Letters testamentary must be granted to the testator's nominees if qualified. Executor ad CHAPTER XXV. OF THE GRANT OF LETTERS TESTAMENTARY. [* 503] § 229. How the Executor is constituted. Upon probate of the will, letters testamentary may be granted to such of the executors named by the testator as are willing to assume the trust. The court has no discretion in this respect, but must grant the letters to the person or persons nominated, unless such person is disqualified by law. One named as executor is entitled to letters testamentary, although the will contain no other provision of any kind, and an executor has power generally to administer all the perministers all sonal property of the deceased, although the testator personalestate. die intestate as to a portion thereof. There need be no appointment by the testator in direct terms; it is sufficient if a person is designated to discharge those duties which appertain to the office of executor, or that any language is used from which the intention of the testator may be inferred to invest such person with the character of executor. He may also delegate the appointment of an executor to some third person, and letters testamentary will be granted to the person by him named. But the grant of letters testamentary to a person not named or indicated by the testator is erroneous, and has in South Carolina been held void." Any indication by the testator sufficient to appoint executor. 5 1 The grant of general letters of administration, instead of letters cum testamento annexo, has been held void; Fields v. Carlton, 75 Ga. 554, 560. 2 Holladay v. Holladay, 16 Oreg. 147; In re Banquier, 88 Cal. 302, 309, and cases cited; Terry's Appeal, 67 Conn. 181, holding that the appointment of an administrator with the will annexed at the same time with the executor was simply void. 8 In re Hickman, 101 Cal. 609. 4 Matter of Murphy, 144 N. Y. 557; Landers v. Stone, 45 Ind. 404; Venable v. Mitchell, 29 Ga. 556. 5 Carpenter v. Cameron, 7 Watts, 51, 58; Wolffe v. Loeb, 98 Ala. 426; Grant v. Spann, 34 Miss. 294, 302; Nunn v. Owens, 2 Strobh. 101, 104; Bayeaux v. Bayeaux, 8 Pai. 333, 336; Ex parte Mc Donnell, 2 Bradf. 32; Myers v. Daviess, 10 B. Mon. 394; State v. Watson, 2 Speers, 97, 106. 6 Bishop v. Bishop, 56 Conn. 208; Hartnett v. Wandell, 60 N. Y. 346; State v. Rogers, 1 Houst. 569; Jackson v. Paulet, 2 Robert. Eccl. 344. So the testator may empower the survivor or survivors, in case of the death of any of the executors, to appoint other executors to fill any such places as may be made vacant by death, until the will shall have been wholly executed, and such appointees will be clothed with the trust estate in the place of their predecessors: Mulford v. Mulford, 42 N. J. Eq. 68, 76. 7 Blakely v. Frazier, 20 S. C. 144, 155; see also Fields v. Carlton, supra. The test of a constructive appointment as executor, or of an executor according to the tenor of the will, may be found by considering whether the acts to be done or the powers to be exercised by the person are such as pertain to the office of an executor. Thus, the testator's decla- appointment [* 504] ration*"that A. B. shall have his goods after Instances of constructive of executor. 8 his death to pay his debts, and otherwise to dispose at his pleasure," and the like expressions,' may suffice for this purpose. So too the commitment of one's property to "the disposition" of A. B.;2 or the direction that A. B. shall pay debts and funeral and probate charges, or shall receive the property and pay the legacies; or the gift to A. B. of all one's property, to apply the same "after payment of debts" to the payment of legacies. The appointment to a trust under the will, not essential to the office of an executor, does not constitute the trustee an executor according to the tenor, for the offices of an executor and of a trustee are distinct, and may be vested in different persons, and when they are vested in the same person, the functions of each are nevertheless to be performed by him in the respective capacity, the probate court having jurisdiction over him in the one, but not in the other capacity; and an administrator de bonis non cum testamento annexo, appointed after the death of an executor who was also appointed trustee in the will, does not virtute officii succeed to the trust. But where the testator uses the word "trustee," and imposes duties involving the functions of an executor, this will be held a good appointment as executor." 5 As a testator may nominate several executors to execute his will jointly, so he may direct a substitution of several, one after the other, so that, if the first will not act, the next may, and so on." And so he may provide that upon the death of his executor another shall complete the administration, in which case the successor upon his appointment possesses all the powers of, and is, an executor, and not an administrator de bonis non. It is mentioned by Williams, 10 1 Wms. Ex. [239]; Schouler, Ex. § 36. Both these authors cite Henfrey v. Henfrey as authority for this announcement; but the case, as reported in 4 Moore's P. C. Reports, pp. 29, 33, does not seem to raise this question. 