statutes have been enacted authorizing the court having probate jurisdiction to revoke letters testamentary or of administration for various causes, and the effect of permitting an executor or administrator to resign and appointing his successor is practically a removal or revocation of letters.40 But independently of statute it is held that the court may permit an executor or administrator to resign even though there be no cause for his removal, in those cases where he has not taken actual possession of the assets of the estate or has intermeddled with the affairs of the state even though he may have proved the will or have qualified for the office. It is held that the court should not permit the resignation of an executor or administrator after he has qualified unless it has been shown that he has not taken possession of any of the assets of the estate.12 § 1226. Manner in Which Executor May Renounce Office. The early rule in England was that the renunciation of office by one named as executor in the last will of a testator had to be entered and recorded in the spiritual court.43 In some jurisdictions of the United States it is McDaniel, 12 Ore. 108, 6 Pac. 456; 40 Marsh v. People, 15 III. 284; Thayer v. Homer, 11 Metc. (52 Mass.) 104; Trumble v. Williams, 18 Neb. 144, 24 N. W. 716; Tulburt v. Hollar, 102 N. C. 406, 9 S. E. 430; Ramp v. McDaniel, 12 Ore. 108, 6 Pac. 456. 41 Meek v. Curtiss, 1 Hagg. Ecc. 127; Panchard v. Weger, 1 Phillim. 212; Jackson v. Whitehead, 3 Phillim. 577; Mitchell v. Adams, 23 N. C. 298; Sawyer v. Dozier's Heirs, 27 N. C. 97. 42 Buckley's Case, 1 Browne (Pa.) 289; Haigood v. Wells, 1 Hill Eq. (S. C.) 59; Chapman v. Charleston, 30 S. C. 549, 3 L. R. A. 311, 9 S. E. 591. 43 Long v. Symes, 3 Hagg. 776; Williams Exrs. (3d Am. ed.) *231. Under the statutes of 21 Hen. VIII, ch. 5, § 8, and of 55 Geo. III, necessary to file a written renunciation in the proper court or to have a record of the same entered therein,** but the provisions of the statutes generally refer to the manner in which an acting executor or administrator may resign.45 In many jurisdictions, prior to the issuance of letters, the one named as executor may renounce the office by failing to prove the will or appear,16 and renunciation may also be shown by matters or conduct out of court.47 ch. 184, § 37, the ordinary could cite the one named as executor to appear and prove or refuse the testament, and he suffered penalties for refusal. 44 Newton v. Cocke, 10 Ark. 169; Stebbins V. Lathrop, 4 Pick. (Mass.) 33; Bowman's Appeal, 62 Pa., St. 166. 45 Ala. Code (1907), § 2576; Cal. Code Civ. Pro., § 1427; 2 Ga. Civ. 46 Code (1895), §§ 3515, 3516; Kentucky, Warfield v. Brand, 13 Bush (Ky.) 77; N. Y. Code Civ. Pro., §§ 2689, 2690; Tenn. Code, §§ 3973, 3974. 46 See §§ 1188, 1189. 47 Estate of Keane, 56 Cal. 407; Solomon v. Wixon, 27 Conn. 520; Pollard v. Mohler, 55 Md. 284; Thornton v. Winston, 4 Leigh (Va.) 152. CHAPTER XLV. ADMINISTRATION WITH WILL ANNEXED. § 1227. When administrator with will annexed may be ap pointed. § 1228. Statutes providing that letters of administration with will annexed shall issue as in case of intestacy. § 1229. Right of residuary legatee to letters of administration with will annexed. § 1230. The same subject: Right of executor of deceased residuary legatee. § 1231. Right of executor of deceased executor to represent first testator. § 1232. Right of nominees to letters of administration with will annexed. § 1233. The same subject. § 1234. As to right of trustee under will, to letters. § 1235. When guardian of an infant beneficiary is preferred. § 1236. Executor named in will may be granted administration with will annexed. § 1237. When application for appointment must be made. § 1238. Powers and duties of administrator with will annexed. § 1239. The same subject: Powers cease if will be set aside. § 1240. The same subject: When more than one executor is named in will. § 1241. Powers in trust do not devolve to administrator with will annexed. § 1242. Right of administrator with will annexed to sell property: Where direction in will is imperative. § 1243. The same subject: Where will gives discretionary power of sale. $1244. The same subject: Statutory regulations. § 1245. Effect of unauthorized sale of land by administrator with will annexed. § 1227. When Administrator With Will Annexed May Be Appointed. A decedent may leave a will wherein no executor is named, or he may appoint an executor therein but the appointment fail because of the appointee's death before that of the testator or before he has proved the will, or because the appointee refuses to act, or because the appointee is incompetent to act. In such cases the decedent dies quasi intestate. Also the executor named in the will may prove the same but die intestate before he has completed the administration of the testator's estate. In all such cases letters of administration must be granted to one who is properly designated as the administrator with the will annexed. In the instance last mentioned, the one who completes the administration is known as an administrator de bonis non. The office of administrator with the will annexed is practically the same as that of executor, the proof of the will in all cases being the same.1 1 Williams Exrs. (3d Am. ed.) *380; Stebbins v. Lathrop, 4 Pick. (21 Mass.) 33; Leavitt v. Leavitt, 65 N. H. 102, 18 Atl. 920; Elliott v. Blue, 74 W. Va. 209, 81 S. E. 982. Where an executor has become incapacitated through illness, a grant of administration with the will annexed may be made to a residuary legatee for life for the use and benefit of the executor until his recovery.-In re Ponsonby (1895), P. D. 287. If the will is denied probate, the court can not appoint an administrator with the will annexed. Estate of Bonyssou, 1 Cal. App. 657, 658, 82 Pac. 1066. Under the Washington statute providing that the title to lands of a decedent shall vest immediately at his death in his heirs or devisees subject to his debts, but that the real estate shall not be liable for the decedent's debts unless administration is had within six years, it was held unnecessary to administer the estate of a nonresident decedent more than six years after his death, where he left no personal property, but only real estate, within the state of Washington.-Murphy v. Murphy, 42 Wash. 142, 84 Pac. 646. In Louisiana he is called a dative executor and is appointed in case the executors named in the will have failed to qualify and the interest of the legatees require a representative.2 The appointment of an administrator with the will annexed is not necessarily void merely because an executor had previously been qualified and letters testamentary had issued to him. There is no inconsistency between the two representations of the same estate, one succeeding the other, though the first representative be not yet dead. But where it is shown that the previous executor had not vacated nor been removed from the office when the administrator with the will annexed was appointed, then the latter appointment is void.3 Where the administration of an estate has become vacant by reason of the revocation of letters testamentary and the estate is not fully administered, it is the duty of the court to appoint an administrator with the will annexed, and the fact that an heir has parted with his interest under the will is not a ground for the court to refuse to make such appointment.* § 1228. Statutes Providing That Letters of Administration With Will Annexed Shall Issue as in Case of Intestacy. The statutes of the various states usually provide in what instances letters of administration with the will annexed shall issue, and the particular statute of each jurisdiction must be consulted. For example, the code in 2 Succession of Rice, 21 La. Ann. 614. 8 Printup v. Patton, 91 Ga. 422, 18 S. E. 311, 4 Estate of Pina, 112 Cal. 14, 16, 44 Pac. 332; Estate of Strong, 119 Cal. 663, 667, 51 Pac. 1078. |