excom A person excommunicated may be appointed executor; "yet so long as he standeth in the sentence of excommunication, Persons he is not to be admitted by the ordinary, nor can com- municated. mence any suit for his legacy." (a) But now, by statute 53 Geo. 3, c. 127, excommunication is not to be pronounced except in certain cases; and by section 3, in those cases, parties excommunicated shall incur no civil incapacity whatever. is By statute 3 Jac. 1, c. 5, s. 22, a Popish recusant convicted at the time of the testator's death, is made altogether in- Roman competent; (b) and so, by statute 3 Car. 1, c. 2, s. 1, Catholics. any person sending or contributing to send another abroad, to be ecucated in the Popish religion. But now by statute 31 * Geo. 3, c. 32, Roman Catholics are exempt from these disabilities, upon Cooper v. Cooper, 2 Halst. Ch. 9; In re Wadsworth, 2 Barb. Ch. 381. But the mere poverty of an executor, which existed at the testator's death, will not authorize the court to require that he furnish security, or give up the office. Fairbarn v. Fisher, 4 Jones (N. Car.) Eq. 390; Wilson v. Whitefield, 38 Geo. 269; Wilkins v. Harris, 1 Wins. (N. Car.) 41; Bowman v. Wootton, 8 B. Mon. 67; Shields v. Shields, 60 Barb. 56. In most the American States, executors are required to give bonds for the faithful performance of their trusts, before entering upon the duties thereof. See Genl. Sts. Mass. c. 93, § 2; Cowling v. Nansemond Justices, 6 Rand. 349; Webb v. Dietrich, 7 Watts & S. 401; Cohen's Appeal, 2 Watts, 175; post, 529 et seq. and notes; Bankhead v. Hubbard, 14 Ark. 298; Holbrook v. Bentley, 32 Conn. 502. In other states, bonds are required only when it appears to be necessary for the security of the estate; see Mandeville v. Mandeville, 8 Paige, 475; Wood v. Wood, 4 Paige, 299; Colegrove v. Horton, 11 Paige, 261; Holmes v. Cock, 2 Barb. 426; McKennan's Appeal, 27 Penn. St. 237; Powel v. Thompson, 4 Desaus. 162; as in New York, where the surrogate finds that the circumstances of the executor are "precarious," or that he has removed or is about to remove from the state. Redfield L. & P. of Surrogates' Courts, 145. As to the force of the word "precarious " in this connection, see Shields v. Shields, 60 Barb. 56; Cotterell v. Brock, 1 Bradf. Sur. 148; and Mandeville v. Mandeville, Wood v. Wood, and Holmes v. Cock, supra. The "due administration of the estate" for which the executor gives security, consists in paying its obligations, and distributing the balance among the persons entitled. Cunningham v. Souza, 1 Redf. Sur. 462. If an executor gives bonds that are insufficient, the probate court will upon proper application, generally, require additional security of him. See Killcrease v. Killcrease, 7 How. (Miss.) 311; Ellis v. McBride, 27 Miss. 155. This additional security can be required only by the court originally granting administration. See Atkinson v. Christian, 3 Grattan, 448. The liability of the sureties on an executor's bond is limited to the assets which rightfully come, or by right ought to have come, to the executor's hands, in the state where he was appointed. Fletcher v. Weir, 7 Dana, 345 ; The Governor v. Williams, 3 Ired. (Law) 152; Normand v. Grognard, 17 N. J. Eq. 425.] (a) Swinb. pt. 5, s. 6; Wentw. Off. Ex. 38, 14th ed. (b) Richardson v. Seise, 12 Mod. 306; Hill v. Mills, Show. 293; Ride v. Ride, 6 Mod. 239. subscribing the declaration and oath of allegiance, &c. as appointed by that act. (c) Persons denying the Trinity, &c. By statute 9 & 10 W. 3, c. 32, persons denying the Trinity, or asserting that there are more Gods than one, or denying the Christian religion to be true, or the Holy Scriptures, shall be for the second offence disabled to be executors. But this statute is repealed, as far as denying the Trinity, by statute 53 Geo. 3, c. 160, s. 1. Also by the statutes prescribing the qualifications for offices (d) Persons not persons not having taken the oaths, and complied with qualifying for office. the other requisities for qualifying, who shall