the first decedent as had the residuary legatee.18 This rule, however, did not prevail where such residuary legatee was a trustee only, the practice being to grant letters of administration with the will annexed, not to the representative of the deceased trustee, but to the one having the beneficial interest under the trust.19. In some jurisdictions this rule is covered by statute and in granting letters of administration with the will annexed, the court must give preference to the residuary legatee, if he be qualified to act,20 and upon the death of the residuary legatee his right to administer passes to his personal representative.21 In New York, however, under the statute, it held that letters can not be granted to the personal representative of the residuary legatee who survives the testator and dies before the will is admitted to probate, but the next of kin are preferred in such a case.22 18 Wetdrill v. Wright, 2 Phillim. 243; Jones v. Beytogh, 3 Phillim. 635; Isted v. Stanley, 3 Dyer 372a; Sidebottom v. Sidebottom, L. R. 2 P. & D. 365; Woodruff v. Snoover (N. J.), 45 Atl. 980; Cutchin v. Wilkinson, 1 Call (Va.) 231; 1 Williams Exrs. *383. 19 Hutchinson v. Lambert, 3 Addams 27. 20 N. Y. Code Civ. Pro., § 2640; In re Clute's Estate, 37 Misc. Rep. 710, 76 N. Y. Supp. 456; Pa. Act of March 15, 1832, P. L. 140, § 22, Purdon's Dig. 578, pl. 42; Estate of Padelford, 189 Pa. St. 634, 42 Atl. 287; Will of Kirkpatrick, 22 N. J. Eq. 463; Suttle v. Turner, 53 N. C. 403; Hendren v. Colgin, 4 Munf. (Va.) 231. "The residuary legatee is the testator's choice; he is the next person in his election to the executor. The practice goes along with that preference."-Atkinson v. Barnard, 2 Phillim. 316, quoted in Will of Kirkpatrick, 22 N. J. Eq. 463. 21 In re Booraem's Estate, 55 N. J. Eq. 759, 37 Atl. 727; Woodruff v. Snoover (N. J.), 45 Atl. 980. 22 In re Brown's Estate, 11 N. Y. Supp. 785. § 1231. Right of Executor of Deceased Executor to Represent First Testator. The common law rule is that in the event of the death of the sole executor leaving a will appointing an executor who is competent to and does qualify and act as such, the executor of the deceased executor is to all intents and purposes the representative of the first testator. The reason of the rule is that the power of an executor is founded upon special confidence and actual appointment by the deceased, and therefore the first executor is allowed to transmit that power to another in whom he has equal confidence. The rule therefore applies only to the executor of a sole executor, not to the administrator of an executor or the executor of an administrator.23 Where several co-executors are appointed, the executor of one of them who dies leaving one or more of his co-executors living, does not become associated with the surviving executors of the first testator, but the right remains solely in the survivors.24 Likewise, where several co-executors are named in the will of the testator and all renounce except one who qualifies, upon the death of the one so qualifying his executor does not become the representative of the first testator if any of the executors named in the will of the first testator still survive.25 And if the one appointed in the testator's will as executor dies before proving the will, the executorship is not transmitted to his executor, and an administrator with the will annexed must be appointed.26 The rule of the common 23 Bl. Com. *506; Bacon's Abr., tit. Exrs. and Admrs. B, 2; Wankford v. Wankford, 1 Salk. 299, 308; Ikelheimer v. Chapman's Admrs., 32 Ala, 676. 24 Goods of Smith, 3 Curt. 31. 25 Arnold v. Blencowe, 1 Cox Eq. 426. 26 Isted v. Stanley, 3 Dyer 372a; Hayton v. Wolfe, Cro. Jac. 614; law is still the general rule in England.27 In the United States the rule has been changed by statute in some jurisdictions,28 otherwise it is generally recognized.20 81232. Right of Nominees to Letters of Administration With Will Annexed. Under the statute of 20 and 21 Vict., ch. 77, sec. 73, where a decedent failed to appoint an executor in his will, or the appointee was unable or refused to act or resided out of the United Kingdom of Great Britain and Ireland, the court, under special circumstances, was not obliged to grant administration according to the rights of priority which would have prevailed had not the above act been passed. It became the practice under this statute to appoint the nominee of the person named as executor.30 Where a testator fails to name an executor in his will or the one named is incompetent or refuses to act, the rule in the United States is not uniform as to the right to nominate the administrator with the will annexed. Much depends on the particular wording of the statute.31 Where the provision of the law is that letters of administration with the will annexed must be granted as in the Wankford v. Wankford, 1 Salk. 299, 308. 