$1364. Bond to pay all debts and legacies. 1365. Letters testamentary or of administration. §1366. Will of testator can not override statute requiring letters. $1367. Decree of probate court not subject to collateral attack. §1342. Objection May Be Made to the Granting of Letters on the Ground That Applicant Is Disqualified. Where one dies intestate leaving an estate which demands administration, letters of administration may be granted. If the decedent leaves a will in which no executor is named or the one named is unwilling to or incapable of acting, letters of administration with the will annexed may be granted. If the one nominated in the will and appointed executor die intestate, an administrator de bonis non may be appointed. In all such cases the question which first arises is as to who is first entitled to be granted letters. These matters have been hereinbefore treated.1 An executor derives his authority from being named as such by the testator in his will.2 If a will is invalid and is rejected for probate, the appointment of the executor falls with it. Letters testamentary may issue only as the result of the will being accepted for probate. In order that the will be rejected, its invalidity must be shown; but the qualification of the applicant for letters may be put in issue in all cases. 1 As to order in which persons are entitled to administer estates of intestates, see §§ 1197, 1198. As to who is entitled to letters of administration with the will annexed, see §§ 1228-1236. As to who is entitled to letters of administration de bonis non, see 1248-1250. As to who is entitled to letters of administration durante minore ætate, see § 1279. As to letters of administration durante absentia, see §§ 1281, 1282. 2 See § 1216. 8 Estate of Warfield, 22 Cal. 51, 66, 83 Am. Dec. 49; Estate of Richardson, 120 Cal. 344, 346, 52 Pac. 832. Whenever application is made for either letters testamentary or of administration, any person interested in the estate may object to the granting of letters to the petitioner on the ground that he is not competent to act. In his behalf any of the matters specified by statute as a disqualification to so act, either as executor or administrator as the case may be, may be urged against the appointment. The usual method of procedure is for the interested party to file objections setting forth the disqualifications of the applicant which, if denied, are determined as matters of fact upon evidence produced in court. § 1343. Legality of Acts of Administrator Prior to Appointment. The authority of an administrator is based upon his appointment as such by the court and until his appointment and qualification, he has no authority to perform any of the acts pertaining to the office. However, the authority of an administrator, when appointed, by relation dates back to the date of the death of the intestate so that acts which he may have performed in the capacity of administrator prior to his appointment are thereby legalized, and his authority over the estate as administrator becomes effective as of the date of the death of the decedent. This gives the administrator, upon his ap 4 As to matters which disqualify one from acting as executor or administrator, see §§ 1194-1214. 5 Whitehead v. Taylor, 10 Ad. & El. 210; Otto v. Regina MusicBox Co., 87 Fed. 510; Dawes v. Boylston, 9 Mass. 337, 6 Am. Dec. 72; Shirley v. Healds, 34 N. H. 407. • Whitehall v. Squire, 1 Salk. 296; Goods of Pryse, (1904) P. 301; Christie v. Clark, 27 U. C. Q. B. 21; Hodges v. Kimball, 91 Fed. 845, 34 C. C. A. 103; Blackman v. Baxter etc. Co., 125 Iowa 118. 2 Ann. Cas. 707, 70 L. R. A. 250, 100 N. W. 75; Brown V. Howell, 66 N. J. L. 25, 48 Atl. pointment by court, the right to prosecute any action arising in favor of the estate after the death of the intestate and prior to his appointment, the same as he can prosecute actions for matters arising before the intestate's death." One who is entitled to letters of administration of the estate of a decedent is justified, prior to his appointment, to take such steps as may be necessary to preserve the estate; but his subsequent appointment will legalize only those acts which were done in the interest of the estate and for its benefit. But although the rights of an administrator may date back to the time of the death of the decedent, the rule will not render unlawful the possession of property taken by the heirs of the decedent in order to conserve it until the appointment of an administrator.10 $1344. Powers of Executor Before Probate: Common Law Rule. The common law rule once prevailing, although now generally changed by statute, was that an executor might perform almost all acts incident to the office prior to the admission of the will to probate and his appointment by the court. He could not, however, maintain an action as executor until after his appointment and qualification as such, for when he brought suit in his representative 1020; Costo v. Murray, 47 Ore. 57, 81 Pac. 388, 883; Martin v. Fowler, 51 S. C. 164, 28 S. E. 312. 