2 Pemberton v. Cony, Cro. Eliz. 164. Lee, 401. tor" by the testator: Smith v. Smith, 15 Wash. 239. As to the jurisdiction of the probate court over testamentary trusts and trustees, see further ante, § 151, p. *346; and as to the rights and duties of one who is at the same time trustee and executor, see post, § 340, p. 721. Knight v. Loomis, 30 Me. 204; to similar effect, Simpson v. Cook, 24 Minn. 4 Goods of Bell, L. R. 4 P. D. 85. 180, 187. On this point see post, § 340, p. And see cases supra. 5 Wheatley v. Badger, 7 Pa. St. 459. See Matter of Hawley, 104 N. Y. 250, 263; Creamer v. Holbrook, 99 Ala. 52. And this though the one to whom purely trust powers are given is styled "execu *721. 7 Richards v. Moore, 5 Redf. 278, 282. 8 Edwards' Estate, 12 Phila. 85; Schoul. Ex. § 40, and English authorities. Kinney v. Keplinger, 172 Ill. 449. 10 Wms. Ex. [242]. on the authority of Godolphin1 and Swinburne, that the appointment may be by implication; as, "I will that A. B. be my executor if C. D. will not," in which case the appointment is to C. D. if he accept. Or where the testator erroneously supposes that one whom he wishes to appoint is dead, and says in his will, "Forasmuch as [A. B. or C. D.] is dead, I make E. F. my executor," the person supposed * to be dead shall be executor if living. So [* 505] where a man willed that none should have any dealings with his goods until his son came to the age of eighteen years, except A. B., the latter was thereby appointed executor during the son's minority. But where executors were appointed, with a request that they were to serve until the testator's son became twenty-one years of age, this was held not to be an appointment of the son to the executorship when he should arrive at the designated age.* 6 5 7 8 § 230. Residence as a Qualification to the Office of Executor.— At common law non-residence of the testator's appointee does not disqualify him as executor; even alien enemies have been allowed to maintain actions as executors. The same rule prevails in most American States; but in Arkansas, Indiana, Kansas, KenStates in which tucky, 10 Missouri, Nebraska, 12 Oregon,18 and Pennsylvania,1 non-residents of the State are not permitted to act as executors; and if an executor removes from the State after being appointed, his authority as such will be In other States, also, non-residents are discriminated non-residents are dis qualified. revoked.15 1 Pt. 2, c. 5, § 3. 2 Pt. 4, § 4, pl. 6. 11 8 Per Rhodes, J., in Brightman v. Keighley, Cro. Eliz. 43, stating that it had been so ruled in 17 Eliz. 4 Frisby v. Withers, 61 Tex. 134, 138. 5 Wms. Ex. [229]. 6 So in Alabama (Keith v. Proctor, 114 Ala. 676), Arizona, Connecticut, Colorado (in the court's sound discretion: Corrigan v. Jones, 14 Colo. 311), Delaware, Florida, Idaho, Illinois, Louisiana, Massachusetts, Minnesota, Mississippi, Nevada, New Jersey, North Carolina, North Dakota, Ohio, Rhode Island (Hammond v. Wood, 15 R. I. 566), South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. As to disqualifica tion of administrators by non-residence, see post, § 241, p. * 526, note. Dig. of St. 1894, § 14. Becoming non-resident after appointment and before final settlement forfeits the letters granted; but the vacation of the letters requires the action of court on motion: Haynes v. Lemmes, 39 Ark. 399; McCreary v. Taylor, 38 Ark. 393. 8 Ann. St. 1894, § 2394, construed in Ewing v. Ewing, 38 Ind. 390. 9 Gen. St. 1889, § 2812. 10 St. 1894, § 3846. 11 Rev. St. 1889, § 10. Removal from the State does not of itself revoke the executor's letters testamentary; there must be action by the probate court: State v. Rucker, 59 Mo. 17, 24. 12 Cons. St. 1893, § 1230. 14 Sargent, J., in Sarkie's Appeal, 2 Pa. St. 157. 15 Removal from the State by an executor or administrator is held ground for the revocation of letters, if the estate suffer thereby: Succession of McDonough, 7 La. An. 472, and the onus to prove this is on the party moving the revocation : Scott v. Lawson, 10 La. An. 547. See as to non-residence being a ground for the revocation of letters testamentary and of administration, post, § 270, p. * 576. against in respect of the office of executor. So, in Georgia, a non-resident of the State may be appointed and act as such if he has an interest in the estate and 1 States in which nonresidents are discriminated 5 will give bond; but removal from the State does not against. abate letters testamentary. In California a non-resident may be granted letters testamentary, but must come into the State within a reasonable time, personally submit himself to the jurisdiction of the court, and personally conduct the administration." In Iowa the non-resident executor of a non-resident testator may be appointed to administer. So in Minnesota, though the court may, for good reasons, which, however, do not render the executor legally incompetent, in its discretion decline to grant him letters; and in Maine, Michigan, and Ohio non-resident executors who fail to account and settle in the probate court when required are to [* 506] be removed. In New York, "an alien residing out of the State" is declared incompetent to the office of executor; but this statute is held not to exclude a