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A testator may appoint different executors in different countries in which his effects may lie, or he may appoint different executors as to different parts of his estate in the same country.19 And the appointment may be made conditional upon the happening or nonhappening of some contingency.20

§ 1221. Testator May Delegate to Another the Right to Appoint Executor.

Within the limits and the time allowed by law, a testator may commit the administration of his estate and the care of his property to such individuals or succession of individuals, selected by himself or to be designated by others, as he may desire. He may dispose of the whole estate and the naked custody and management of it for a limited period, and the disposal, whether for a temporary purpose or otherwise, may be, except as prohibited by statute, absolute or provisional and conditional, or as others designated by him may from time to time direct. It can not be controverted that a testator may delegate to another person the right to appoint his executor. It is a practice recognized by the common law, and is not violative of any principle of public policy.21 An executor is

131; Hartnett v. Wandell, 60 N. Y. 346, 19 Am. Rep. 194.

19 Goods of Green, 79 L. T. N. S. 738; Goods of Wallich, 3 Sw. & Tr. 423; Hunter v. Bryson, 5 Gill & J. (Md.) 483, 25 Am. Dec. 313.

20 In re Arbib (1891), 1 Ch. 601; Knox v. Newman, 44 N. J. Eq. 309, 15 Atl. 415.

21 In re Cringan, 1 Hagg. Ecc. 548; Goods of Ryder, 2 Sw. & Tr. 127; State v. Rogers, 1 Houst.

(Del.) 569; Kinney v. Keplinger, 172 Ill. 449, 50 N. E. 131; Wilson v. Curtis, 151 Ind. 471, 68 Am. St. Rep. 237, 51 N. E. 913; Brown v. Just, 118 Mich. 678, 77 N. W. 263; Hartnett v. Wandell, 60 N. Y. 346, 19 Am. Rep. 194.

Where the will provides that appointment to the office of executor in the case of a vacancy shall be subject to the approval of certain persons interested in the estate,

solely the creature of the testator, who has the power not only to name his executor directly in his will, but he may in his will delegate to another the right to appoint an executor after his death, the only requirement being, as in the case of the appointment of an executor, that the one who may make the appointment be identified.22

§ 1222. Right of One Named as Executor in Will, to the Appointment.

The appointment of an executor by a testator in his will is not absolute, since the right of the one named to act is restricted by statute,28 and such nomination can not be final, since the nominee may either accept the office or refuse to serve.24 But if the one named in the will as executor is qualified and willing to act, the court must appoint him to the office. If the nominee accepts the appointment under the will and does not waive his rights by failing to take the proper steps as required by statute for proving the will,25 the court must after proper proceedings appoint him to the office unless he be shown to be incompetent or disqualified for some legal cause. The testator has the right to select as executor of his last will any one whom he may desire, and the fitness of the one selected by the testator is not a matter which the court can investigate except in the cases where the law has specially so provided. If qualified and willing to act, the nominee of the testator must be appointed executor.26

the court can not arbitrarily make an appointment to fill such vacancy contrary to objections of an interested party.-Cole v. Watertown, 119 Wis. 133, 96 N. W. 538. 22 Bishop v. Bishop, 56 Conn. 208, 14 Atl. 808.

23 Matter of Avery, 45 Misc. Rep. (N. Y.) 529, 92 N. Y. Supp. 974. 24 See, ante, §§ 1216-1219. 25 See §§ 1189, 1196.

26 Kidd v. Bates, 120 Ala. 79, 74 Am. St. Rep. 17, 41 L. R. A. 154, 23 So. 735; In re Bauquier, 88 Cal.

It has, however, been held that where conditions after the death of the testator had so changed that, had he anticipated them, he unquestionably would have made a different choice, the court in its discretion could refuse to appoint the one named in the testator's will.27

§ 1223. Acceptance of Office by Executor Named in Will.

The fact that one is named in the will of a decedent as the executor thereof does not constitute the nominee executor, but he must accept the appointment. The testator's appointee may show his acceptance of the trust by offering the will for probate and proving it,28 or by assuming such charge of the affairs of the estate as to show his acceptance.29 Taking the oath of office is a clear acceptance,30 and the performance by the one named in the will as executor of any acts which would render one liable as an executor de son tort, are sufficient to show an intention to take upon himself the executorship.31

A trustee of an express trust under a will is distinct from the executor, and it has been held that a trustee of real estate, appointed by will, may execute the trust at any time, although he may have previously refused to

302, 26 Pac. 178, 532; Farmers' L & T. Co. v. Smith, 74 Conn. 625, 51 Atl. 609; Clark v. Patterson, 214 Ill. 533, 105 Am. St. Rep. 127, 73 N. E. 806; Holladay v. Holladay, 16 Ore. 147, 19 Pac. 81; Worthington v. Worthington's Exr., 18 Ky. L. 62, 35 S. W. 113; Saxe v. Saxe, 119 Wis. 557, 97 N. W. 187; Rice V. Tilton, 13 Wyo. 420, 80 Pac. 828.

