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CHAPTER XLIV.

MANNER AND EFFECT OF APPOINTMENT OF EXECUTOR BY WILL.

§ 1216. Source of executor's authority.

§ 1217. Express and constructive appointment of executor.
§ 1218. No particular expressions required for appointment of
executor by will.

§ 1219. Constructive appointment of executor.

§ 1220. Limited, conditional and substitutional appointments.
§ 1221. Testator may delegate to another the right to appoint

executor.

§ 1222. Right of one named as executor in will, to the appoint

ment.

§ 1223. Acceptance of office by executor named in will.

§ 1224. Renunciation of office by executor named in will.

§ 1225. After acceptance, executor can not resign except with sanction of court.

§ 1226. Manner in which executor may renounce office.

§ 1216. Source of Executor's Authority.

An instrument may be valid as the last will and testament of a decedent although it merely nominates an executor and makes no disposition of property, and it will be admitted to probate as such.1 An executor derives

1 Godolph., pt. 2, ch. 5, § 1; Beard v. Beard, 3 Atk. 72; Brownrigg v. Pike, L. R. 7 Pro. Div. 61; Morey v. Sohier, 63 N. H. 507, 56 Am. Rep. 538, 3 Atl. 636; Matter of Davis' Will, 45 Misc. Rep. 306, 92 N. Y. Supp. 392; In re John's Will, 30 Ore. 494, 36 L. R. A. 242, 47 Pac. 341, 50 Pae. 226.

ecutors could not be primarily ap-
pointed by codicil, yet they could
be substituted or others added by
codicil.-Godolph., pt. 1, ch. 1, § 3;
Swinb. Wills, pt. 1, § 5, pl. 5.

The rule of the text applies
even though the one named as
executor renounces the office,
since that is a matter occurring
after the testators' death, and

The very old rule was that ex

A

his office from the appointment by the last will of the testator. It has been said that the admission of the will to probate and the appointment of the executor by the court are merely evidence of the executor's authority. Yet a will must be offered and proved before it is entitled to judicial sanction, and the executor named in the will can act as such only when he is not disqualified. Under probate practice the executor should establish his competency and the court should make its order of appointment, after which the appointee takes the oath of office, gives a bond when required, and receives his letters testamentary. Until the termination of this procedure complete authority is not vested in the nominee to act as executor.*

An executor must be named either in the will wherein he is expressly or constructively appointed or in some writing incorporated in the will by reference."

therefore the testator does not die intestate.-Goods of Jordan, L. R. 1 P. & D. 555.

- -

Where the deceased made an olographic will and in the final clause said, "I desire that of S. F. shall settle my estate," and thereafter made a codicil to the will wherein he appointed another "to have full charge of my estate and receive all moneys and pay all bills for the term of seven years," the appointment made in the codicil supersedes that made in the will.-Estate of Ringot, 124 Cal. 45, 56 Pac. 781.

2 Williams Exrs. (3d Am. ed.) *196; Fidelity & Casualty Co. v. Freeman, 109 Fed. 847, 54 L. R. A. 680, 48 C. C. A. 692; Wood v. Cosby,

76 Ala. 557; Hathorn v. Eaton, 70 Me. 219; Hartnett v. Wandell, 60 N. Y. 346, 19 Am. Rep. 194; Saxe v. Saxe, 119 Wis. 557, 97 N. W. 187. 3 Humphreys v. Humphreys, 3 P. Wms. 349; In re Somervaill's Will, 104 Wis. 72, 80 N. W. 65.

4 Fidelity & Casualty Co. v. Freeman, 109 Fed. 847, 54 L. R. A. 680, 48 C. C. A. 692; Wood v. Cosby, 76 Ala. 557; Diamond v. Shell, 15 Ark. 26; In re Van Vleck's Estate, 123 Iowa 89, 98 N. W. 557; Millay v. Wiley, 46 Me. 230; Humbert v. Wurster, 22 Hun (N. Y.) 405; Saxe v. Saxe, 119 Wis. 557, 97 N. W. 187.

5 Goods of Dallow, L. R. 1 P. & D. 189.

The fact that the words "execu

§ 1217. Express and Constructive Appointment of Executor. One may be expressly appointed to the office of executor by the last will of a decedent, or the appointment may be constructive, in which latter case he is called executor according to the tenor. Where the will recommends or commits to one or more the rights which appertain to the office of executor, although by words of circumlocution, the effect is the same as if the appointment was express.

§ 1218. No Particular Expressions Required for Appointment of Executor by Will.

