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California provides that "if no executor is named in the will, or if the sole executor or all the executors therein named are dead, or incompetent, or renounce, or fail to apply for letters or to appear and qualify, letters with the will annexed must be issued as designated and provided for in granting of letters in case of intestacy.

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Where the legislative direction is that letters of administration with the will annexed shall issue to those entitled as in case of intestacy, there are generally two statutes to be considered; first, the statute containing the direction and, second, the statute prescribing the order of preference in case of intestacy. The statute containing the direction may, as did the statute of California prior to 1907, contain a direction providing only that "if the sole executor or all the executors are incompetent, or renounce, or fail to apply for letters, or to appear and qualify, letters of administration, with the will annexed, must issue as is designated and provided for in the grant of letters in cases of intestacy." The present section, being an amendment of the above and inserted as a new section, is quoted in the preceding paragraph. It will be noted that the amendment adds the proviso, not contained in the original section, viz., "if no executor is named in the will." The statute prior to the amendment did not apply to a case wherein the testator left a will but failed to nominate an executor, its provisions covering only those cases where an executor had been named. It is therefore important that the wording of any statute in question be particularly noted.

5 Cal. Code Civ. Pro., § 1350a, amendment of 1907; In re Garber, 74 Cal. 338, 16 Pac. 233. See, also, Jordan v. Ball, 44 Miss. 194.

6 Last clause of Cal. Code Civ. Pro., 1350, prior to amendment

of 1907.

7 Estate of Barton, 52 Cal. 538;

8

The statute naming the order in which persons may be entitled to letters of administration in case of intestacy, or some other enactment which must be read with it, may provide that preference is extended only to those, who are entitled to succeed to the personal estate of the decedent. Such a statute must be read in conjunction with the enactment which provides for letters of administration with the will annexed as in case of intestacy. If the statute stating the order of preference in case of intestacy provides that only those entitled to succeed to the decedent's personal estate are entitled to letters of administration, the next of kin of a decedent testator who take nothing under his will have no right of preference as against those interested under the will, although strangers, the next of kin being cut off by the provision that they must succeed to the personal property of the decedent. Where the conditions are within the wording of the statutes, the law will enforce its choice in the appointment of an administrator with the will annexed.10

Estate of Von Buncken, 120 Cal. 343, 52 Pac. 819.

8 Cal. Code Civ. Pro., § 1365; In re Owen's Estate, 32 Utah 469, 91 Pac. 283.

9 Estate of Crites, 155 Cal. 392, 101 Pac. 316; Estate of Winbigler, 166 Cal. 434, 137 Pac. 1.

The Code of Civil Procedure of California, §§ 1322, 1323, allows a foreign will to be presented by the executor or any one interested in the estate, the last including any devisee or legatee, or his assignee, and such have a prior right to administration with the will annexed to that of any per

son “not interested in the will.”— Estate of Meier, 165 Cal. 456, Ann. Cas. 1914D, 121, 48 L. R. A. (N. S.) 858, 132 Pac, 764.

10 Estate of Brundage, 141 Cal. 538, 75 Pac. 175; Estate of Munroe, 161 Cal. 10, Ann. Cas. 1913B, 1161, 118 Pac. 242; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828.

In some jurisdictions it is provided by statute, where one named as executor has failed or refused to qualify, administration of the estate with the will annexed may be granted to such person as would have been entitled to the same if the testator had died in

Under many statutes preference in the appointment of administrator is given to males over females, but in New York this restriction does not apply to letters of administration with the will annexed.11

§ 1229. Right of Residuary Legatee to Letters of Administration With Will Annexed.

The statute of 21 Henry VIII, ch. 5, provided for the right of priority to letters of administration of the estate of intestates only, and where the decedent left a will, the ecclesiastical court considered those who had the greatest interest in the effects of the deceased as most entitled to administration with the will annexed. Where one dies intestate, the one entitled to succeed to the largest portion of the decedent's estate should naturally have a prior right to letters of administration, but where the testator by his will prefers another to his next of kin by disposing of the residue of his property to such other, the interest of the residuary legatee is such as to demand that he have the better right to letters of administration with the will annexed.12 This is the general rule except as modified by statute.13

testate.-Finch v. Houghton, 19 Wis. 149.

In some jurisdictions in the granting of letters of administration with the will annexed, the surviving husband or wife is first entitled to be appointed.-Long v. Huggins, 72 Ga. 776; Code of N. C., § 2166.

