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is allowed, administration has been granted to the nominee of the assignee of the sole beneficiary under the will;13 and where the residuary legatee is a corporation aggregate, administration with the will annexed has been granted to one of their own number nominated by the corporation.**

§ 1234. As to Right of Trustee Under Will, to Letters.

Where the residuary legatee is entitled to letters of administration with the will annexed in preference to the next of kin, the authorities are conflicting as to whether this right of preference extends to such a legatee who takes the property only in trust for the benefit of another. The rule giving a prior right to letters to the residuary legatee has been extended so as to confer the right of priority on such a legatee who is a trustee only.45 Thus if a testator disposes of his property in trust for the benefit of his wife and children, the court may grant letters to the trustee in preference to the widow or children, as following the intention of the testator.46 There is authority, however, for holding that one who receives a legacy in trust only has no more right of preference than the agent of a creditor or a stranger.47 And it has been said that the trustee of a fund for the

43 In re Estate of Campion, (1900) P. 13.

44 Will of Kirkpatrick, 22 N. J. Eq. 463.

Compare: Estate of Owens, 30 Utah 351, 85 Pac. 277.

Contra: Estate of Richardson, 120 Cal. 344, 52 Pac. 832.

45 Hutchinson v. Lambert, 3 Addams 27; Goods of Goodyar, 1 Sw. III Com. on Wills-6

&

Tr. 127; Goods of Lalor, 85 L. T. N. S. 643.

46 Goods of Cosnahan, L. R. 1 P. & D. 183.

47 Girod's Heirs & Legatees v. Girod's Exrs., 18 La. 394 (where a mayor of a city received a legacy as trustee, and it was held that he was not entitled to preference as a legatee or creditor).

purpose of paying the same over to another is not entitled to administration with the will annexed to the same extent as if he were the owner of the fund, the reason being that he is not really interested in the residue of the estate. 48

§ 1235. When Guardian of an Infant Beneficiary Is Preferred.

If a beneficiary under the will would be entitled to letters of administration with the will annexed except for the fact of infancy, letters may be granted to his guardian.19 But the claim of the guardian of an infant beneficiary is secondary to the claim of a qualified adult legatee entitled to equal preference with the infant,50 and although the guardian of an infant beneficiary may have preference, yet this does not give the guardian the right to confer on a third person any priority by reason of nominating him to act.51 And it has been held that where a trust company is the guardian of an infant who is the next of kin and a general legatee, the trust company is not entitled as such guardian to letters of administration with the will annexed.52

48 Estate of Thompson, 33 Barb. (N. Y.) 334.

49 Goods of See, L. R. 4 Pro. Div. 86; Estate of Turner, 143 Cal. 438, 77 Pac. 144; In re Lasak's Estate, 55 Hun 610, 8 N. Y. Supp. 740; Matter of Goggin, 43 Misc. Rep. (N. Y.) 233, 88 N. Y. Supp. 557; Woodruff v. Snoover, (N. J.) 45 Atl. 980.

50 Estate of Turner, 143 Cal. 438, 77 Pac. 144; Estate of Morgan, 8 N. Y. Civ. Pro. 77; Quintard v. Morgan, 4 Dem. Surr. (N. Y.) 168.

No guardian of an infant who is not a residuary or specific legatee is entitled to letters of administration with the will annexed in preference to the widow of the testator.-Cluett v. Mattice, 43 Barb. (N. Y.) 417.

51 Estate of Woods, 97 Cal. 428, 32 Pac. 516; Estate of Sprague, 125 Mich. 357, 364, 84 N. W. 293; Estate of Nickals, 21 Nev. 462, 465, 4 Pac. 250.

52 In re Milhau's Estate, 28 Misc. Rep. 366, 59 N. Y. Supp. 910.

§ 1236. Executor Named in Will May Be Granted Administration With Will Annexed.

The fact that one has been named as executor or one of several executors in the will of a testator, does not necassarily prevent him from being appointed administrator with the will annexed. Where the appointment by will was rendered invalid by reason of the fact that the executor named was one of the attesting witnesses, he may nevertheless be appointed administrator with the will annexed.53 And it has been held that where one declined to act as sole executrix, she might be appointed administratrix with the will annexed, or might act jointly with another administrator. The acceptance of the appointment by the court would not make her executrix in fact, but would rather be evidence of her renunciation."

