required to bring an action, might do so in the name of the executor.17 Poverty alone was not considered in itself a sufficient cause to grant a receiver;18 however, since the executor was considered in equity as a bare trustee, if insolvent the court of chancery could compel him, the same as any trustee, to give a bond or security for the faithful performance of his trust.19

In some jurisdictions one who is insolvent is not qualified to be appointed as executor or administrator, insolvency being that condition the result of which is inability of one to pay his debts in the usual course of business. The disqualification prevails even though the executor or administrator has given a bond.20 One reason for the rule is that those interested in the estate are entitled to the security of an administrator's personal liability as well as to that of his bondsmen. If letters may be granted to an insolvent person, those entitled to receive the decedent's estate have but the single security of the bond. And if likelihood to become insolvent is a ground for removal of an executor or administrator, the court should not appoint one who may easily be removed.21 But poverty is not comprehended in the meaning of the term insolvency, and the lack of property does not of itself render one incompetent to be appointed executor or administrator even in those jurisdictions where insolvency is a disqualification.22

17 Rex v. Simpson, 1 W. Bl. 456, 458; Utterson v. Mair, 2 Ves. Jun. 95; s. c., 4 Bro. C. C. 269.

18 Hathornthwaite v. Russell, 2 Atk. 126.

19 Bacon's Abr., tit. Exrs. & Admrs., A., 6; Rex v. Raines, Carth. 457; Duncumban v. Stent, 1 Ch. Cas. 121; s. c., 1 Eq. Cas.

Abr. 238, pl. 21; Rous v. Noble, 2 Vern. 249; s. c., 1 Eq. Cas. Abr. 238, pl. 22.

20 Levan's Appeal, 112 Pa. St. 294, 3 Atl. 804.

21 Cornpropst's Appeal, 33 Pa. St. 537.

22 Bowersox's Appeal, 100 Pa. St. 434, 45 Am. Rep. 387.

As a general rule, however, neither poverty nor insolvency will disqualify one from being appointed executor or administrator.23 And it has been said that an honest executor who is poor is as worthy of confidence and trust as an honest executor who is rich.24 Under some statutes the courts are authorized to require an executor to give security where his circumstances have become so precarious as not to afford adequate security for the due administration of the estate. It has been held that such a statute does not prohibit the granting of letters testamentary to any persons except such as are possessed of property of their own to the full value of the estate, or that an executor should be superseded or required to find security whenever his property is reduced below that of the decedent. The obvious meaning of the statute is that an executor may be required to give security whenever the court is satisfied that his circumstances are such as to render it doubtful whether the property will be safe in his hands.25

§ 1211. Interests Adverse to the Estate as a Disqualification.

The office of executor or administrator is one of trust and confidence and should not ordinarily be committed to a person, if any choice is given by the statute, who has any special interest opposed to the interests of the

23 Matter of Osborn, 87 Cal. 1, 11 L. R. A. 264, 25 Pac. 157; Lynch V. Lively, 32 Ga. 575; Willson v. Whitfield, 38 Ga. 269; Bowman's Exrs. v. Wootton, 8 B. Mon. (47 Ky.) 67; Shields v. Shields, 60 Barb. (N. Y.) 57; Wilkins v. Harris, 60 N. C. 592; Higginson v. Fabre's Exrs., 3 Desaus. (S. C.) 89.

24 Matter of Osborn, 87 Cal. 1, 11 L. R. A. 264, 25 Pac. 157.

"The absence of worldly wealth is not of itself a controlling ground for denying letters."-In re Riede, 138 App. Div. 83, 122 N. Y. Supp. 600; affirmed in 201 N. Y. 596, 95 N. E. 1127.

25 Mandeville v. Mandeville, 8 Paige Ch. (N. Y.) 475.

estate or those entitled to receive it.26 It has been held where the statute enumerates the disqualifications of executor, of which interests adverse to the estate is not one, that a conflict of interest arising from a claim of indebtedness from the executor to the estate which he denies, is not a disqualification under the statute.27 But if one claiming the right to be appointed executor is certain to be engaged in litigation against the estate, as where he is attempting to enforce a claim against it in the courts of the state, he should not be appointed to administer the property. He can not at the same time properly represent the estate as the defendant while he is personally acting in the same matter as plaintiff.28

§ 1212. The Same Subject: Creditors.

From early times a debtor might make his creditor the executor of his last will. In such a case the executor could satisfy the debt out of the assets of the estate, but this did not give him a preference over debts of a superior nature which were entitled by law to be first paid.29 The rule was the same with regard to administrators, who

26 Justice v. Wilkins, 251 Ill. 13, 95 N. E. 1025; In re Schmidt's Estate, 183 Pa. 129, 38 Atl. 464; Rowell v. Adams, 83 S. C. 124, 65 S. E. 207; Bridgman v. Bridgman, 30 W. Va. 212, 3 S. E. 580.

27 Kidd v. Bates, 120 Ala. 79, 74 Am. St. Rep. 17, 41 L. R. A. 154, 23 So. 735.

28 Cogswell v. Hall, 183 Mass. 575, 67 N. E. 638.

29 Nunn v. Barlow, 1 Sim. & St. 588; Langton v. Higgs, 5 Sim. 228; Livesey v. Livesey, 3 Russ. 287, 542; Decker v. Miller, 2 Paige Ch.

