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§ 1206. Want of Understanding as a Disqualification.

As a general rule, illiteracy does not disqualify one from being appointed executor or administrator; a good mind and sound judgment, a knowledge of values of property and the practical business transactions of life, are sufficient.92 By statute it is sometimes provided that where a person otherwise entitled to letters is unable to read or write the English language, the court in its discretion may decline to appoint such person; and the refusal to appoint a widow who was not only unable to read or write, but who could not count money, has been upheld. Under other statutes a person is incompetent to be appointed executor or administrator who can neither read nor write and who has no experience in keeping accounts or in settling estates.94

Improvidence and lack of understanding, in order to disqualify one from acting as executor or administrator, must amount to a lack of intelligence.95 Under a statute making a want of understanding a disqualification, the fact that the applicant was sixty-nine years of age and could neither read, write, nor speak English, was held not to show a want of understanding within the purview of the statute, although it did show a condition which would render it difficult for the applicant to properly perform the duties of the office, if in fact they did not! render it impossible.96 Under the same statute it was held that the fact that the applicant was a Chinaman who could not speak the English language and who was not

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

93 Matter of Haley, 21 Misc. Rep. (N. Y.) 777, 49 N. Y. Supp. 397.

94 Stephenson v. Stephenson, 49 N. C. 472.

95 Matter of Manley, 12 Misc. Rep. 472, 34 N. Y. Supp. 258.

96 Estate of Pacheco, 23 Cal. 476.

instructed in the constitution of the state, did not show a lack of understanding which precluded him from being appointed administrator." Nor does a want of business experience98 nor ignorance of legal rights9 amount to a want of understanding.

§ 1207. Drunkenness as a Disqualification.

In order to declare a person incompetent to administer an estate by reason of drunkenness, which in some jurisdictions is made a disqualification by statute,1 the proof of intemperance must be such as would warrant the person being declared an actual habitual drunkard by a jury. It is not a question as to whether one has been or is addicted to the use of intoxicating liquor. Drunkenness which disqualifies one from acting as executor or administrator must be habitual and such as to render the person incompetent to execute the duties of the office.3 The drunkenness which disqualifies is that excessive, inveterate and continued use of intoxicants to such an extent as to render the person an unsafe agent to entrust with the care of property or the transaction of business.*

97 In re Li Po Tai, 108 Cal. 484, 41 Pac. 486.

98 Smith's Appeal, 61 Conn. 420, 16 L. R. A. 538, 24 Atl. 273.

99 Shilton's Estate, Tuck. (N. Y.) 73.

1 Matter of Manley, 12 Misc. Rep. (N. Y.) 472, 34 N. Y. Supp. 258; Cal. Code Civ. Pro., §§ 1350, 1369.

The fact that one has been adjudged an habitual drunkard has been held no disqualification in Pennsylvania.-Imhoff v. Witmer's Admr., 31 Pa. St. 243.

2 Elmer v. Kechele, 1 Redf. Surr. (N. Y.) 472, 473.

8 Matter of Reichert, 34 Misc. Rep. (N. Y.) 288, 69 N. Y. Supp. 644.

4 Root v. Davis, 10 Mont. 228, 25 Pac. 105.

The Court, in Root v. Davis, 10 Mont. 228, 25 Pac. 105, speaking of the habit of using intoxicating liquor, says: "However reprehensible that habit may be as regarded from a moral point of view, it is not within the province of the court to deny letters of ad

§ 1208. Gross Immorality as a Disqualification.

At common law neither vice, dishonesty, nor any degree of moral delinquency disqualified one from being an executor or administrator.5 Yet courts have refused to appoint as administrator a person who for years had done nothing for his own support, but had lived illicitly with the deceased and subsisted on her immoral gains." And where a man, separated from his wife by agreement, lived in meretricious relationship with another woman whom he named in his last will as the executrix thereof, and it appeared after his death that such nominee had no interest under the will, that she was unfriendly to the

ministration to an applicant on the ground of mere use of intoxicants. The drunkenness contemplated by this statute, undoubtedly, is that excessive, inveterate, and continued use of intoxicants, to such an extent as to render the subject of the habit an unsafe agent to intrust with the care of property or the transaction of business. . . . It is undoubtedly easier to prove the fact, and the disqualifying effect, of drunkenness, than to define the degree of intemperance necessary to produce incompetency. The vital question in the investigation of this objection is whether, or not, the applicant for letters is incompetent by reason of the inveterate use of intoxicants, and not whether he may, or may not, have used the same to some extent."

