the applicant is declared by statute to be incompetent to serve.24 While the appointment of an executor by the last will of the testator is only provisional, and requires the approval of the court, yet the law allows a testator to appoint his executor subject to such approval, and treats the nominee as entitled to the office until he renounces it or is disqualified. Unless for some reason the nominee is incompetent to act, the appointment by will makes such appointee the representative of the estate, even though he thereafter renounce the trust.25

§ 1196. Effect of Failure of Appointee to Apply for Letters Testamentary Within Time Specified by Statute.

The one appointed by will may, of course, renounce the trust. He may do this directly or by implication. In some jurisdictions, by statute, the failure of the appointee to apply for letters testamentary within a specified time is deemed such a renunciation as to authorize the probate court, upon proper application, to appoint an administrator with the will annexed. The failure of the appointee to proceed as directed by statute causes him to lose his preference, unless good cause for delay be shown.26

§ 1197. Order in Which Persons Are Entitled to Administer Estates of Intestates: Nominees.

A testator may leave a will disposing of his estate, but in which he does not nominate any one to act as executor; or the one so nominated in the will may predecease the

24 In re Bauquier, 88 Cal. 302, 26 Pac. 178, 532; McGregor v. McGregor, 1 Keyes (N. Y.) 133, 139; Bowman's Appeal, 62 Pa. St. 166; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828.

25 Drexler v. McGlynn, 99 Cal 143, 33 Pac. 773.

26 Estate of McDonald, 118 Cal. 277, 280, 50 Pac. 399; Tracy v. Muir, 151 Cal. 363, 373, 121 Am. St. Rep. 117, 90 Pac. 832; Williams v. Addi

testator, refuse to act or for some reason be disqualified from acting. In such cases the appointment is of an administrator with the will annexed. In most jurisdictions it is prescribed by statute the order in which persons are entitled to take out letters of administration on the estate of a decedent in the event of intestacy. If not disqualified for some other reason, the right to take out letters of administration upon the estate of an intestate decedent generally is first vested in the surviving husband or wife, after them in the children, the father or mother, the brothers, sisters, grandchildren, next of kin entitled to share in the distribution, the public administrator, creditors, and finally any person legally competent.27 Relatives of an intestate decedent are generally entitled to letters only when they succeed to some portion of the decedent's estate. 28 Males are sometimes preferred to females.

A statute which prescribes the order in which persons are entitled to letters of administration in the event of intestacy, does not apply to those cases where the testator leaves a will, although he may not nominate an executor or the nominee may for some reason refuse or fail to act. A testator who leaves a will does not die intestate and therefore the rule as to those entitled in the event of intestacy has no application.28a

son, 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; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828.

Compare: Ramp v. McDaniel, 12 Ore. 108, 6 Pac. 456.

As to length of time after death

of testator the will should be offered for probate, see § 1189.

27 For example, Cal. Code Civ. Pro., § 1365.

28 In re Owen's Estate, 30 Utah 351, 85 Pac. 277.

28a Estate of Barton, 52 Cal. 538; Estate of McDonald, 118 Cal. 277,

The general rule as to the right to appointment as administrator in the event of intestacy is that the right is in the order in which the heirs or next of kin of the decedent are entitled to succeed to his estate. If a testator leaves a will wherein his dispositions are contrary to the rules of succession, as for instance, where the widow of the testator takes nothing under the will, but property is left to his child, such child as a beneficiary has a prior right to the widow to letters of administration with the will annexed; and such child as a beneficiary has a prior right to the nominee of the widow who takes nothing under the will.29

It is, however, often the rule that the surviving husband or wife of an intestate decedent, not only has a prior right to letters of administration in the event of intestacy, but, should either he or she not desire to act, but should nominate another to perform the duties of the office, such nominee, if otherwise qualified has a prior right to the appointment to those next in the order of preference.30 In some states the right of nomination extends to all relatives who would succeed to the estate of the intestate decedent, should one having a prior right not exercise the same.31 But where one who is entitled to preference can

279, 50 Pac. 399; Estate of Von Buncken, 120 Cal. 343, 52 Pac. 819.