§ 1237. When Application for Appointment Must Be Made.

The statute usually fixes the time within which application for letters with the will annexed must be made. The statutes of the particular jurisdiction must be consulted. Where the application is not made within the time fixed, even the surviving husband or wife or the distributees who may be entitled to preference under the statute, will forfeit that right by delay.55

53 Murphy v. Murphy, 24 Mo. 526.

54 Briscoe's Devisees v. Wickliffe, 6 Dana (36 Ky.) 157.

55 Jordan v. Ball, 44 Miss. 194. As to length of time after death

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

As to failure of appointee to apply for letters of administration within time specified by statute, see § 1196.

§ 1238. Powers and Duties of Administrator With Will An

nexed.

The general rule is that an administrator with the will annexed occupies the same relation to the estate, except as to matters involving personal confidence, that an executor would have occupied had he been named in and qualified under the will.56 The duties and powers which result from the nature of the office of executor, devolve upon the administrator with the will annexed; he takes those powers inherent to such office.57 He is required to settle the estate in the manner and upon the terms prescribed in the will. Where there is no will, an administrator is appointed who settles the estate in a manner prescribed by statute.58

An administrator with the will annexed may sue and be sued.59 Any objection to the maintenance of an action by him must be taken either by demurrer or by answer. Where all of the facts appear in the complaint, the defendant must demur; where it is doubtful whether all the facts are disclosed in the complaint, the defendant must allege in his answer that the plaintiff has not legal capacity to sue. The failure either to demur or answer precludes the defendant from raising the question at

56 Hamilton v. Williams, 133 Ky. 558, 118 S. W. 358; M'Call v. Peachy's Admr., 3 Munf. (Va.) 288.

57 McIntire v. McIntire, 14 App. Cas. (D. C.) 337; Penn v. Fogler, 182 Ill. 76, 55 N. E. 192; Davis v. Hoover, 112 Ind. 423, 14 N. E. 468; Cohea v. Johnson, 69 Miss. 46, 13 So. 40; Bain v. Matteson, 54 N. Y.

663; Belcher v. Branch, 11 R. I. 226; Estate of Besley, 18 Wis. 451. 58 Hamilton v. Williams, 133 Ky. 558, 118 S. W. 358.

59 Syme v. Broughton, 86 N. C. 153; Varnum v. Taylor, 59 Hun 554, 14 N. Y. Supp. 242; Sears v. Scranton Trust Co., 228 Pa. St. 126, 20 Ann. Cas. 1145, 77 Atl. 423.

the trial. In an early California case it was held, however, that an administrator with the will annexed could not sue where he had but an equitable and not a legal title. In some jurisdictions the administrator with the will annexed is, for every purpose connected with the execution of the will, clothed by statute with all the rights of the executor and invested therefore with his capacity to sue.62

§ 1239. The Same Subject: Powers Cease if Will Be Set Aside.

Inasmuch as there is no question that the office of executor ceases upon the setting aside of the will under which he acts, it must follow that the office of an administrator with the will annexed must cease under the same circumstances. Therefore letters granted to him may be revoked when the will has been set aside.63

§ 1240. The Same Subject: When More Than One Executor Is Named in Will.

The fact that the testator grants authority to three executors or any two of them to execute the provisions of his will, is not potential in considering the question of the power of the administrator with the will annexed to execute the provisions of the will in those cases where the executors are empowered to act by virtue of their official character. The administrator with the will

60 DeHaven v. DeHaven, 104 Ky. 41, 46 S. W. 215, 47 S. W. 597; Varnum v. Taylor, 59 Hun 554, 14 N. Y. Supp. 242.

61 O'Connell v. Dougherty, 32 Cal. 458.

62 Sears v. Scranton Trust Co., 228 Pa. 126, 20 Ann. Cas. 1145, 17

Atl. 423; Cornell v. Green, 10 Serg. & R. (Pa.) 14; Scott v. Monks, 16 R. I. 225, 14 Atl. 860.

63 Hamilton v. Williams, 133 Ky. 558, 118 S. W. 358; Smith v. Stockridge, 39 Md. 640; Kilton v. Anderson, 18 R. I. 136, 49 Am. St. Rep. 751, 25 Atl. 907.

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