#### Saxe and others, Appellants, vs. Saxe and another, Respondents.

*October 22*—

November *17, 1903.*

*Executors: Objections to person named: Mandatory statute.*

Sec. 3792, Stats. 1898, providing tliat “when a will shall have been duly proved and allowed, the county court shall issue letters testamentary thereon to the person named executor *558therein, if he is legally competent,” etc., is mandatory;. and objections going merely to the temper, disposition, habits, and moral character of the person named, rendering him obnoxious to parties interested in the estate, will not justify the court in disregarding the expressed wish of the testator. *Estate of Pike,*45 Wis. 391, distinguished.

Appeal from a judgment of tbe circuit court for Milwaukee county: James O’Neill, Judge.

*Affirmed.*

Louis Saxe executed Ms last will and testament January 6, 1894. He died September 9, 1900. On September 12, 1900, *Leo E. Saxe*and Thomas J. Pereles, named as executors in the will, petitioned the county court for' the probate of the will and for letters testamentary to be granted thereon according to law. On November 5, 1900, the widow and ten of the children of the deceased (being all except one and *Leo E.*Saxe) appeared and objected in writing to the appointment of *Leo E. Saxe*as such executor for the reasons that he was incompetent and *irresponsible;*that he would be obnoxious, and would not act for the benefit and interest of the persons interested in the estate; and that he was hot of such a character in whom confidence and trust could be imposed. Afterwards, on November 13, 1900, the will was admitted to probate. On May 28, 1901, the county court entered an order overruling and setting aside such objections and appointed *Leo E. Saxe*as one of such executors, and thereupon, on the same day, *Leo E. Saxe*accepted such trust and qualified as such executor and duly filed the bond required of him by law and the order of the county court, and letters testamentary were thereupon issued to him.

Thereupon an appeal was taken from such order and judgment of the county court so appointing Leo *E. Saxe*as such executor to the circuit court, wherein, after due notice, the cause was retried, and at the close of the trial that court found, in addition to the facts stated, in effect, that at the time of the probate of the will and issuing of letters testa*559mentary thereon to *Leo E. Sa<xe*he was legally competent to act as such executor; that some years before *Leo E. Saxe*■gambled at .times, but the nature of such gambling was not disclosed by the evidence, and it was not proved that he was ever an habitual or professional gambler; that the- evidence tended to throw suspicion upon the good faith of some of the business transactions of *Leo E. Saxe*in previous years, but was not sufficient to prove actual fraud and dishonesty on his part; that the evidence failed to sustain the objections filed to his appointment as such executor, except in the particular that he was obnoxious to the heirs who filed such objections. And as conclusions of law the court found, in effect, that *Leo E. Saxe,*at the time of the death -of the testator and the probate of the will, was, and still is at the present time, legally competent to act as such executor of said last will and testament, and was entitled to the issuance of letters testamentary to him as such executor; that *Leo E. Saxe*was entitled to judgment affirming the order of the county court in said matter, and therein directed the case to be remitted to the county -court for further proceedings as provided by law; that *Leo E. Saxe*was and is entitled to recover his costs and disbursements on such appeal from the appellants, and ordered judgment to be entered accordingly. From the judgment so entered the plaintiffs appeal.

Eor the appellants there was a brief by *Nath. Pereles & ■Sons,*attorneys, and *James G. Flanders,*of counsel, and oral argument by *F. U. Remington*and *G. D. Goff.*

Eor the respondent *Leo E. Saxe*there was a brief by *Fieb-ing & Xillilea*and *Howard Van Wycle,*and oral argument by *Mr. Van WycTc.*

Cassoday, O. J".

By stipulation of the parties the case was retried in the circuit court upon the evidence taken in the -county court. Such testimony was voluminous. The view *560wo bave taken of tbe case, however, renders it unnecessary to discuss tbe evidence in detail. Tbe statute declares:

> “When a will shall bave been -duly proved and allowed tbe county court *shall*issue letters testamentary thereon to tbe person named executor therein, *if he is legally competent*and shall accept tbe trust and give bond as required by law.” Sec. 3192, Stats. 1898.