A testator may expressly appoint his executor by a statement in his will that he nominates or appoints A B—as his executor or as the executor of his last will and testament. However, no particular form is required in order that a testator may make such an appointment, and the use of the word "executor" is unnecessary." Any language which expressly or by fair intendment grants to a person the authority and duties of the office will be held to be an appointment of an executor. The court must, however, be able to gather a testamentary intent that the person named should take charge of the estate, collect the assets, liquidate the indebtedness, and perform

tors and witnesses" were written opposite the names of the attesting witnesses, with no reference in the body of the will in any way indicating that the witnesses were to be executors or in any terms linking the two expressions, did not constitute the witnesses executors.-Goods of Woods, L. R. 1 P. & D. 556.

6 Williams Exrs. (3d Am. ed.)

8

*196; Grant v. Spann, 34 Miss. 294; In re Hill, 102 Mo. App. 617, 77 S. W. 110.

7 Goods of Morony, L. R. 1 Ir. 483; Goods of Bradley, L. R. 8 Pro. Div. 215.

8 Equitable Trust Co. v. Coughlin, 148 Ky. 789, 147 S. W. 739; In re Hill's Estate, 102 Mo. App. 617, 77 S. W. 110.

the duties and possess the powers appertaining to the office of executor.9

The expressed intention of the testator in naming his executor must govern the court, and such intention should not be defeated.10 Where there is some uncertainty in the language employed, the intent of the testator must be sought, and slight expressions in his will may suffice to determine such intent.11

§ 1219. Constructive Appointment of Executor.

Although the testator may in his will make no express appointment of an executor, yet if therein he recommends or commits to one or more persons the charges and duties of an executor, or confers any rights which belong to an executor, it is a constructive appointment and tantamount to an express appointment.12 In the absence of an express appointment, authority given to a trustee, legatee, or other person named in the will, to collect debts owing to

Henfrey v. Henfrey, 4 Moore P. C. C. 33; In re Hill's Estate, 102 Mo. App. 617, 77 S. W. 110.

10 State v. Holtcamp, 267 Mo. 412, 185 S. W. 201.

11 Smith v. Haines, 86 N. J. Eq. 224, 98 Atl. 317; In re Robitscher's Estate, 92 Misc. Rep. 653, 156 N. Y. Supp. 265.

12 Grant v. Spann, 34 Miss. 294. Appointing a named person to hold and administer in trust all the testator's estate which the will stated was well known to such person, constituted him executor.Goods of Way (1901), P. 345.

In Androvin v. Poilblanc, 3 Atk.

299, 301, Lord Hardwicke said that a person named in a will as "universal heir" would have to go to the ecclesiastical court for the probate of the will.

"Although the testator does not in his will, nominate an executor in express terms, but confides the execution of it to persons whom he denominated trustees, conferring upon them the rights belonging to executors, it amounts to a constructive appointment of them to that office; and although called trustees by him, they are, also, according to the tenor of his will, executors."-Myers v. Daviess, 10 B. Mon. (49 Ky.) 394.

and pay off those of the testator, is considered decisive as an appointment according to the tenor of such person as executor.13 No express authority need be given to collect and pay the debts. It is sufficient if the duty imposed and authority given necessarily imply the right to do so.14

A person has been held to have been constructively appointed executor where the testator willed he should take charge of his children as guardian, sell the perishable property, rent the house, and hire out the negroes.15 A direction in the will that the public administrator shall "sell out all real estate and personal estate" is an appointment of him as executor.16 The words "I point my partner to settle my business, to pay all my lawful debts," aptly describes the duties of an executor.1

§ 1220. Limited, Conditional and Substitutional Appointments. Different individuals may be appointed executors in the last will of a decedent, with separate functions, and to succeed each other in the event that those first named shall die, become incapacitated, or unwilling longer to serve, and two persons may be appointed to act for a definite period during the absence of one appointed executor.18

13 Fry v. Leslie, 3 Phillim, 116; Goods of Cooke (1902), P. 114; Fleming v. Bolling, 3 Call (Va.) 75.

14 Pickering v. Towers, Ambl. 363; Grant v. Spann, 34 Miss. 294.

Where there was no expressed designation of an executor in the testator's will, it was held that a legacy to a person and her children "for burial expenses" operated as a constructive appoint

ment. In re Walsh's Estate, 144 N. Y. Supp. 442.

15 Stone v. Brown, 16 Tex. 425. 16 Baker v. Baker, 18 App. Div. (N. Y.) 189, 45 N. Y. Supp. 870.

17 Equitable Trust Co. v. Coughlin, 148 Ky. 789, 147 S. W. 739.

18 Hill V. Tucker, 13 How. (U. S.) 458, 14 L. Ed. 223; Kinney v. Keplinger, 172 Ill. 449, 50 N. E.

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