If it be a woman, she is known as an "executrix," although the term is not to be found in the statutes.

In the great majority of cases the testator expressly names his executor, and when the will has been admitted to probate, and the qualification of the person named has not been challenged, as hereinafter explained, a certificate of authority will be issued to him as a matter of course.

Sometimes the testator will not do this, but, nevertheless, indicates by implication his intention that a particular person shall be entrusted with the administration of his estate. Such a one is known as an executor "by the tenor," and is entitled to act as though expressly designated. So, too, the testator sometimes by his will gives a third person the power to name an executor. Thus, in one case the testator named his wife as executrix and then requested "that such male friend as she may desire shall be appointed with her as co-executor." Instances of this are frequently seen where the testator provides that in the case of the death of any of his executors, a successor may be appointed by the survivors. The testator is not limited as to the number of executors he may appoint; and he may confine the duties of each to a particular property, or to property in a designated locality, or to succeed each other, or for a definite period of time.

Until comparatively recent years a corporation could not be appointed to act as an executor. But now the statutes of some states, notably New York, have authorized certain banking and trust companies to accept such an appointment. Corporations generally are still incompetent, however, unless they fall within those special statutes, or are expressly authorized so to act by their own charters.

38. Testamentary trustees and their selection.

The difference between an executor and a testamentary trustee is more clearly seen from a consideration of the duties of the respective offices. They are wholly separate and distinct. The duty of an executor is to gather in the assets wherever they may be, to cause the lawful debts and charges against the estate to be ascertained and paid, and to satisfy and discharge all legacies. On the other hand, it is the duty of the trustee to receive from the executor-very frequently himself-the trust fund created by the will, to invest and manage it, collect the income and apply it as required by the instrument appointing him.

Some years ago a case arose in New York which well illustrates what has just been said. By the will, the testator bequeathed certain mortgages directly to his trustees for purposes

which he specified. The executor, instead of handing over these mortgages to the trustees as he should have done, proceeded to call them in and invest the proceeds in other mortgages. These latter the trustees refused to receive as a part of the trust fund. In this refusal they were sustained by the court, which held that the title to the mortgages passed under the will directly to the trustees; that it was the executor's duty to possess himself of them and turn them over instead of collecting them, and that the trustees could not be required to accept the new investments in lieu of those bequeathed to them by the will.

Indeed, the distinction between an executor and a trustee is so well recognized in law that a release of one as executor does not discharge him as trustee, and in case he be removed as executor, he still retains his office as trustee.

It must be borne in mind that the trustees we are considering are those expressly appointed by the testator for the purpose of performing some trust which is recognized as lawful and enforcible, and not those implied from the office. Thus, an executor is regarded as a trustee for the benefit of creditors and legatees, but of a kind not now being referred to.

In making a selection of a proper person to act in this important and confidential capacity, no suggestion can be made as between individuals.

Some trusts are more difficult of execution than others, and if a choice has been centered upon one who possesses the confidence of the testator, and a degree of judgment and business experience proportioned to the task with which he will be confronted, nothing further need be said. But sometimes the choice lies between an individual and a corporation, in which case the question of probabilities plays an important part. What the testator wants is a trustee who will bring to bear the greatest possible efficiency and experience in the management of the estate, coupled with the least risk of loss and expense, having regard to the nature and condition of the property of which it is composed.

It is simply a question whether a banking or trust corporation, a part of whose business it is to conduct the management of estates, is likely to possess the greater experience, and to make use of it with less thought of personal gain; whether it is not likely to employ the best advice obtainable, and hence be forearmed against loss and undue expense. To repeat, it is very much a question of probabilities.

39. Testamentary guardians.

If the testator has a minor child, he may, under certain circumstances, appoint by his will a

person to act as guardian for such child during its minority, and to receive and manage any legacy or trust fund bequeathed to or for the benefit of such minor. Most of the states have provided by statute for such an appointment. Neither parent

has such right while the other is living; although either may appoint the other as guardian. No one may name a guardian for the child of another, even if that child be the testator's own grandchild.

No appointment of a person as testamentary guardian is complete unless and until the will containing the nomination is admitted to probate. When this is done, the guardian should then file his oath, upon which letters of guardianship will be issued to him. As in the case of an executor, no bond or security is required of him, unless it is made to appear, on application to the court, that the safety of the infant's property demands it.

The appointee may be designated as the guardian of the person of the infant, of his property, or of both. In respect to the infant's person, he has the right to his custody and control and to take charge of his education. In respect to the infant's property he has in hand the management and investment thereof, and is charged with the duty of providing for the infant's support out of the income arising therefrom, and may enforce the infant's rights by action.