Upon tbe will being admitted to .probate, and *Leo L.*Saxe,. named as executor therein, having been appointed as such, be immediately accepted tbe trust and gave bond as required by law and tbe order of tbe county court. This being so, the important question is as to tbe effect to be given to tbe language of tbe section which declares that “the county court *shall*issue letters testamentary ... to the person named executor therein, *if he is legally competent"*Both tbe county court and tbe circuit court found as a matter of fact and as a conclusion of law that *Leo L. Saxe*was legally competent to act as such executor. Tbe findings of the court are amply supported by tbe evidence. There is no claim that be was wanting in mental capacity to perform tbe duties of executor. The objection that be was irresponsible seems to be answered by bis promptly giving tbe requisite bond. Tbe other objections are to. tbe effect that be abused bis stepmother, was obnoxious to the objecting heirs, and that bis character was not such as to inspire confidence and trust. ' Tbe objections go. to bis temper, bis disposition, bis habits, and bis moral character, rather than to bis capacity to do business. Are such objections available to set aside tbe expressed wish of the testator ? A recent work declares that:

> “An executor, according to tbe common-law doctrine, derives bis office solely from tbe will by which be is appointed, and not from tbe probate, which is held to be only evidence of bis right. In many, if not all, of tbe states of tbe Union the authority of an executor, while derived primarily from tbe will, is not derived solely therefrom, and is not complete until tbe executor has qualified by complying with certain *561statutory requirements, and bas received letters testamentary from a court of competent jurisdiction; but the *nomination*contained in tlie will *cannot be disregarded by the court*unless the person named is for some reason disqualified to act as executor, and the authority of the court in the premises is limited to qualifying the executor and issuing letters testamentary, and does not extend to the appointment, as that authority pertains to the testator alone.” 11 Am. & Eng. Ency. of Law (2d ed.) 744, 745, cited approvingly in *Somervaill's Will,*104 Wis. 72, 74, 80 N. W. 65.

To the same effect, Schouler, Ex. & Adm. (2d ed.) § 33. Such rule is amply supported by authority. Thus it was long ago held in Kentucky that:

> “Moral fitness of person appointed executor by will cannot be inquired into by the court to which he applies for permission to qualify. Executor derives his office from testamentary appointment, and, if he is a person not disqualified by law from being an executor, the court has no right to refuse to permit him to qualify, or to refuse to grant him letters testamentary.” *Berry v. Hamilton,*12 B. Mon. 191, 54 Am. Dec. 515; *Holbrook v. Head,*9 Ky. Law Rep. 755, 6 S. W. 592; *Worthington v. Worthington’s Ex’r,*18 Ky. Law Rep. 62, 35 S. W. 113.

So it has been held in Connecticut that:

> “The rule of the common law as to who might be executors was that all persons might be who were mentally capable of executing the trust, or were not specially disqualified. Where a testator appoints an executor out of the class recognized by the common law or by statute as capable, the probate court cannot reject the person so appointed, except in cases where the law has specially so provided.” *Smith’s Appeal,*61 Conn. 420, 24 Atl. 273.

In New York it has been held that, “to render one incompetent to serve as executor, . . . it is not sufficient to show that he has an ill-regulated temper, lacks self-control, and is accustomed to use abusive language toward those named as co-executors.” *McGregor v. McGregor,*3 Abb. Dec. 92; *Emerson v. Bowers,*14 N. Y. 449. So it was held in Pennsylvania *562many years ago that “a person found by inquisition to be an habitual drunkard is not thereby deprived of his power to perform the office of executor or administrator.” *Sill v. M'Knight,*7 Watts & S. 244. See *Holladay v. Holladay,*16 Oreg. 147, 19 Pac. 81. The direction of the testator in naming his executor is not to be disregarded except as prescribed by statute. This court has recently reversed a case for failure to follow the direction of the testator in the appointment of a person to fill a vacancy as trustee. *Cole v. Watertown, ante,*p. 133, 96 N. W. 538.

Counsel for the appellants cite *Estate of Pike,*45 Wis. 391. That was a proceeding to remove an executor under a statute now embraced in sec. 3803, Stats. 1898. Such statute expressly authorized the county court to remove an executor who should “neglect, after due notice given by the county court, to render his account and settle the estate according to law, or to perform any judgment of the court,” or who should “abscond, or become insane, or otherwise incapable or unsuitable to discharge the trust” imposed upon him. It will be observed that the several things which may thus authorize removal are all such as occur after he is appointed. It is enough to say that the case a.t bar does not come within the provisions of that section.

We must hold that *Leo E. Saxe*was legally competent to act as such executor within the meaning of sec. 3792, Stats. 1898, and hence that that statute was mandatory and required the county court to give effect to the expressed wish of the testator by appointing him as such executor.

*By the Court.*— The judgment of the circuit court is affirmed.