Compare: Smith v. Ferry, 6 Wash. 285, 33 Pac. 585; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828.

29 Estate of Crites, 155 Cal. 392, 101 Pac. 316. See, also, Estate of Von Buncken, 120 Cal. 343, 52 Pac. 819.

30 Cal. Code Civ. Pro., § 1365; Estate of Stevenson, 72 Cal. 164,

13 Pac. 404; Estate of Shiels, 120 Cal. 347, 52 Pac. 808.

81 In Utah, an alien relative of an intestate decedent may request the appointment of an administrator, and if no nearer relative makes application for letters, such nominee is entitled to letters.-In re Owen's Estate, 30 Utah 351, 85 Pac. 277. See, also, Headman v. Rose, 63 Ga. 458; Strong v. Dignan, 207 Ill. 385, 99 Am. St. Rep.

not act as administrator for some cause, such as nonresidence, yet is authorized to nominate who shall so act, it is necessary that such nomination be actually made. It is a permissible authority only.32

§1198. English Rule as to Nominees.

In England, under the statute of 20 and 21 Vict., ch. 77, 73, in the event of intestacy or of no executor being named in the will or of the one named being incapable or unwilling to act, it is not obligatory upon the court to grant administration to the one who, except for the passage of the above act, would be entitled to letters of administration, but the court may in its discretion appoint such person as it may deem fit. This power in the court is contingent, by the act named, that it shall appear to the court to be necessary or convenient in the cases mentioned, by reason of the insolvency of the estate of the deceased, or other special circumstances, to make the appointment. Where such special circumstances exist, it is usual for the court to grant administration to the nominee of the person entitled to letters, there being sufficient reason shown why the one so entitled can not act.33 The one entitled to make the nomination is the executor named in the will or, in the event of intestacy or no executor having been named or having died prior to the death of the

225, 69 N. E. 909; Cobb v. Newcomb, 19 Pick. (36 Mass.) 336; Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. (N. Y.) 101; Little v. Berry, 94 N. C. 433; Shomo's Appeal, 57 Pa. St. 356; In re Owen's Estate, 32 Utah 469, 91 Pac. 283.

32 Clark v. Elizabeth, 61 N. J. L. 565, 40 Atl. 616, 737.

33 Goods of Hale, L. R. 3 P. & D. 207; Goods of Hopkins, L. R. 3 P. & D. 235; Goods of Martindale, 1 Sw. & Tr. 8; Goods of O'Brien, 2 Sw. & Tr. 604; Goods of Barton

testator, the right is vested in the one first entitled to letters of administration.34

Administration may be granted to the attorney of the one entitled to administration;35 it may be granted under a general power of attorney,36 but it is sufficient if the court is satisfied that the person entitled to letters desires the one making application to act for him.37 The one who has the right to nominate the appointee for letters of administration may grant, by a power of attorney, this right to another.88 But this right of nomination, in the cases above mentioned, exists only under the special circumstances mentioned, and there must be good cause shown why the one entitled to act desires another to administer in his stead. The fact that the one entitled merely wishes another to act, does not show the special circumstances required.39 If the one entitled to administer is a resident and able to act, he has not the right of nomination,40

§ 1199. Aliens as Executors or Administrators: Common Law Rule.

As to aliens generally they could not act as executors under the civil law unless so appointed by military testa.

(1898), P. D. 11; Goods of Potter (1899), P. D. 265.

34 Goods of Pine, L. R. 1 P. & D. 388; Goods of O'Brien, 2 Sw. & Tr. 604; Goods of Langham, 25 L. T. N. S. 951.

35 Goods of Leeson, 1 Sw. & Tr. 463; Goods of Abdul Hamid Bey, 78 L. T. N. S. 202.

36 Goods of Escot, 4 Sw. & Tr. 186.

37 Goods of Morley, 3 Sw. & Tr. 425.

38 Goods of Rosser, 33 L. J. P. 155; s. c., 10 L. T. N. S. 695.

39 Goods of Richardson, L. R. 2 P. & D. 244; Goods of Hale, L. R. 3 P. & D. 207.

40 Goods of Burch, 2 Sw. & Tr. 139; Goods of Bullar, 22 L. T. N. S. 146.