13. The American courts seem to have adopted the same liberal construction as to the mode of appointing an executor with the English courts.27 And if the testator name persons as trustees, but conferring the rights and duties of executors, it will be regarded as an appointment to that office.28 But the office of executor and trustee under will are distinct, and are not to be performed in the same capacity.29 The testator cannot appoint a testamentary trustee to act under the will and perform the trusts thereby created, without taking letters testamentary or of administration; and, having taken such letters, he cannot discharge himself as administrator by paying over to himself as trustee.80 14. We have already suggested that different executors may have separate and distinct functions.31 Thus, one set of executors may be named, and others to succeed them in the event of their being incapacitated or unwilling, for any reason, longer to continue the service. But one cannot be appointed executor with a provision that he shall not administer the goods, the latter clause being repugnant to the former, and therefore rendering the appointment inoperative in toto. But two per 33 appointment could only be made by a will duly executed, Sir H. J. Fust said it was not like the case where the testator in his will reserves to himself a power to deal with his will by writing not duly executed. "Carpenter v. Cameron, 7 Watts, 51; Wood v. Nelson, 9 B. Mon. 600. 28 Myers v. Daviess, 10 B. Mon. 394; McDonnell, ex parte, 2 Bradf. Sur. Rep. 32. "Wheatly v. Badger, 7 Penn. St. 459. 30 Hunter v. Bryson, 5 Gill & J. 483. The general subject of the duties and responsibilities of testamentary trustees, and how far they are under the control of the Court of Chancery, is extensively discussed in The Matter of Van Wyck, 1 Barb. Ch. Rep. 565. All matters of trust, except so far as controlled by statute, are under the direction of the courts of equity; and the usual course of proceeding in discharge or appointment of trustees is by bill. Id. See Knight v. Loomis, 17 Shepley, 204; Gibbons v. Riley, 7 Gill, 81. sons may be appointed executors, with a provision that one shall not act during the life of the other; 34 or, one may be appointed executor for a definite period, or during the minority of testator's son, or the widowhood of his wife, or until the death or marriage of his son. If there is an interval between the termination of one executorship and the beginning of another, administration with the will annexed must be given by the probate court.36 39 15. The testator may also commit the execution of his will in different countries to different executors; 37 or the duties may be divided among different executors with reference to the subject-matter, it has been said. But Lord Hardwicke expresses an opinion that such an appointment would be absurd, because executors must act jointly, and each have authority as to the whole estate," which cannot be divided into distinct and separate powers." And we think the American practice confirms the views of his lordship thus expressed. The English courts hold the same views as to the rights of creditors.40 16. The appointment of executors may, like every other portion of the will, be made dependent upon a condition, either precedent or subsequent; as upon giving security for faithful administration; 41 or so long as a certain person was allowed to occupy Blackacre; 42 or provided he prove the will within three calendar months after the decease of the testator; 43 * Wentworth off. ex. 13. Carte v. Carte, 3 Atk. 180; Pemberton v. Cony, Cro. Eliz. 164; Swinb. pt. 4, § 17, pl. 1. Swinb. pt. 4, § 17, pl. 2. Spratt v. Harris, 4 Hagg. 405, 408, 409. * Dyer, 4, a. "Owen v. Owen, 1 Atk. 494. Rose v. Bartlett, Cro. Car. 293. 41 Wms. Exrs. 220. Alice Frances' Case, Dyer, 4 pl. 8. Wilmot in re, 1 Curt. 1. It was here held, that in computing the time, the day of the death was to be excluded. and upon failure to perform such condition his appointment fails.44 17. The executor of an executor is by the English law executor of the first testator to an indefinite extent, unless there is a surviving executor.45 But in the American states this rule is generally disregarded, special statutes, in most of the states, providing for the appointment of administrators with the will annexed.46 "Day in re, 7 Notes of Cases, 553. And where the authority of the executor is restricted, the same restriction should be attached to the letters testamentary. Barnes in re, 7 Jur. N. s. 195. And where the testator died domiciled abroad, the authority of the executor named must be determined, according to the law of the domicil; and where the courts of that country have decided that the authority of the executor to act is limited to a certain time, the courts of England treat his office as having expired, and will grant administration with the will annexed, as in other cases, to the universal legatee, and probate of the will to the universal heir. Laneuville v. Anderson, 2 Sw. & Tr. 24; Oliphant in re, 30 Law J. Prob. 82. 