its object the protection of domestic creditors, and when their claims are satisfied the surplus assets must be transmitted to the place of the principal administration for distribution. As a general rule, in the United States, administration of the estate of a deceased resident of the state can be granted only by the court or officer within whose jurisdiction he resided at the time of his death;" but, when a non-resident decedent has left property in several counties within the same state, having probate officers, administration may be taken out in any one; when once taken out, however, the courts of that county have exclusive jurisdiction, and a subsequent appointment in another county will be invalid." Any tangible or intangible property which is subject to administration will authorize the grant of ancillary administration, whether it be within the jurisdiction at the time of the decedent's death, or be brought within it subsequently; as, for example, a promissory note," a right of action for the death of the deceased," and the like. But the bringing of assets into the jurisdiction for a temporary purpose will not authorize the grant of administration." By statute, in most jurisdictions, ancillary administration may be granted, even when the deceased left only real estate, if in that jurisdiction real estate go to the personal representative, or there be domestic creditors who are entitled to subject it to their claims." APPOINTMENT OF EXECUTORS executor 8. Appointment by the Testator. - An derives his authority from the testamentary appointment only, and not from the grant of letters testamentary, which, though necessary to perfect his right to his office, is not the basis of it. The grant of letters is the immediate source of his authority, while the will is its direct source, the grant merely sanctioning the authority conferred by the will. Consequently, 24 10 Pa. Co. Ct. 331 (1891). 25 84 Cal. 107 (1890). 26 130 Mass. 83 (1881). 27 106 Mich. 700 (1895). in the absence of statutory prohibition, an executor may do many things before receiving letters, and even before probating the will; such as receiving or releasing debts, giving away or disposing of the goods and effects of the testator, assenting to legacies, and the like." It was held in a New York case that the "authority of the executors is derived from the will and not from the letters testamentary issued by the surrogate (the officer who, in New York, grants probate and issues letters testamentary, and occupies practically the position of the register of wills in Pennsylvania, of the ordinary or vice-ordinary in New Jersey, and some other states, and of the probate judge in others). The latter are but the authentic evidences of the power conferred by the will, and are founded upon the probate of that instrument. It is true that by the statutes of this state, executors are not permitted to exercise their powers except to a very limited extent, until proof of the will and the granting of letters testamentary. But this does not affect the character of the office or detract from the efficacy of the will as the source of power.' 9931 The appointment of an executor is usually made by express words to that effect; but this is not essential. The appointment may be constructive, as by committing to the charge of some one named, or otherwise designated, those duties which it is the province of an executor to perform, or by conferring those rights which belong to the office, or by any other means by which the intention of the testator to invest him with that character may be inferred." This rule grows out of the fundamental principle, universally recognized, that effect shall be given to a will of a testator when not contrary to the rules of law, as such will and the intent of the author of it can be gathered from the whole instrument." An executor thus appointed is called an executor by implication, or according to the tenor. Thus, where a person was directed to pay the debts, funeral charges, and expenses of proving the will, it was held to constitute that person 3084 N. C. 396 (1881). 3160 N. Y. 346 (1875). 327 Watts (Pa.) 51 (1838). executor;" where a testator indicated that a second person might execute his will if a first person named should refuse, it was held to give the right of execution to the second person;" and where one of two legatees was appointed to act if the other were not living when the testator died, the living legatee was declared to have a right to the appointment, the other being dead." 9. The person to be appointed as executor must be named in the will, or in some paper in existence at the date of the will, and referred to therein. Where the will must be signed at the end, a clause appointing executors, following the testator's signature, is of no effect, even though the will contains a reference to executors "hereinafter named."" The intended executor must also be named or described in the will, so that he can be identified with reasonable certainty; and, if no such person as the one named can be found, nor any one answering to the description given, there is no appointment." The appointment of "one of my sisters," the testator having several living at the date of the will, is not sufficient, though there was but one surviving at his death." But, if there be no person of the name given, but one of a name more or less similar who answers the description, the appointment is sufficient." It is not necessary that the word executor be used; all that is requisite is that the intention to appoint as such be clear; and it is sufficient if this intention appear from the whole will. But it must be definite, and cannot be left to conjecture.