bate at any time, no matter how great, after the death of the testator.50 And even though letters of administration may have been granted of the estate of a decedent under the belief and apparent proof that he had died intestate, yet thereafter, upon the production of a valid will of the decedent, probate of the same was granted.51 A written will could be offered for probate as soon as desired after the testator's death, but a certain time was required before it could be admitted because of the necessity of giving notice of the application. These matters are now to an extent jointly covered by statute in the various jurisdictions. Practically all statutes require that notice be given of the application for the probate of a will by publication, posting, or service of notice of the time and place appointed for the hearing, upon the heirs of the decedent and those named as executors in his will.52 Other statutes require the person named as executor in the will, within a limited time after the testator's death, to present the will for probate, and his failure to do so is a renunciation of his trust, unless good the various jurisdictions, Appendix, this volume. As to nuncupative wills, see §§ 159-190. 50 Vance v. Crawford, 4 Ga. 446; Rebhan v. Mueller, 114 Ill. 343, 55 Am. Rep. 869, 2 N. E. 75; Haddock v. Boston, etc., R. Co., 146 Mass. 155, 4 Am. St. Rep. 295, 15 N. E. 495; Fatheree v. Lawrence, 33 Miss. 585, 588; Hanley v. Kraftczyk, 119 Wis. 352, 96 N. W. 820. 51 Wilkinson v. Robinson, 14 Jur. 72; Gaines v. Hennen, 24 How. (U. S.) 553, 16 L. Ed. 770; Clagett v. Hawkins, 11 Md. 381; Waters v. Stickney, 12 Allen (94 Mass.) 1, 90 Am. Dec. 122; Campbell v. Logan, 2 Bradf. (N. Y.) 90. 52 For example, see Cal. Code of Civ. Pro., §§ 1303, 1304. New Jersey enacted a law providing that no will could be proved until ten days after the death of the testator.-Matter of Evans, 29 N. J. Eq. 571. In Maryland, twenty days after the death of intestate, and at least seven days' notice, must elapse before administration is granted of intestate's estate, unless fact of death is notorious. cause for delay be shown.58 In some jurisdictions original letters testamentary or of administration can be granted only within a fixed period after the death of the testator, except where the interested party was prevented from acting either by reason of disability or fraud, or other good cause be shown why administration should be had." Such statutes do not apply to administration de bonis non55 or with the will annexed.56 However, it has been held that the right to secure the appointment of an administrator is a private right, and that the general statutes of limitation are applicable to such proceedings.57 Jones v. Harbaugh, 93 Md. 269, 48 Atl. 827; Williams v. Addison, 93 Md. 41, 48 Atl. 458. 53 For example, see Cal. Code of Civ. Pro., § 1301. See, also, Williams v. Addison, 93 Md. 41, 48 Atl. 458; In re Sprague, 125 Mich. 357, 84 N. W. 293; Sutton 'v. Osborne, 31 Wash. 340, 71 Pac. 1012. See § 1196 as to effect of failure to apply for letters testamentary. 54 Connecticut. Ten years after death, unless court find that administration should be granted.— Colburn's Appeal, 76 Conn. 378, 56 Atl. 608. lowa.-Cummings v. Lynn, 121 Iowa 344, 96 N. W. 857. Kentucky.-Twenty years.—Anderson v. Smith, 3 Metc. (60 Ky.) 491, 493. Pennsylvania.-No letters of administration shall in any case be originally granted after the expiration of twenty-one years from the death of the deceased, except III Com. on Wills-2 upon good cause shown. Hanbest's Estate, 21 Pa. Super. Ct. 427. Texas. Four years.-Harwood v. Wylie, 70 Tex. 538, 7 S. W. 789; Lyne v. Sanford, 82 Tex. 58, 27 Am. St. Rep. 852, 19 S. W. 847. The rule applies to ancillary as well as original letters.-Nelson v. Bridge, 98 Tex. 523, 86 S. W. 7. 55 Crossan v. McCrary, 37 Iowa 684; Bancroft v. Andrews, 6 Cush. (60 Mass.) 493. Contra: Hanbest's Estate, 21 Pa. Sup. Ct. 427; Nelson v. Bridge, 98 Tex. 523, 86 S. W. 7, but holding such proceedings voidable only, and not subject to collateral attack. 56 Lawrence's Appeal, 49 Conn. 412. 