(N. Y.) 149; Pace v. Burton, 1 McCord Eq. (S. C.) 247.

If a creditor is appointed executor by his debtor or obtains letters of administration of the debtor's estate, his right to retain sufficient to pay the debt is a remedy by the mere act of law, the reason being that the executor can not, without apparent absurdity, commence a suit against himself as a representative of the deceased to recover that which is due him in his own private capacity; but having the whole personal estate in his hands,

might retain sufficient to pay a debt to themselves, but an executor de son tort, although a creditor, could not retain, since it would be taking advantage of his own wrong.30

The modern rule is that one whose financial interests may be adverse to the estate of a decedent, such as a creditor, is not regarded as incompetent to act as executor or administrator if otherwise capable. In fact most statutes give creditors the preference after the next of kin, to appointment as administrators. Creditors are persons interested in the estate, and there is provision for the protection of estates when the adverse interests of creditors come into question.32 Among the various creditors, the one holding the largest claim is generally entitled to preference in the granting of letters of admin

so much as is sufficient to answer his demand is by operation of law applied to that particular purpose. Otherwise he would be in a worse position than all the rest of the world.-3 Bl. Com. *18.

30 2 Bl. Com. *511; Coulter's Case, 5 Coke 30 A.

81 Tanner v. Huss, 80 Ga. 614, 6 S. E. 18; Lovering v. King, 97 Ind. 130, 133; Glenn v. Reid, 74 Md. 238, 24 Atl. 155; Smith v. Sherman, 4 Cush. (58 Mass.) 408; Wilkinson v. Conaty, 65 Mich. 614, 32 N. W. 841; Matter of Frye, 75 Hun (N. Y.) 402, 27 N. Y. Supp. 14; Carthey v. Webb, 6 N. C. 268; Haxall v. Lee, 2 Leigh (Va.) 267. In England this is the rule by III Com. on Wills-4

custom. A creditor can not be paid unless there is administration, and administration is granted to him if the next of kin fail or refuse to apply.-Goods of Bateman, L. R. 2 P. & D. 242.

Although a corporation may be a creditor of a decedent, an officer of such corporation is not such a creditor as entitles him to letters of administration.-Myers v. Cann, 95 Ga. 383, 22 S. E. 211; Glenn v. Reid, 74 Md. 238, 24 Atl. 155; Estate of Owens, 30 Utah 351, 85 Pac. 277.

82 Bowen v. Stewart, 128 Ind. 507, 26 N. E. 168, 28 N. E. 73. See, also, Aldrich v. Annin, 54 Mich. 230, 19 N. W. 964.

istration, although some jurisdictions give priority to the creditor first applying.34

§ 1213. The Same Subject: Debtors.

The common law rule was that if a testator appointed his debtor as the executor of his last will, the debt was thereby extinguished, irrespective of whether the appointee so acted or not, provided the estate was sufficient to pay the testator's debts.35 But if a person died intestate and the administration was committed to a debtor, the debt was not extinguished, since the administrator is appointed by the act of law, whereas the executor is by the act of the party.36 In equity it was at first questioned whether the debt was forgiven where the debtor was appointed executor by the will of his creditor,37 but it

33 Goods of Smith, 67 L. T. N. S. 503; Goods of Godfrey, 2 Sw. & Tr. 133; Williams v. Williams, 24 App. Cas. (D. C.) 214; Glenn v. Reid, 74 Md. 238, 24 Atl. 155.

34 Succession of Beraud, 21 La. Ann. 666; Matter of Hawley, 37 Misc. Rep. (N. Y.) 667, 76 N. Y. Supp. 461.

35 2 Bl. Com. *512; Bacon's Abr., tit. Exrs. & Admrs. A., 10; Dorchester v. Webb, Cro. Car. 372; Wankford v. Wankford, 1 Salk. 299; Buckel v. Smith, 26 Ky. L. 991, 82 S. W. 1001; Probate Judge v. Sulloway, 68 N. H. 511, 73 Am. St. Rep. 619, 49 L. R. A. 347, 44 Atl. 720; Gardner v. Miller, 19 Johns. (N. Y.) 188; Mason's Estate (Davisson v. Akin), 42 Ore. 177, 95 Am. St. Rep. 734, 70 Pac. 507. In Massachusetts the courts

have denied that this rule prevailed at common law, but have asserted that if the estate has a claim against the executor or administrator, he was incapacitated from acting except that he yielded all controversy regarding the debt and treated it as assets of the estate, and that this was tacitly consented to by accepting the duties of the trust.-Bassett v. Fidelity etc. Co., 184 Mass. 210, 100 Am. St. Rep. 552, 68 N. E. 205. See, also, Hodge v. Hodge, 90 Me. 505, 60 Am. St. Rep. 285, 40 L. R. A. 33, 38 Atl. 535.

36 Bacon's Abr., tit. Exrs. & Admrs., A., 10; Williams Exrs. (3d Am. ed.) *1127.

87 Brown v. Selwin, Ca, Temp. Talb. 240, 242.