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lify any of his expressions, nor to cause intestacy and the disinheritance of the natural objects of his bounty. Nevertheless, if the meaning of the will is apparent from the language, it cannot be departed from, even though it result in rendering the entire will invalid.
51. Renunciation of office by executors.
If a person named in a will as an executor thereof desires not to act as such, he cannot be compelled to accept a grant of letters testamentary from the court. If he wishes to renounce his appointment, he may do so by an instrument in writing at any time before letters are actually issued to him. After the issue of letters he cannot renounce, but may resign, as we shall see further on.
As no one can act as representative of the estate to whom letters have not been granted, it is manifestly necessary that such letters be promptly issued, to the end that the settlement of the state may be entered upon without undue delay. It is therefore incumbent upon the executor to make known his acceptance or refusal of the office at an early date. If he neither qualifies by making and filing his official oath of office, nor executes his renunciation of appointment, the court may declare him to be excluded and may appoint another in his stead.
When an executor by his acts manifests his intention to accept the office, he may lose his right to renounce and be compelled to receive letters testamentary. On the other hand, he may be permitted to retract his renunciation, if letters have not been issued to another in the meantime.
52. Disqualification for office of executor.
The laws of the various states differ as to what grounds shall disqualify a person from acting as an executor, but most of them agree that one is not competent to accept appointment who is, at the time of the probate, a minor, or who is legally unable to make a valid contract, or a non-resident alien, or who has been convicted of an infamous crime, i. e., a felon, or who is unfit to perform the duties of the office by reason of dishonesty, improvidence, and the like. A person may also be excluded who cannot read or write the English language. Formerly a married woman could not accept an appointment as executor, without the written consent of her husband, but now she is as competent as though she were a single woman.
The non-resident alienage which disqualifies refers to persons living outside the state, who were born in a foreign country, and have never been naturalized under our laws. Both nonresidence and alienage must concur, for neither by itself is a bar to office; that is, an unnaturalized foreigner residing in the state as well as a nonresident citizen is each entitled to letters, unless disqualified for other cause. Intemperance, when carried so far as to amount to what is called habitual drunkenness, will usually be held a ground of disqualification.
The infamous crime referred to must be one involving capital punishment, or imprisonment in a state prison, as the result of a conviction in the state.
The dishonesty which disqualifies is that which relates to money and property, that is, such as would be involved in an effort to obtain the property of another by theft or fraud, or the issue of fraudulent checks, for example. Mere dishonest conduct or falsehood is not enough.
Want of care, judgment, or understanding in the management of property would certainly be held to be such improvidence as to disqualify from office, but being in debt or even bankrupt would not. If any of the grounds of objection can be, and are, removed before the administration of the estate has been completed, letters may be granted to the person against whom such objection has been made, as, for example, if an infant has come of age, or an alien has been naturalized, and perhaps even if a criminal has been pardoned.
53. The issue of letters.
The executor having elected to accept the appointment to office, and no objection to his qualification having been successfully urged, he should sign, acknowledge, and file his oath with the probate court. Ordinarily he need not furnish a bond, but if his circumstances are such as not to afford adequate security to the persons interested in the estate, or if he be a resident of another state, he may be required to furnish a bond to protect the property which will be entrusted to his care.
In New York an executor, who is also appointed a trustee, must file a bond unless the testator directs otherwise. The court then issues to the executor the letters testamentary to which he is entitled, signed by the probate judge, or by the clerk of the court, and sealed with its seal. This ceremony is entirely separate and distinct from that of admitting the will to probate, although depending upon it.
As we have already intimated, the executor derives his nomination, his instructions, and his title from the will, but his power to act depends upon the grant of authority by the probate court. The letters testamentary constitute that grant,
and are conclusive evidence thereof, until the probate is set aside or the letters revoked.
54. Qualification of testamentary trustees.
Although the testator may appoint the same persons to act as executors and trustees, the offices are distinct and have nothing in common. Their respective duties have already been pointed out. So distinct are they that where the will discloses an intention to impress upon his executors an independent character, and impose upon them duties which do not pertain to their office as executors, the probate of the will does not necessarily make them trustees, unless they also manifest their acceptance of the trusts created, and qualify as such. Hence, a person may accept one office and disclaim the other. But ordinarily, where the will imposes certain trust duties upon the executor, which he is to perform in that capacity and not as the incumbent of a separate office, his receipt of letters testamentary will be presumed to be an acceptance of the trusts created. In such cases no separate letters are issued to him, no further oath is taken and no bond required. If he has been required to furnish security as an executor, it will apply to his acts as trustee.
Sometimes a testator appoints one person an executor and another a trustee, but even in such