27 Goods of Grant, L. R. 1 Pro. Div. 435; Goods of Reid (1896), P. D. 129. 28 Ikelheimer v. Chapman's Admrs., 32 Ala. 676; Chevassus v. Burr, 134 Cal. 434; Appeal of Chamberlain, 70 Conn. 363, 39 Atl. 734; Kinney v. Keplinger, 172 Ill. 449, 50 N. E. 131; Foster v. Bailey, 157 Mass. 160, 31 N. E. 771; Robins v. Burridge, 128 Mich. 25, 87 N. W. 93; Matter of Moehring, 154 N. Y. 423, 48 N. E. 818; Grimes v. Pennsylvania R. Co., 189 Pa. St. 619, 69 Am. St. Rep. 830, 42 Atl. 303; Reed v. Wilson, 73 Wis. 497, 41 N. W. 716. 29 Hart's Exr. v. Smith, 20 Fla. 58; Jepson v. Martin, 116 Ga. 772, 43 S. E. 75; Annin's Exrs. v. Vandoren's Admr., 14 N. J. Eq. 135. 30 See § 1198. 81 See 1228. 33 case of intestacy, reference must be had to the statute regarding intestacy as to the right of nomination. Such right of nomination is sometimes limited to the surviving husband and wife of the decedent, as in California,32 but if the surviving husband or wife is not interested under the will, the section does not apply. Generally the right to nominate the administrator of the estate of a decedent, where allowed, is limited to those who are entitled to succeed to the estate, and the right may be exercised by one not first in order of preference only after those having a prior right have failed or refused to act.34 §1233. The Same Subject. The statutory provision that administration may be granted to one or more competent persons, although not otherwise entitled to the same, with the consent of the person entitled thereto, has been held to apply to cases of administration with the will annexed.35 Thus it has been held that one having the prior right to administration with the will annexed may transfer that right by appointment;36 and inasmuch as the power of appoint 32 Cal. Code Civ. Pro., § 1365. The nominee of an executor who is incompetent or who fails to apply for letters testamentary, is not entitled to letters of administration with the will annexed, as against those interested in the will, or the next of kin.-Estate of Meier, 165 Cal. 456, Ann. Cas. 1914D, 121, 48 L. R. A. (N. S.) 858, 132 Pac. 764. 33 See § 1228. 34 See § 1197. 35 Estate of Morgan, 8 Civ. Pro. Rep. (N. Y.) 77. 36 Little v. Berry, 94 N. C. 433; In re Meyers, 113 N. C. 545, 18 S. E. 689. The nominee of the surviving wife is entitled to letters of admin. istration with the will annexed in the event of her husband's death, he leaving a will wherein he appointed an executor, but such appointee being incapable of acting. Smith v. Ferry (Estate of Hill), 6 Wash. 285, 33 Pac. 585. ment exists, one possessing it may cause another to be associated with him in the administration.37 The right of a beneficiary under the will or of one who succeeds to the estate of an intestate decedent, being nowise in privity with the testator, is not authorized to nominate an administrator with the will annexed except when such right is granted by statute,38 and such right is usually limited to those who are not disqualified from acting,39 except perhaps on the ground of non-residence. 40 In some jurisdictions the nominee of the one entitled to letters of administration with the will annexed can not take to the exclusion of the person next entitled.41 While administration with the will annexed may belong as a matter of right under the statutes to the parties interested under the will or the next of kin of the testator in a certain prescribed order, yet as a matter of comity, in New York, letters may be granted to the attorney of a foreign executor. Where he does not make application, administration must go according to the statute.12 And where the right to nominate the administrator 37 In re Meyers, 113 N. C. 545, 18 S. E. 689. 38 Estate of Von Buncken, 120 Cal. 343, 52 Pac. 819; Estate of Richardson, 120 Cal. 344, 52 Pac. 832. 39 Bieber's Appeal, 11 Pa. St. 157. 40 Estate of Cotter, 54 Cal 215; Matter of Stevenson, 72 Cal. 164; Matter of Bedell, 97 Cal. 339; Strong v. Dignan, 207 Ill. 385, 99 Am. St. Rep. 225, 69 N. E. 909; Estate of Owens, 30 Utah 351, 85 Contra: Sutton v. Public Administrator, 4 Dem. (N. Y.) 33. 41 Curtis v. Williams, 33 Ala. 570; Georgetown College V. Browne, 34 Md. 450; Matter of Cresse, 28 N. J. Eq. 236; Coover's Appeal, 52 Pa. St. 427. 42 St. Jurjo v. Dunscomb, 2 Brad. Surr. (N. Y.) 105. See, ante, § 1198, n. 35, 36, as to appointment under a power of attorney, and, also, Succession of Rice, 21 La. Ann. 614. |