5 Goods of Samson, L. R. 3 P. & D. 48; Kidd v. Bates, 120 Ala. 79, 74 Am. St. Rep. 17, 41 L. R. A. 154,

23 So. 735; Smith's Appeal, 61 Conn. 420, 16 L. R. A. 538, 24 Atl. 273; Coope v. Lowerre, 1 Barb. Ch. (N. Y.) 45; Saxe v. Saxe, 119 Wis. 557, 97 N. W. 187.

The fact that the wife had contracted a bigamous marriage and had continued to live in adulterous and criminal relation for fifteen years, having a child born of such illegal union, held that such conduct did not deprive her of the right to letters of administration of the estate of her legitimate husband.-Estate of Newman, 124 Cal. 688, 45 L. R. A. 780, 57 Pac. 686.

"Moral fitness of a person appointed executor by will can not be inquired into by the court to which he applies for permission to qualify."-Berry v. Hamilton, 12 B. Mon. (51 Ky.) 191, 54 Am. Dec. 515, quoted in Saxe v. Saxe, 119 Wis. 557, 97 N. W. 187.

6 Estate of Plaisance, Myr. Pro. (Cal.) 117.

surviving wife who had become insane, and that the estate was insufficient to pay the decedent's debts, the court held such nominee incompetent and letters were granted as if an executrix had not been named."

§ 1209. Improvidence as a Disqualification.

Improvidence has been defined as "a want of care or foresight in the management of property." In most jurisdictions, by statute, improvidence disqualifies one from acting as executor or administrator, the question being the degree of improvidence necessary to disqualify. The symptoms of improvidence are carelessness, indifference, prodigality, wastefulness or negligence in reference to the care, management and preservation of property. The improvidence contemplated by such statutes is such want of care and foresight in the management of property as would render the estate of the decedent unsafe and liable to be lost or diminished in value.10

Improvidence means a lack of care and foresight, of forehandedness, of thrift, of business capacity. It does not mean that the capacity for care and foresight must needs to be proved by the accumulation of any considerable estate. Improvidence means only that probable lack of care and foresight in the management of the assets of the estate as would endanger their safety.11 The fact that one had lost his real estate and had borrowed money from his deceased brother does not justify

7 Deeble v. Alerton, 58 Colo. 166, 143 Pac. 1096.

8 Webster's Dict.; Coope v. Lowerre, 1 Barb. Ch. (N. Y.) 45.

9 Root v. Davis, 10 Mont. 228, 25 Pac. 105.

10 Coope v. Lowerre, 1 Barb. Ch. (N. Y.) 45.

11 Nichols v. Smith, 186 Ala. 587, 65 So. 30.

that he be adjudged improvident and therefore disqualified.12 The fact that one at the age of sixty-one years is not possessed of property of any considerable value and that for five years he has not supported his wife and children, does not tend to prove providence or improvidence.18 The statute does not comprehend moral delinquency, but has regard to the likelihood of the estate of a decedent being lost or squandered by an improvident person. And where one is addicted to gambling and betting and has no regular business except that of a gambler, this has been held presumptive evidence of such improvidence as to unfit him to perform the duties of executor or administrator.14

§ 1210. Insolvency or Poverty as a Disqualification.

Neither poverty nor insolvency was sufficient cause for the spiritual court to refuse to grant letters testamentary to the person named in the last will of a decedent as the executor thereof;15 and the bankruptcy of an executor after his appointment as such was not a ground to revoke his letters and grant administration to another.18 The court of chancery, however, assumed a new jurisdiction in that it would restrain an insolvent or bankrupt executor and appoint a receiver who, if

12 In re Brinckmann's Estate, 89 Misc. Rep. (N. Y.) 41, 152 N. Y. Supp. 542.

13 "He may have attended to all his transactions in reference to the management of property with the best of foresight, and 'hoarded his gain with a miser's care,' and yet not supported his wife and children. Nor does the fact that respondent has no estate, standing

alone, sustain the charge of improvidence."-Root v. Davis, 10 Mont. 228, 25 Pac. 105.

14 McMahon v. Harrison, 6 N. Y. 443.

15 Bacon's Abr., tit. Exrs. & Admrs. A., 6; Rex v. Sir Richard Raines, 1 Ld. Raym. 361; Hathornthwaite v. Russell, 2 Atk. 126.

16 Hills v. Mills, 1 Show. 203; s. c., 1 Salk. 36.

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