was an extinguishment of the debt never prevailed in Massachusetts or in New York." The common law rule has not been favored by modern decisions.45 And in most of these United States the equity rule has been approved by decision or declared by statute; we may say generally in the United States that a debt due from an executor to the estate is not discharged by his appointment, but is considered as assets in his hands.16

The fact that one is the debtor of the decedent does not in itself disqualify such debtor from acting as executor or administrator; in the selection of an administrator, however, the circumstance of indebtedness is a matter to be considered by the court in the selection of a proper person to act as such administrator, but the fact itself is not a disqualification.*"

43 Bassett v. Fidelity etc. Co., 184 Mass. 210, 100 Am. St. Rep. 552, 68 N. E. 205.

44 Matter of Davis, 37 Misc. Rep. 326, 75 N. Y. Supp. 493.

45 Kaster v. Pierson, 27 Iowa 90, 1 Am. Rep. 254; Thomas v. Thompson, 2 Johns. (N. Y.) 471.

46 Arnold v. Arnold, 124 Ala. 550, 82 Am. St. Rep. 199, 27 So. 465; Matter of Walker, 125 Cal. 242, 73 Am. St. Rep. 40, 57 Pac. 991; Williams v. Morehouse, 9 Conn. 470, 475; Clark v. Patterson, 214 Ill. 533, 105 Am. St. Rep. 127, 73 N. E. 806; Mitchell v. Rice, 6 J. J. Marsh (29 Ky.) 623, 628; Hodge v. Hodge, 90 Me. 505, 60 Am. St. Rep. 285, 40 L. R. A. 33, 38 Atl. 535; Hoffman v. Armstrong, 90 Md. 123, 44 Atl. 1012; Bassett v. Fidelity

etc. Co., 184 Mass. 210, 100 Am. St. Rep. 552, 68 N. E. 205; Crow v. Conant, 90 Mich. 247, 253, 30 Am. St. Rep. 427, 51 N. W. 450; Probate Judge v. Sulloway, 68 N. H. 511, 73 Am. St. Rep. 619, 49 L. R. A. 347, 44 Atl. 720; Matter of Davis, 37 Misc. Rep. 326, 75 N. Y. Supp. 493; Moore v. Miller, 62 N. C. 359; Jones v. Willis, 72 Ohio St. 189, 74 N. E. 166; United Brethren First Church v. Akin, 45 Ore. 247, 2 Ann. Cas. 353, 66 L. R. A. 654, 77 Pac. 748; Anderson v. Anderson, 183 Pa. St. 480, 38 Atl. 1007; Rader v. Yeargin, 85 Tenn. 486, 3 S. W. 178; Robinson v. Hodgkin, 99 Wis. 327, 74 N. W. 791.

47 Kailer v. Kailer, 92 Md. 147, 48 Atl. 712; Churchill v. Prescott, 2 Bradf. Surr. (N. Y.) 304.

§ 1214. The Same Subject: Partners.

Although generally a testator may appoint one who is his partner at the time of his death, as the executor of his last will, yet the statutes of many states provide that if an intestate decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed to administer the estate.18 The reason of the rule is that the surviving partner becomes accountable to the estate for a settlement of the partnership assets and the turning over to the administrator of the interest therein of the decedent, and the partner should not be allowed to account to himself as a representative.19

§ 1215. Public Administrators.

A public administrator, generally speaking, is some special public officer charged with special duties, among them being the right to apply for and have granted to him letters of administration of the estates of decedents who have died intestate or where the executor named in the will is incompetent or refuses to act. A public administrator is generally a county officer and he may apply for letters only when the court sitting within his county

48 Cal. Code Civ. Pro., § 1369, as am'd 1907; In re Garber, 74 Cal. 338, 16 Pac. 233; Tilden v. Kendrick, 3 La. 471; Estate of Brown, 11 Phila. (Pa.) 127; Rowell v. Adams, 83 S. C. 124, 65 S. E. 207. Even though the surviving partner be a brother, he can not be administrator.- Cornell v. Gallagher, 16 Cal. 367.

Where it appears that the person to whom letters had been granted and the decedent were at

one time partners and that there were unsettled matters growing out of the relation at the time of decedent's death, the former partner was ineligible to act as administrator under the statute.-In re Garber, 74 Cal. 338, 16 Pac. 233.

49 Heward v. Slagle, 52 Ill. 336. Where a testator included among the persons he appointed executors a partnership consisting of four members, and the firm had been dissolved prior to his de

has jurisdiction.50 The general rule is that a public administrator may be granted letters only when those interested in the estate or having a prior right to letters of administration either are incompetent or refuse to act.51 Sometimes the public administrator has prior right to creditors or the public in general,52 or creditors may be preferred to the public administrator." These are matters of statutory regulation.

The purpose of the statutes regarding public administrators is to provide for the administration of estates, principally of intestate decedents who die leaving no relatives or friends, for if the decedent leave a will, those interested thereunder may secure administration. The statutes are not for the benefit of the public administrator to enable him to earn fees, but to supply a need of administration when those interested do not or can not act.54 In some jurisdictions the sheriff or county clerk may be ex officio the public administrator.55 When letters are issued to a public administrator, his powers and duties

cease, it was held that such appointment was of the firm individually and not collectively, and each member of the firm was entitled to be joined in the probate. -Goods of Fernie, 6 Notes of Cas. 657.

50 Jordan v. Chicago & N. W. R. Co., 125 Wis. 581, 110 Am. St. Rep. 865; 4 Ann. Cas. 1113, 1 L. R. A. (N. S.) 885, 104 N. W. 803.

51 Estate of Richardson, 120 Cal. 344, 52 Pac. 832; Estate of Von Buncken, 120 Cal. 343, 52 Pac. 819; Underwood v. Underwood's Admr., 111 Ky. 966, 65 S. W. 130; Succes

sion of White, 45 La. Ann. 632, 12 So. 758; In re Ming, 15 Mont. 79, 38 Pac. 228.

52 Cal. Code Civ. Pro., § 1365; Mass. Gen. Stats. 95, §§ 3, 4; Estate of McKinnon, 64 Cal. 226, 30 Pac. 437.

53 Rosenthal v. Prussing, 108 Ill. 128.

54 Succession of Bossu, 115 La. 13, 38 So. 878.

55 State v. Watts, 23 Ark. 304; Wilson's Admr. v. Dibble, 16 Fla. 782; McNeil v. Smith, 55 Ga. 313; Scarce v. Page, 12 B. Mon. (51 Ky.) 311; Hutcheson v. Priddy, 12 Gratt. (Va.) 85.

are similar to those of any other appointed to such an office.56 The granting of letters to a public administrator and his right to act can not be collaterally attacked.57

56 Bailey v. McAlpin, 122 Ga. 616, 50 S. E. 388; State v. Ennis, 79 Mo. App. 12; Brewer v. Hutton, 45 W. Va. 106, 72 Am. St. Rep. 804, 30 S. E. 81.

57 Weir v. Monahan, 67 Miss.

434, 7 So. 291; Dunn v. GermanAmerican Bank, 109 Mo. 90, 18 S. W. 1139; Jordan v. Chicago & N. W. R. Co., 125 Wis. 581, 110 Am. St. Rep. 865, 4 Ann. Cas. 1113, 1 L. R. A. (N. S.) 885, 104 Pac. 803.