45 1 Wms. Exrs. 222-225; 2 Rev. Stat. N. Y. 71, § 17. 46 Mass. Gen. Stat. ch. 93, § 9; Vt. Gen. Stat. ch. 50, § 10. Similar provis ions exist in all the states where we have examined, but many of them are of recent date, the rule having been otherwise at an earlier period. Drayton's But it would be useless to repeat the statutory provisSee Dakin v. Demming, 6 Paige, 95. Will, 4 McCord, 46. ions upon the subject. CHAPTER III. THE APPOINTMENT AND DUTY OF ADMINISTRATORS. SECTION I. THE NATURE AND ORIGIN OF THE OFFICE. 1. An administrator is one appointed by law to perform the ordinary duties of an executor. 2, and n. 3. The basis of the present American law found in the early English statutes. 3. The husband's right to administer on the wife's estate and to hold her personalty. 4. The husband's right to such personalty vests upon the decease of the wife, and before his appointment as administrator. 5. When wife leaves a will, the husband has no exclusive right to administer cum testamento. 6. The widow of an intestate generally allowed to administer the estate. 7. How the widow may forfeit her right to administer on her husband's estate. 8. Order in which kindred are entitled to administration. 9. Grounds of selection by the probate court among those of equal degree. 10. To whom administration will be granted, decedent being domiciled abroad. 17. Persons disqualified from acting as administrators. 18. Bond required for faithful administration, and how far the court will dispense with ample sureties. §7. 1. AN administrator is, virtually, an executor, to settle the estate of a deceased person, either where no will appears, or if so, where for any reason there is no one to act as executor of the duties imposed by the will. If there be no will, he is simply an administrator, to settle the estate according to the requirements of the law applicable to the case. He has, in fall respects, the same rights and duties, and is subject to the same responsibilities as an executor, except that where the testator directs that his executor shall act without giving sureties for faithful administration, he cannot be required to do so, unless, for special cause shown, the probate court should be of opinion that the rights of creditors and others made such security indispensable to the ends of justice, or where the statutes of the state require such security, in all cases; but the administrator, being an officer of the law merely, is required, in all cases, to give security for the faithful performance of his duties.1 2. We have already stated, that the appointment of administrators in England is founded upon the statute 21 Ed. 3, st. 1, § 11,2 and subsequent statutes. It will not be useful to attempt to give any synopsis, even, of the statutes in the several American states upon this point, since they are generally based upon 1 It has been said, by most of the text-writers upon this subject, that the executor may do many acts, before his appointment to the office by the probate court; indeed all acts towards the settlement of the estate except maintaining an action in court; and that he may bring such action if he obtain letters testamentary before the trial; but that the administrator can do no act before his appointment; and if he bring an action it shall be abated, notwithstanding his appointment before the return of the writ. Such refinements are of little practical importance. Regularly, neither the executor nor administrator should be allowed to do any act in regard to the estate before his appointment by the probate court, except such necessary ones as are indispensable to the preservation of the estate, and as to such, there can be little question they will be brought under the shield of a subsequent appointment from the probate court, as well in the case of an administrator as of an executor. 2 Ante, § 6, n. 1. The 21 Henry 8, ch. 5, § 3, provides that in case any person dies intestate, or that the executors named in any testament refuse to prove it, the Ordinary shall grant administration to the widow or next of kin, or both, in his discretion; and this forms the basis of the present law upon the subject in most of the American states. |