native of the State who may reside in another State. In Maryland, the executor must be a citizen of the United States; 10 and in North Carolina, it is held that a non-resident may renounce the office in that State, though he accept it in the State of the testator's domicil.11 6 * Infants eligible at common law at the age of seventeen; § 231. Infancy as a Disqualification. At common law and in many of the American States infancy does not operate as a disqualification to the eventual right of executorship; but the authority to qualify or act as such remains in abeyance until the infant reach the age of majority, or such age as may be fixed by law or statute as necessary to qualify. Previous to the statute of 38 Geo. III. c. 87, § 6, this fixed in England at the age of seventeen years,12 and this in several of the States; 18 in others the age of eighteen years 14 is fixed; in many it is twenty-one years,1 1 Code, 1895, § 3293. 2 Walker v. Torrance, 12 Ga. 604. The same of administrators: Brown v. Strickland, 28 Ga. 387. 3 Brown's Estate, 80 Cal. 381. 4 And it is error to supplant a foreign executor of a foreign will probated in Iowa, with an Iowa administrator, unless for good reasons: In re Miller, 92 Iowa, 741. 5 Hardin v. Jamison, 60 Minn. 112. The court may compel a non-resident executor to submit himself to the jurisdiction of any of the State courts when it becomes necessary for the determination of a resident's claim: State v. Probate Court, 66 Minn. 246. 456. 15 age was is the law so in some States; 6 Rev. St. 1883, ch. 64, § 21. 1 How. St. 1882, § 5842. 8 Bates' Ann. St. 1897, § 6017. 9 McGregor v. McGregor, 33 How. Pr. 10 Publ. G. L. 1888, art. 93, § 52. 11 Hooper v. Moore, 5 Jones L. 130. 12 Wms. Ex. [231], note (u), citing Godolph. pt. 2, c. 9, § 2; Swinb., pt. 5, § 1, pl. 6; Piggot's Case, 5 Co. 29 a. 13 In Colorado and Illinois. 14 In Iowa, Maryland, and Mississippi. See Christopher v. Cox, 25 Miss. 162. 15 In Alabama, Arkansas, Florida, Indiana, Kansas, Maine, Massachusetts, Missouri, New York, North Carolina, and South Carolina. in others at eighteen, twenty-one, or at majority until minor is of requisite age. and in most of the others the age of legal majority. Where an infant is appointed sole executor, it is the duty of the probate court to appoint an administrator durante Administration minore ætate, cum testamento annexo, who is to administer the estate until the infant has reached the requisite age; 1 but if other executors be also named who are of full age, they may execute the will until the majority of the infant, who may then qualify and be admitted as executor. As to the rules governing the appointment of an administrator durante minore ætate, see post,3 in connection with the appointment of adminis trators. § 232. Coverture as a Disqualification to the Office of Executrix. According to the canon law, a married woman may sue and be sued alone, without her husband, and it was held in the spiritual courts of England that, in the absence of a writ of prohibition, * she may take upon herself the executorship of a will with- [* 507] out, or even against, the husband's consent or Consent of husband is necessary at common law to enable a wife to be executrix. 4 will. At common law, however, the consent of the husband is necessary to enable the wife to assume the office of executrix; but he cannot compel her to assume the office against her will, although she will be bound, if the husband administers as in the wife's right, though against her consent, in so far that she cannot during his lifetime avoid or decline the executorship." Coverture disqualifies in many States; 8 In many of the American States married women are not competent to act as executrices, and if a feme sole executrix marries, her authority is thereby extinguished; while in others she can do so only with the consent of her husband, as in Alabama, Colorado, Delaware, Louisiana, unless the hus- Maine, 10 Massachusetts," Mississippi, New Jersey, and Wisconsin. In California, Nevada, and Texas, the mar so in others band consent. 1 See ante, § 182, as to administration durante minore ætate. 9 souri, Nebraska, New Hampshire, Rhode Island (whether coverture precludes the 2 Gary, Pr. L. § 240; 3 Redf. on Wills, appointment of a married woman, quære: 68; Wms. on Ex. [479]. 3 § 248. 4 Wentw. Ex. 375-378. Hammond v. Wood, 15 R. I. 566), Vermont, Virginia, and West Virginia. 9 Although the statute requires the 6 Wentw. Ex. 376; Wms. Ex. [232]; consent of the husband in writing, yet 3 Redf. on Wills, 68. 6 Wms. Ex. [234], citing Godolph., pt. 2, c. 10, § 1; Da Rosa v. De Pinna, 2 Cas. Temp. Lee, 390. 7 Wms. Ex. [234], citing Godolphin and Wentworth, supra; Wankford v. Wankford, 1 Salk. 299, 306, in Lord Holt's judgment; Thrustout v. Croppin, 2 W. Bl. 801. 8 For instance, in Arkansas, Indiana, Kentucky, Michigan, Minnesota, Mis this is held directory only to the probate court, and letters testamentary granted to a married woman cannot be impeached collaterally, whether such consent appears affirmatively or not: English v. McNair, 34 Ala. 40, 49, citing earlier Alabama cases. 10 Stewart's Appeal, 56 Mo. 300. 11 Wiggin v. Swett, 6 Met. (Mass.) 194, 196. |