57 Gwinn v. Melvin, 9 Ida. 202, 108 Am. St. Rep. 119, 2 Ann. Cas. 770, 72 Pac. 961; Jespersen v. Mech, 213 Ill. 488, 72 N. E. 1114. § 1190. Admissibility of Will to Probate Does Not Involve the Construction of Its Terms. When a will is offered for probate, the sole question which concerns the court is whether the instrument has been duly executed by a competent person, unaffected by fraud or undue influence. Those beneficially interested in the testator's estate may appear and contest the probate on the ground of mental incapacity of the testator, fraud, duress or undue influence exerted over him, that the will is a forgery, or the like; but the question of final determination remains the same, namely, Is it the last will and testament of the decedent? This does not involve a construction of the terms of the will; the only matter which concerns the court, when the will is offered for probate, is whether or not the instrument presented is entitled to be admitted. The validity or invalidity of any of its provisions or dispositions is of no moment at such time. The construction of a will is a matter which arises only after the instrument has been accepted.58 58 St. John's Parish v. Bostwick, 8 App. Cas. (D. C.) 452; Hall's Heirs v. Hall's Exrs., 38 Ala, 131; Wetter v. Habersham, 60 Ga, 193; Hawes v. Humphrey, 9 Pick. (26 Mass.) 350, 361, 20 Am. Dec. 481; Byrne v. Hume, 84 Mich. 185, 191, 47 N. W. 679; Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959; In re John's Will, 30 Ore. 494, 36 L. R. A. 242, 47 Pac. 341, 50 Pac. 226; Hegarty's Appeal, 75 Pa. St. 503; Best v. Gralapp, 69 Neb. 811, 5 Ann. Cas. 491, 96 N. W. 641, 99 N. W. 837. Compare: Matter of Lampson's Will, 22 Misc. Rep. 198, 49 N. Y. Supp. 576. CHAPTER XLIII. WHO MAY BE EXECUTORS OR ADMINISTRATORS. § 1191. Executors and administrators defined and distinguished. § 1192. Legal duties of executors and administrators are the same. § 1193. Common law rule as to who could act as executors. § 1194. Statutory changes as to disqualifications of executors. § 1195. Competency of appointee of testator to act as executor. § 1196. Effect of failure of appointee to apply for letters testamentary within time specified by statute. § 1197. Order in which persons are entitled to administer estates of intestates: Nominees. § 1198. § 1199. English rule as to nominees. Aliens as executors or administrators: Common law rule. § 1200. Statutory regulations as to aliens or non-residents acting as executors or administrators. § 1201. Infants as executors or administrators. § 1202. A married woman as executrix or administratrix. § 1203. Corporations as executors. § 1204. Conviction of an infamous crime as a disqualification. § 1205. Want of integrity as a disqualification. § 1206. Want of understanding as a disqualification. § 1207. Drunkenness as a disqualification. § 1208. Gross immorality as a disqualification. § 1209. Improvidence as a disqualification. § 1210. Insolvency or poverty as a disqualification. § 1211. Interests adverse to the estate as a disqualification. § 1212. The same subject: Creditors. § 1213. The same subject: Debtors. § 1214. The same subject: Partners. § 1215. Public administrators. § 1191. Executors and Administrators Defined and Distinguished. 3 An executor is a person appointed "to carry the will into effect or execution after the death of the testator, and to dispose of his estate according to its tenor." He is the person appointed to the general office of executing a man's last will and testament.2 An "executor" is one who is named in a will as the person who administers the estate as distinguished from one who administers either under the law of intestacy or under a will without being named therein. Some define an "executor" as "the person to whom the execution of the last will and testament of personal estate is, by the testator's appointment, confided." Formerly an executor, as well as an administrator, administered only the personal estate of the decedent, but modern statutes now vest the executor or administrator with power over the realty as well." And the real property of the estate is liable for the decedent's debts should the personalty prove insufficient." An administrator is the person appointed to manage and distribute the estate of an intestate decedent or of a testator who has no executor." The terms "executor" and 11 Burrill Law Dict. 584, quoted in Re Lamb's Estate, 122 Mich. 239, 80 N. W. 1081, and in Shufeldt v. Hughes, 55 Wash. 246, 104 Pac. 253. 2 Conklin v. Egerton's Admr., 21 Wend. (N. Y.) 430, 436. 3 Matter of Account of Sudds as Executor, 32 Misc. Rep. (N. Y.) 182, 66 N. Y. Supp. 231. An executor is appointed by the testator and derives his authority to act from the will.-In re Miller's Estate, 216 Pa. 247, 65 Atl. 681; Matter of Haughian, 37 Misc. Rep. (N. Y.) 457, 75 N. Y. Supp. 932. 42 Bl. Com. *503; Compton v. McMahan, 19 Mo. App. 494, 505, and Worth v. M'Aden, 21 N. C. 199, 209, both quoting Williams on Executors. 5 See § 1183. 6 See § 1182, and sections referred to in notes thereto. 7 Bouv. Law Dict., tit. Admn. |