execute their respective offices after the time limited for the performance of those acts, shall incur the same incapacity. (e) Non compotes. By our law, as well as by the civil law, idiots and lunatics are incapable of being executors or administrators; for these disabilities render them not only incapable of executing the trust reposed in them, but also by their insanity and want of understanding they are incapable of determining whether they will take upon them the execution of the trust or not. (ƒ) Therefore it has been agreed, that if an executor become non (c) See note to Co. Lit. 391 a. (d) 25 Car. 2, c. 2; 1 Geo. 1, st. 2, c. 13; 13 W. 3, c. 6, s. 6. But see 9 Geo. 4, c. 17. (e) Toller, 33, 34; 4 Burn E. L. 123. But it is usual to pass in every session an act to idemnify those who have omitted to qualify, &c. (ƒ) Godolph. pt. 2, c. 6, s. 2; Bac. Abr. Exors. A. 5; 2 Robert. 133, 134; [Hubbard J. in Thayer v. Homer, 11 Met. 104, 110. The necessary qualifications of an executor in New York are that he shall be of the age of twenty-one years and capable of making a contract; that he shall not be an alien non-resident of the state, nor one convicted of an infamous crime, nor one whom the surrogate, on proof, shall adjudge incompetent to execute the duties of the trust by reason of drunkenness, dishonesty, improvidence, or want of understanding, and the surrogate may, in his discretion, refuse to grant letters testamentary or letters of and write the English language. 2 R. S. (N. Y.) 69, § 3, as amended, Laws, 1830, c. 230, § 17; Laws, 1867, c. 782, § 5; Laws, 1873, c. 79. See ante, 235, note (q). What will justify the rejection of one as an executor or administrator, see Coope v. Lowerre, 1 Barb. Ch. 45; Shilton's Estate, 1 Tuck. Sur. 73; Elmer v. Kechele, 5 N. Y. Sur. 472; McMahon v. Harrison, 6 N. Y. 443; 10 Barb. 659; Smith v. Young, 5 Gill, 197; McGregor v. McGregor, 33 How. Pr. 456; S. C. 3 Abb. App. Dec. 92; Perry v. De Wolf, 2 R. I. 103. As to the significance of "improvidence" in the above statute, see McMahon v. Harrison, 6 N. Y. 443; Coope v. Lowerre, 1 Barb. Ch. 45; Emerson v. Bowers, 14 N. Y. 449. Of "want of understanding," see Shilton's Estate, 1 Tuck. Sur. 73; McGregor v. McGregor, 1 Keyes, 133; 33 How. Pr. 456; 3 Abb. App. Dec. 96. The immoral character of the executor is not of itself sufficient ground for refusing to qualify him. Berry v. Hamilton, 12 B. compos, the spiritual court may, on account of this natural disability, commit administration to another. (g) (g) Hill v. Mills, 1 Salk. 36; Evans v. Tyler, 2 Robert. 128, 134; S. C. 7 Notes of Cas. 296. See post, pt. 1. bk. v. c. III. § vi. [In Massachusetts the probate court may remove an executor or administrator who becomes insane or otherwise incapa ble of discharging the trust, or evidently unsuitable therefor. Genl. Sts. Mass. c. 101, s. 2; Hubbard J. in Thayer v. Homer, 11 Met. 110; Hussey v. Coffin, 1 Allen, 354; Winship v. Bass, 12 Mass. 199; Drake v. Green, 10 Allen, 124.] CHAPTER THE SECOND. OF THE APPOINTMENT OF EXECUTORS. - BY WHAT WORDS EXECUTORS MAY BE APPOINTED. AN executor can derive his office from a testamentary appointment only. (a) Executor according to the tenor: His appointment may either be express or constructive; in which case he is usually called executor according to the tenor; for, although no executor be expressly nominated in the will by the word executor, yet, if by any word or circumlocution the testator recommend, or commit to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors. (b) As if he declare by his will that A. B. shall have his goods by words after his death to "pay his debts, and otherwise to dispointing at the office or pose at his pleasure, or to that effect, by this A. B. is made executor. (c) So if the testator say, "I commit rights of an executor: (a) [Allen J. in Hartnett v. Wandell, 60 N. Y. 350.] A will (says the author of the Office of Executor, p. 3, 14th ed.) is the only bed where an executor can be begotten or conceived. According to the old