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petitioner has not the prior right to letters. These issues must be met by proof, and regularly tried and decided; but contests of this character are not very frequent, and in most cases the grant of administration is a more or less perfunctory matter.
86. Qualification of administrator; removal from
The grounds upon which an administrator may be disqualified from appointment are the same as those in case of an executor (see ante $ 52). And the same may be said respecting the causes for his removal and the revocation of his letters (see ante $ 57).
87. Vacancy in office of administrator.
We have already noticed the effect of a vacancy in the office of executor, and how it is filled by the appointment of an administrator with the will annexed. The same situation frequently occurs where the administrator of an intestate's estate dies, is removed, or becomes incapacitated, leaving the assets unadministered. In such case a successor is appointed by the Court and bears the title of administrator de bonis non; that is, administrator of goods not administered. He must qualify by the filing of his oath and official bond in the same way as an ordinary administrator, and his powers are co-extensive with those of his predecessor, including the continuance of any actions which the former administrator may have commenced, and the completion of any other unfinished business which confronts him upon his appointment.
88. Public administration.
Public administrators are those officials whose duty it is to administer the estates of all intestate persons, where no application for the appointment of an administrator has been made, to the end that the intestate's property may be preserved, against the appearance of the rightful claimants. In some of the counties of the state these officers exist by special appointment, while in others the duties of public administrator are performed by the county treasurer.
Their powers are twofold, namely, those which they possess generally by virtue of their office, and those which they acquire upon being appointed in a particular case.
Those which are attached to the office include the collection and taking possesson of the assets, the selling of perishable goods and the payment of funeral expenses. But if he is to pay debts and distribute the surplus, he must be armed with letters of administration.
When this has been done he acts by virtue of the letters, not of his office, and he has all the duties and obligations of an ordinary administrator. In New York County, in order that he may have immediate information respecting the deaths of intestates, it is made the duty of all keepers of hotels, boarding and lodging houses to report to him the names of strangers dying in their houses. Coroners must report their inquests, and undertakers their burials; and health officers must submit to him a statement of all effects of persons dying at quarantine. The powers of these officers in the County of New York are more or less precisely stated in the statute, but as they do not materially vary from those possessed by any other administrator, it seems hardly necessary to point them out. In other counties no such specification of authority is given, and they are treated as any other similar official.
ADMINISTRATION OF THE ESTATE
89. The qualified title of representatives.
Up to this point we have traced the various methods by which an estate, upon the death of its owner, can pass into the possession and control of his successors. We have seen that sometimes these successors are designated by the owner himself, as by his will, and sometimes by the statute where the owner omits to make any such designation, as in case of intestacy. We have also seen that while the title of these new owners has its inception from the death of the old, yet such title, and the possession and enjoyment of the property, and the right of disposition, are suspended, until the executor or administrator, as the case may be, has been appointed and he has done certain things with the property. And so we have now come to the most interesting part of our study, namely, an inquiry into what those certain things are that the executors and administrators have to do, and how they are done.
And first, we must see what kind of a title to the property the representatives possess, for in the execution of their duties they must perform many acts of ownership, and must assert and defend their title as against all hostile attacks. To enable them to do this, they must be clothed with some sort of title, which is superior at all events to the claims of all the world, except the legatees, heirs, and next of kin of the decedent.
The executors and administrators are commonly said to be the “representatives” of the decedent in respect to his personal property, the one by virtue of the will, and the other through the grant of letters by the probate court. In this sense they are vested with every power and authority, and possessed of every remedy which the decedent had when living, to enable them to perform their official duties. They stand in the shoes of their testator or intestate, and in this sense "represent" him. But they are far more than that. They are, in the eyes of the law, trustees for the benefit of those to whom the estate is ultimately to go. So much is this so that they are authorized to disaffirm and repudiate any act, transfer or agreement made by the decedent himself, which may have been in fraud of the rights of those persons.
Their title is not that full and complete owner