11 In re Wood's Estate, 17 N. Y. Supp. 354. See, also, Cal. Code Civ. Pro., § 1366.

12 Williams Exrs. (3d Am. ed.) **380, 381.

Where one is entitled to a grant of a leasehold of which the testator was trustee for him, a grant of letters of administration with the will annexed, limited to the particular leasehold, will be issued to the applicant or his nominee.Goods of Butler (1898), P. D. 9.

13 Goods of Scarborough, 6 Jur. N. S. 1166; Goods of Shepheard,

The rule prevailing in some jurisdictions is that whenever a person has left a will and omitted to appoint an executor, or the person appointed has refused to or can not qualify, the court may in its discretion appoint any proper person administrator with the will annexed. In the exercise of this discretion the court will usually appoint the residuary legatee or some other person interested in the estate, the object being to secure a faithful administration of the office; 14 and where it is discretionary with the court to grant administration to either of two claimants, that is in cases where the selection is uncontrolled by the statute, preference will be given, other things being equal, to the claimant who has the greatest interest in the effects to be administered, generally the residuary legatee.15

41 L. T. N. S. 530; Goods of Whiston, 2 Sev. & Tr. 318; Goods of Pryse (1904), P. D. 301; Matter of Kirkpatrick, 22 N. J. Eq. 463; Woodruff v. Snoover (N. J.), 45 Atl. 980; In re Clute's Estate, 37 Misc. Rep. 710, 76 N. Y. Supp. 456; Estate of Padelford, 189 Pa. St. 634, 42 Atl. 287; Suttle v. Turner, 53 N. C. 403.

14 Suttle v. Turner, 53 N. C. 403. Where the testatrix had been deserted by her husband fifteen years prior to her death and had never heard from him after the desertion, letters may be granted to a son who by the will was named trustee and manager of practically the whole estate, without attempting to cite the husband. In re Shoosmith (1894), P. D. 23.

After the determination of the question as to whether or not an administrator with the will annexed should be appointed, the next of kin and the devisees should have an opportunity to elect whether they will take out administration or yield it to the creditors. Stebbins v. Lathrop, 4 Pick. (21 Mass.) 33.

The beneficiary heirs are first entitled to be appointed in some jurisdictions.-Girod's Heirs and Legatees v. Girod's Exrs., 18 La. 394.

15 Tucker v. Westgarth, 2 Addams 352; Goods of Pile, 2 Sw. & Tr. 628; Goods of Homan, 9 Pro. Div. 61; Long v. Huggins, 72 Ga. 776; Woodruff v. Snoover (N. J.), 45 Atl. 980; Estate of Morgan, 8 Civ. Pro. Rep. (N. Y.) 77; Matter

Although it may be provided by statute that the residuary legatee, if qualified to act, has the prior right to letters of administration with the will annexed, yet where none of the beneficiaries are strictly residuary legatees and therefore entitled to preference under the statute, but are general legatees, they must be classed together and are equally entitled to be appointed. In his discretion the Surrogate may lawfully issue letters to any one entitled thereto without citing the others having only equal claims.16 Where the testator devises his whole estate and there are no distributees within the meaning of the statute, the probate court, in granting administration with the will annexed, may in its discretion appoint others not designated by the statute.17

§ 1230. The Same Subject: Right of Executor of Deceased Residuary Legatee.

The early rule was, and the one still largely prevailing except where abrogated by statute is, that where a residuary legatee survived the testator but thereafter died leaving a will wherein he appointed his executor, the personal representative of such decedent had the same right to administration with the will annexed of the estate of

of Clute, 37 Misc. Rep. (N. Y.) 710, 76 N. Y. Supp. 456; Matter of Goggin, 43 Misc. Rep. (N. Y.) 233, 88 N. Y. Supp. 557; Thornton v. Winston, 4 Leigh (Va.) 152.

Where letters were directed to be issued to three persons jointly, one of whom was a residuary legatee and the others had no interest in the estate, upon the death of the residuary legatee before the issuance of letters, the persons to

whom the decree directed that the letters issue jointly are not entitled to have letters issued to them. In re Faile's Estate, 89 Misc. Rep. 682, 152 N. Y. Supp. 463.

16 In re Wood's Estate, 17 N. Y. Supp. 354; In re Treadwell's Estate, 37 Misc. Rep. 584, 75 N. Y. Supp. 1058; N. Y. Code Civ. Pro., § 2640.

17 Jordan v. Ball, 44 Miss. 194.

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