doctrine, an executor could not be primarily appointed in a codicil. See ante, 8, note (p); [Whetmore v. Parker, 7 Lansing, 121, 129.] (b) Swinb. pt. 5, s. 4, pl. 3; God, n. pt. 2, c. 5, s. 2; Wentw. Off. Ex. 20, 14th ed.; In the Goods of Manley, 3 Sw. & Tr. 56; In the Goods of Fraser, L. R. 2 P. & D. 183; [Grant v. Spann, 34 Miss. 294; Nunn v. Owens, 2 Strobh. (S. Car.) 101; Carpenter v. Cameron, 7 Watts, 51; Myers v. Daviess, 10 B. Mon. 394; State v. Rogers, 1 Houst. (Del.) 569; State v. Watson, 2 Spears (S. Car.), 97; Carter v. Carter, 10 B. Mon. 327; Wood v. Nelson, 9 B. Mon. 600; Ex parte M'Donnell, 2 Bradf. Sur. 32; Watson v. Mayrant, 1 Rich. Eq. 449; Allen J. in Hartnett v. Wandell, 60 N. Y. 350. The testator may by his will delegate the power of naming an executor to another; as, where the testator, by his will, appointed his wife executrix, and requested "that such male friend as she may desire shall be appointed with her as executor," it was held (Grover and Folger JJ. dissenting), that an appointment of an executor in pursuance of this request was valid; and that letters testamentary were properly issued to him as such. Hartnett v. Wandell, 60 N. Y. 346; State v. Rogers, 1 Houst. (Del.) 569. But see Bronson's Will, 1 Tuck. Sur. 464.] (c) Ib.; Henfrey v. Henfrey, 4 Moore all my goods to the administration of A. B.," (d) or to "the disposition of A. B.;" (e) in this case he is made executor. *And where certain persons were directed by the will to pay debts, funeral charges, and the expenses of proving the will, they were held to be clearly executors according to the tenor. (ƒ). So where the testator in a codicil said, "I appoint my nephew my residuary legatee, to discharge all lawful demands against my will," the nephew was admitted executor. (g) So if the testator say, "I make A. B. lord of all my goods," (h) or "I make my wife lady of all my goods," (i) or "I leave all my goods to A. B.,” (k) or "I leave A. B. legatary of all my goods," (1) or "I leave the residue of all my goods to A. B.," (m) it will amount to the appointment of such persons respectively as executors according to the tenor. (n) But it appears that the practice of the prerogative court has been to grant administration with the will annexed to the universal legatee of a testamentary paper, but not to decree probate to him as executor according to the tenor. And Sir C. Cresswell, on a late occasion, adhered to this practice. (0) Where the testator gave divers legacies, and then appointed that, his debts and legacies being paid, his wife should have the residue of his goods, so that she put in security for the performance of his will, this was held by three common law judges to make her executrix. (p) Again, where the will* said nothing of the P. C. C. 33. So where one said on his (e) Pemberton v. Cony, Cro. Eliz. 164; Godolph. pt. 2, c. 5, s. 3. So, if he says, "I will that A. B. shall dispose of my goods which are in his custody," he is thereby made executor of those parcels or goods. Ib. (f) In the Goods of Fry, 1 Hagg. 80; In the Goods of Montgomery, 5 Notes of Cas. 92, 101. See, also, In the Goods of Almosnino, 2 Sw. & Tr. 508; In the Goods of Collett, Dea. & Sw. 274. (g) Grant v. Leslie, 3 Phillim. 116. (h) Godolph. pt. 2, c. 5, s. 3; Swinb. pt. 4, s. 4, pl. 3. (i) Swinb. pt. 4, s. 4, pl. 3. (k) Godolph. pt. 2, c. 5, s. 3; Swinb. pt. 4, c. 4, pl. 3. (2) Ib. (m) Ib. "I devise all my personal goods to my two daughters and my wife, whom I make executrix;" this was holden to appoint them all three executrices. Foxwith v. Tremaine, Ventr. 102. (n) [In the Goods of Adamson, L. R. 3 P. & D. 253.] In Androvin v. Poilblanc, 3 Atk. 301, Lord Hardwicke said a person named "universal heir," in a will, would have a right to go to the ecclesiastical court for the probate. But it has lately been held otherwise as to a person named universal legatee. In the Goods of Oliphant, 1 Sw. & Tr. 525. (0) In the Goods of Oliphant, 1 Sw. & Tr. 525. (p) Wentw. Off. Ex. p. 20, 14th ed. But if the testator bequeath the residue of |