27 In re Van Vleck's Estate, 123 Iowa 89, 98 N. W. 557.

28 Hanson v. Worthington, 12 Md. 418; Worth v. M'Aden, 21 N. C. 199.

29 Goods of Coates, 78 L. T. N. S. 820.

30 Bowman's Appeal, 62 Pa. St. 166.

31 Williams Exrs. (3d Am. ed.) **228, 229.

accept the trust, provided he has not released the estate or executed a deed of disclaimer. 32

§ 1224. Renunciation of Office by Executor Named in Will.

The one nominated as executor in the testator's will can not be compelled to accept the office.33 He may refuse to accept, but such refusal can not be in part only, it must be of the whole office or not at all.34 The early rule of the common law was that where one of several named as executors in a will renounced the office, such renunciation was not binding on him so long as one or more of his co-executors continued in office, but he could thereafter come in and administer, and if he survived the acting executor or his removal, he could retract his renunciation and assume the executorship at any time before letters of administration with the will annexed were granted. This rule was to an extent changed by the statute of 20 and 21 Vict., ch. 77, § 79, and the general rule now is that if one of several named as executors in the will renounces the office and the others are appointed, the jurisdiction of the probate court for the appointment of executors named in the will is thereby exhausted and a subsequent petition by the executor who renounced his office can not be entertained.35

One named as executor who has renounced the office, as a general rule may retract his renunciation at any

32 Judson v. Gibbons, 5 Wend. (N. Y.) 224.

As to the distinction between an executor as such and a trustee,. see Toronto General Trust Co. v. Chicago, B. & Q. R. Co., 123 N. Y. 37, 25 N. E. 198; Garner v. Dowling, 11 Heisk. (58 Tenn.) 48.

33 See §§ 1188, 1189, as to duty of producing the will for probate and time within which it should be so produced.

34 Paule v. Moodie, 2 Roll. 132. 35 Briggs v. Probate Court of Westerly, 23 R. I. 125, 50 Atl. 335.

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time before letters have been granted to co-executors or letters of administration with the will annexed have been issued; or where one of several co-executors has renounced and letters have issued to others, such executor may after the death of all the executors retract his renunciation; but where the sole executor or all the executors named have renounced and letters of administration with the will annexed have issued, no renunciation will be allowed during the life of the administrator.3 But even though one named as executor desires to retract his renunciation before letters have been granted to any one, it is said that good cause for such renunciation. should be shown.37 A retraction has been held properly denied where the estate was large and complicated and the one requesting the retraction was aged and infirm.38 § 1225. After Acceptance, Executor Can Not Resign Except With Sanction of Court.

At common law an executor or administrator, having once entered upon the performance of the duties of his office, had no right at his own desire and for his own convenience to renounce the trust.39 In most jurisdictions.

36 Taylor v. Tibbatts, 13 B. Mon. (52 Ky.) 177; Robertson v. McGeoch, 11 Paige (N. Y.) 640; Staunton v. Parker, 19 Hun (N. Y.) 60; Codding v. Newman, 3 T. & C. (N. Y.) 364; affirmed 63 N. Y. 639; Davis v. Inscoe, 84 N. C. 396.

37 Goods of Gill, L. R. 3 P. & D. 113; Goods of Morant, L. R. 3 P. & D. 151; Estate of Baier, 2 How. Pr. N. S. (N. Y.) 323.

38 Matter of Cornell, 17 Misc. Rep. 468, 41 N. Y. Supp. 255. III Com. on Wills-5

39 Parten's Case, 1 Mod. 213; In re Stevens (Cooke v. Stevens) (1897), 1 Ch. 422; In re Dallas (1904), 2 Ch. 385; Driver v. Riddle, 8 Port. (Ala.) 343; Haynes v. Meeks, 10 Cal. 110; Hanson v. Worthington, 12 Md. 418; Sears v. Dillingham, 12 Mass. 358; Rumrill v. First Nat. Bank, 28 Minn. 202, 9 N. W. 202; Flinn v. Chase, 4 Denio (N. Y.) 85; McIntyre v. Proctor, 145 N. C. 288, 13 L. R. A. (N. S.) 438, 59 S. E. 39; Ramp v.

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