“ Within the limits and for the time allowed by law, a testator may commit the administration of his estate and the care of his property to such individuals or succession of individuals, selected by himself or to be designated by others, as he pleases. As he car dispose of the whole estate, he may dispose of the naked custody and the management of it 341 Hagg. (Eng.) 80 (1827). 35 30 L. J. P. M. & A. (Eng.) 167 (1861). 36 35 Leg. Int. (Pa.) 182 (1878). 380 L. T. N. S. (Eng.) 395 (1802), 392 P. D. (Eng.) 72 (1877). 403 L. R. Ir. 21 (1879); 105 L. T. (Eng.) 271 (1898). 418 P. D. (Eng.) 215 (1883). for a limited period; and the disposal, whether for a temporary purpose or otherwise, may be, except as prohibited by statute, absolute or provisional, and conditional, or as others designated by him may from time to time direct." Accordingly, a testator may in his will delegate the authority to name an executor to some third person or persons, and the appointment made by them will be the same as if made in the will. It is not only within his power to appoint personally, but he may project his power of appointment into the future, and exercise it after death through an agent selected by him. And the agent may be pointed out by name, or by his office, or other method of certain identification." He may be executor for So, the testator may make the trust reposed in the executor absolute or qualified in respect to his estate. It may be qualified as to the subject-matter, the place where the trust shall be discharged, and the time when the executor shall begin and continue to act as such. one or several purposes- for a part of the effects in possession of the testator at the time of his death, or for such as may be in action, if it be only for a debt due." And a testator may appoint different executors in different countries in which his effects lie; or different executors as to different parts of his estate in the same country." Finally, a testator may make provision for the substitution of an executor or executors in place of such as may renounce, die, be removed, or become unable or unfit to act, during the continuance of their office, either by naming those who are to succeed, or by vesting the power of appointment in others." 10. Appointment by Operation of Law. -At common law, a man marrying a woman who was an executrix, became an executor in her right, by virtue of the marriage, and rendered himself a trustee with her of the assets of the estate, and was compellable to account as such; but this rule 42 60 N. Y. 346, 349 (1875). 4351 N. E. Rep. 913 (1898). 4456 Conn. 208, 210 (1888). 45 13 How. (U. S.) 458, 466 (1851). 465 Gill & J. (Md.) 483 (1833). 4741 N. J. Eq. 267 (1886); 10 Phila. 85 (1878). 48 27 N. J. Eq. 311, 313 (1876). has been almost, if not quite, universally changed by statute. Also, at common law, if a sole or surviving executor died having an executor, the latter became, thereupon, the executor of the first testator, and so on indefinitely, until the line of succession was broken." This rule is still in force in the United States," except where it has been provided otherwise by statute, as is the case in a majority of the states. But it does not apply when the chain of succession is broken at any point by intestacy," renunciation by a sole executor, the death of a sole executor before probate of the will," provision for the substitutionary appointment of an executor," or a failure to probate the will by which the prior executor was appointed. Moreover, it applies solely to the executor of an executor, and not to the administrator of an executor," or the executor of an administrator." 11. Appointment by the Court. - The power of the court or officer charged with the duty of issuing letters testamentary extends only to the investigation of the question whether or not the person named as executor be legally qualified to act as such." Nothing beyond the legal requirements can be insisted on as a qualification, and letters testamentary must be issued to the person named in the will, unless he be disqualified by law. It is not within the discretion of the court or officer to examine into his peculiar fitness, or his want of ability to manage the estate because of his failure in his own financial affairs." It is quite clear upon principle and authority that where a testator appoints an executor out of the class recognized, either by the common law or by statute, as capable of accepting and performing the duties of such a trust, the court invested with authority to admit the will to probate cannot reject the person so appointed, or refuse to approve of the appointment, except in cases where the law has specially so 49 Eng. Prob. Div. 129 (1896). 5031 Conn. 240 (1862); 14 N. J. Eq. 135 (1861); 20 Fla. 58 (1883). 51 L. R. 1 P. & D. (Eng.) 723 (1869). 521 Vern. (Eng.) 200 (1683). 533 Dev. L. (N. C.) 434 (1832). 544 P. D. (Eng.) 77 (1878). 55 32 Ala. 676 (1858). 566 S. W. Rep. 592 (1888). 57 16 Ore. 147 (1888). |