"administrator" are often used interchangeably, yet properly speaking the one nominated in the will and appointed to administer the estate is an "executor," while an "administrator" is the one appointed by the court to manage and distribute the estate of an intestate decedent. Where, for any reason, the one named in the will as executor is not appointed to execute the trust and another is appointed in his stead, such appointee is usually designated as "administrator with the will annexed," and not simply as "administrator."'8 In some jurisdictions it is provided by statute that the term "executor" includes administrator, and the term "administrator" includes executor, where the subject matter justifies such use." § 1192. Legal Duties of Executors and Administrators Are the Same. Although in name there is a difference between an executor and an administrator, yet in fact and in law they are really the same, each having control of the same property and the distribution thereof.10 The former is named by fined to be "a person lawfully appointed to manage and settle the estate of a deceased person who has left no executor."-Smith v. Gentry, 16 Ga. 31. 8 Osborne v. Atkinson, 77 Kan. 435, 438, 94 Pac. 796. "The object in appointing an administrator is to have the estate of the intestate taken care of. Since the statute of distributions it in fact makes but little difference who is appointed administrator, so that he is a fit person and gives the bond required by law. Prior to that statute, as the admin- Utah.-Rev. Stat. 1898, § 2498. 10 Matter of Murphy, 14 N. Y. 557, 39 N. E. 691. the deceased to administer his estate, while the latter is a person provided by the statute to act in the event of intestacy or of the deceased not making a nomination, yet the duties of the two are the same.11 Both executors and administrators are officers of the court. They are to an extent officers of the law clothed with a trust to be performed under prescribed regulations.12 This is peculiarly true of an administrator pendente lite.18 An executor is not a public officer, but the office is one of private trust;14 and an executor is a trustee required to account for property coming into his hands.15 § 1193. Common Law Rule as to Who Could Act as Executors. The general rule is that all persons who are capable of making wills, and even others besides, are competent to 11 In re Maccaffil, 57 Misc. Rep. 264, 107 N. Y. Supp. 1115; Matter of Haughian, 37 Misc. Rep. (N. Y.) 457, 75 N. Y. Supp. 932. 12 Daviess County Bank & Trust Co. v. Wright, 129 Ky. 21, 17 L. R. A. (N. S.) 1122, 110 S. W. 361; Pace v. Smith, 57 Tex. 555. "It would tend to distract and embarrass these officers, if, in addition to the ordinary duties which the law imposes, of themselves often multiplied, arduous, and responsible, they are drawn into conflicts created by the interposition of creditors of legatees, and compelled to withhold payment of legacies, without suit; to suspend indefinitely the settlement of estates; to attend, perhaps, to numerous rival attachments; to answer interrogatories on oath, and to be put to trouble and expense for the benefit of third persons, no way connected with the estate, nor within the duties of their trust."-Shewell v. Keen, 2 Whart. (Pa.) 332, 30 Am. Dec. 256. 13 "Administrators pendente lite, therefore, are not such as by the law are entitled to administer. They are officers of the court, called into being to aid the courtin fact, to take the place of the court to conserve the estate in independent and disinterested hands pending litigation."-Davenport v. Davenport, 68 N. J. Eq. 611, 6 Ann. Cas. 261, 60 Atl. 379. 14 Ex parte Powell, 8 Rob. (La.) 95. 15 In re Folwell's Estate, 68 N. J. Eq. 728, 2 L. R. A. (N. S.) 1193, 62 Atl. 414. act as executors. 16 The rule may be stated that every person may be an executor except such as are expressly forbidden to so act.17 The principle of the early common law was that no restrictions should be placed upon the choice of the testator as to who should act as the executor of his will, even though the testator might nominate an unsuitable person, to the prejudice of creditors and legatees. The early rule of the common law was that the fact that the one nominated by the testator in his will to act as executor was an alien, infant, married woman, outlaw, or insolvent or bankrupt, did not disqualify such person from acting as executor. Idiots and lunatics, by the civil law as well as the common law, were incapable of acting as executors since they were not competent to exercise the duties of the trust, and incapable of determining whether or not they should undertake the execution of such duties,18 but this was practically the only disqualification in early times. § 1194. Statutory Changes as to Disqualifications of Executors. Whatever disqualifications now exist regarding the competency of executors to act as such have been imposed pointed executor, but since his duties pertain to the affairs of the entire kingdom so that he is presumed not to have the leisure to attend to private affairs of any particular person he may nominate another, whom he shall think proper to execute the trust in his stead.-Bacon Abr., tit. Exrs. & Admrs. A, 1. 17 Swinb., Wills, pt. 5, § 1, pl. 1. 18 Godolph, pt. 2, ch. 6, § 2; Ba by statute. Even under such statutory regulations the testator still has the right to determine who is most suitable among those legally qualified, and his selection is not to be lightly disregarded by the courts.19 The rule now generally prevails that courts have no discretion in respect to the issuance of letters testamentary to the persons nominated as executors in the will unless such persons are expressly disqualified or such discretion is vested by law in the court, and it can not reject a person appointed by will to act as executor except where the law expressly so provides.20 The evil of the common law intended to be remedied by statute was that persons were permitted to act as executors who were clearly unfit to serve as such except with undue advantage to themselves and consequent detriment to the estate. The purpose of these statutes was not to declare, except indirectly by the process of exclusion, who were competent to discharge the duties of the trust, since the common law declared all persons competent except lunatics and idiots, but to enumerate the causes which render such persons incompetent to act. The statutes in many jurisdictions provide who may not be appointed executor or administrator, but their provisions are directed against incompetency rather than the designation of those who are competent. We may take con's Abr., tit. Exrs. A, 5; Hills v. Mills, 1 Salk. 36. 19 "Courts will not undertake to make a better will nor name a better executor for the testator. They will not add disqualifications to those specified by the statute, nor disregard testator's wishes by too liberal an interpretation of the specific disqualifications.” — In re Leland's Will, 219 N. Y. 387, 114 N. E. 854. 20 Kidd v. Bates, 120 Ala. 79, 74 Am. St. Rep. 17, 41 L. R. A. 154, 23 So. 735; Estate of Bauquier, 88 Cal. 302, 308, 26 Pac. 178, 532; Estate of Richardson, 120 Cal. 344, 52 Pac. 832. the California code provisions as an example. Under these sections no person is competent to serve as an executor who, at the time the will is admitted to probate, is: (1) under the age of majority; (2) convicted of an infamous crime; (3) or adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity.21 These same disqualifications apply equally to the appointment of an administrator, with the added disqualification that no one can serve as administrator who is not a bona fide resident of the state.22 §1195. Competency of Appointee of Testator to Act as Executor. Old age or bodily infirmities, lack of business experience and capacity, or ignorance of the law, are not disqualifications; however, the test of incompetency should be applied with caution to cases where inability to intelligently discharge the duties of the trust arises from bodily diseases resulting in permanent impairment of the mental and physical faculties. Letters testamentary should not be granted to one who is unable by reason of an incurable bodily disease to understand the duties of the trust.23 Any person nominated by the testator in his last will to act as executor thereof is deemed competent unless he is expressly declared incompetent by statute. The court has no discretion in the matter, but it is its duty to grant letters testamentary to every person named as an exec utor in the will upon proper application therefor unless 21 Cal. Code Civ. Pro., § 1350. 22 Cal. Code Civ. Pro., § 1369. Similar statutes exist in all the western states. 23 In re Leland's Will, 219 N. Y. 387, 114 N. E. 854, affirming 175 App. Div. 62, 161 N. Y. Supp. 316. |