7 Tharpe v. Stallwood, 5 M. & G. 760, 7 Jur. 492; Jahns v. Nolting, 29 Cal. 507; Rockwell v. Saunders, 19 Barb. (N. Y.) 473; Hayden v. Roe, 66 Wis. 288, 28 N. W. 186. 8 Taylor v. Woburn, 130 Mass. 494. capacity he was required, when he declared, to make profert of his letters testamentary.12 Although he had constructive possession and sued in his individual capacity, yet generally at the trial he would be required to prove his authority as executor, which he could not do unless the will had been admitted to probate.13 Yet an executor before his appointment could commence an action and could thereafter prosecute it if, when he was required to declare, probate of the will had been had.11 14 At common law the one named as executor in the will of a decedent could, prior to his appointment by the court, take possession of the decedent's personalty, sell and dispose of it, pay the debts of the estate, receive or release rents owing to it, and distrain for rent due to the testator.15 Even though the executor should die after performing any of the above acts and prior to proving the will, his acts were valid.10 § 1345. The Same Subject: Rule Under Modern Statutes. The statutes in most jurisdictions have changed the common law rule as to the powers of executors prior to probate, and it is now generally provided that no executor named in a will shall, prior to the issuance of letters testamentary to him, have the right to dispose of any part of P. Wms. 753; Hill v. Tucker, 13 12 Comber's Case, 1 P. Wms. 768. 13 Blainfield v. March, 7 Mod. 141, by Holt, C. J. 14 Wills v. Rich, 2 Atk. 285; Mitchell v. Smart, 3 Atk. 606; Wankford v. Wankford, 1 Salk. 302, 303; Humphreys v. Ingledon, 1 P. Wms. 753; Humphreys v. Humphreys, 3 P. Wms. 351; Cocke v. Walters, 6 Ark. 404. 15 Godolph, pt. 2, ch. 20, §§ 1, 3; Wentw. Off. Exr. (14th ed.) 81; Coke Litt. 292b; Middleton's Case, 5 Coke 28a; Whitehead v. Taylor, 10 Ad. & El. 210; Wills v. Rich, 2 Atk. 286. 16 Brazier v. Hudson, 8 Sim. 67; Wankford v. Wankford, 1 Salk. 306. the estate of the testator except to pay funeral expenses;17 nor does an executor prior to his appointment have authority to interfere with the estate further than is necessary for its preservation.18 But where the property of the testator requires care for its preservation, it is not an unlawful interference with the assets of the estate for the executor named in the will, prior to probate, to take charge of the property and remove it to another place for safe-keeping.19 If an executor assents to a legacy before letters have issued to him, his assent will not pass the legal title nor bind the estate. 20 Such statutes are limitations upon the rights and powers of executors,21 and the rule of the common law will prevail unless abrogated by legislative enactment. For the executor derives his power 17 Wall v. Bissell, 125 U. S. 382, 389, 31 L. Ed. 772, 8 Sup. Ct. 979; Carpenter v. Going, 20 Ala. 587; Wood v. Cosby, 76 Ala. 557, 558; McDearmon v. Maxfield, 38 Ark. 631; Carter's Exrs. v. Carter, 10 B. Mon. (Ky.) 327; Gay v. Minot, 3 Cush. (Mass.) 352; Stagg v. Green, 47 Mo. 500; Kittredge v. Folsom, 8 N. H. 98, 111; Humbert v. Wurster, 22 Hun (N. Y.) 405; Hartnett v. Wandell, 60 N. Y. 346, 350, 19 Am. Rep. 194; Martin v. Peck, 2 Yerg. (Tenn.) 298; Monroe v. James, 4 Munf. (Va.) 194. "The will is the source of the executor's title and general powers. The letters testamentary, founded upon the probate of the will, do not create the executor, nor confer title upon him, but is the authentic evidence of the power conferred by the will and 18 Gall v. Stoll, 259 Ill, 174, 102 N. E. 225; Humbert v. Wurster, 22 Hun (N. Y.) 405; Claim of Flandrow, 92 N. Y. 256; Roberts v. Stuart, 80 Tex. 379, 15 S. W. 1108. 19 Dickinson v. Powers, 140 App. Div. 105, 125 N. Y. Supp. 949. 20 Gardner v. Gantt, 19 Ala. 666. 21 Humbert v. Wurster, 22 Hun (N. Y.) 405; Thomas v. Cameron, 16 Wend. (N. Y.) 579. |