The record-union., 1891-03-21
SUPREME COURT DECISIONS.

[Filed at Sacramento, March 1S, 1871
Appeal from the Superior Court of Sac
ramento County-W. c. Van Fleet, Judge
For appellant. c. Tubbs and A. L..
Hart.
For espondent-Grove L. Johnson and
James 3. Devine.
IN BANK.
ESTATE OF BAUQUIER. No. 14.OS0.
Mary G. Rode was named in the will of
Joseph Bauquier, deceased, as executrix
without bonds, and filed in the Superior
Court Of Sacramento County her petition
for the probate of said will and for the
issuance to her of letters testamentary.
Objections to her appointment as execu-
trlx We're filed by her brothers, who were
also legatees named in the will, upon the
alleged ground that she in the lifetime of
SAID Joseph Bauquier, ''for the purpose
OF pecuniary gain and to obtain an un-
just and larger portion of the estate of
SAID Joseph Bauquier, deceased, than she
was legally or morally entitled to, and to
defraud said Peter, Frank and Joseph
BauquIer OF their just proportion of said
estate, did, by means Of intimidation,
| falsehood, fraud, deceit, misrepresenta-
ton and undue influence, compel, influ-
ence and induce her said father, the said
Joseph Bauquier, deceased, to assign, set
over and deliver' to her Sl2,543 IS in
money and certain described real and
personal property, and that the said peti-
toner claims adversely to the estate to be
the owner of said property so fraudu-
Iently obtained. This is followed by the
general allegation that said Mary Rode
Is incompetent to act as executrix of the
said last will and testament for want of
Integrity as shown by the facts herein set
forth, and that she is generally incom-
flvl laI-r 81 y,
forth to act as such eXecutriX."
An answer was filed to these objections.
and after trial upon the issue arising.
the court made the following, and only
finding:
Mary c. Rode is incompetent to exc
cute the duties of the trust of executrix
OF the said last will and testament of said
Joseph Bauquier deceased, for want of in
tegrity; and that the said Mary C. Rode
is ntagonistic and hostile and asserts
claims adverse to the said estate, and that
she wants integrity in that regard.r
The court thereupon denied her applica-
ton to be appointed executrix. The pc
tltoner moved for new trial, which was
denied, and from this latter order this
appeal is taken.
!. Under section 1850 of the Code of
Civil Procedure, no person is competent
10 serve as an eXecutrlX who is wanting
In integrity. The word integrity, as here
used, means SOundneSS of moral princi-
pie and character, as shown by one per-
son S dealing with others in the making
and performance of contracts, in fidelity
and honesty in the discharge of trusts.
IN short, 1t is used as synonym for pro-
blty,. honesty and uprightness in business
relations with others. The evidence in
the record before us is not such as would
justify finding that the petitioner is lack
ing in integrity, as thus defined, and we
are not certain from the peculiar language
OF the finding quoted, that the learned
Judge of the court below intended to say
anything more than that the adverse in
terests of the petitioner would prevent her
from fairly Justly and properly protecting
the estate, and that this is a want of integ-
rlty within the meaning of the statute.
We do not think, however, that the mere
fact that the appellant claims property as
her own, which the other legatees insist
belongs to the estate, would of itself and
without some reference to the honesty Of
her claim, show want of integrity.
2. The remaining inquiry is whether
the court was justified in denying the
appellants application upon the ground
that she lis antagonistic and hostile, and
asserts claims adverse to the said estate
of Joseph Bauquier, deceased, and to the
heirs at law, and persons interested in
said estate,' or adopting the language of
claims hostile and adverse interest in
property alleged to belong to the estate,
be appointed administrator of such es-
tate?"
The answer to this will be found in the
provisions of the Code of Civil Pro-
cedure, relating to the appointment of
executors and declaring who shall be
incompetent to acti that capacity. These
sections are as follows:
Section 1349. The court admitting a
will to probate, after the same is proved
and allowed, must issue letters thereon to
the persons named therein as executors
who are competent to discharge the trust,
who must appear and qualify, unless OBJ
lection is made as provided in Section
1851"
'Section 1850. No person is competent
to serve as executor who, at the time the
will is admitted to probate, is:
81. Under the age of majority.
''2. Convicted of an infamous crime.
''3. Adjudged by the court incompetent
to execute the duties of the trust by rea-
son of drunkenness, improvidence or
want Of understanding or integrity"
''Section 1851. Any person interested in
a will may file objections, in writing, to
granting letters testamentary to the per-
sons named as executors, or any of them,
and the objections must be heard and de-
terInlneQ Dy ule court.
The meaning OF these sections is that,
at the time of admitting the will to pro-
bate, the court must appoint as executor
the person who is therein named as such,
if he has petitioned therefor and is not in
competent, unless written objections to
such appointment have been filed, in
which case the objections must be heard
and determined, and the objections made
must be such as to show that the appli-
cant is incompetent upon some one OF the
grounds specified in Section 1850 of the
Code OF Civil Procedure.
Under our law man has the right to
make such disposition of his property as
he chooses, subject only to such limita-
tions as are expressly declared by law.
and within the same limitation he has the
absolute right to select the executor to
carry out the provisions of his will. In
other words, any executor named in a
viii has the right to act unless there is
some express provision of law which de-
clares that he shall not, and, as a con-
sequence, the testator may lawfully select
anv person for this trust who does not fall
within one of the classes expressly men,
toned and declared TO be incompetent.
And. SO far as our investigation has ex-
tended, this construction has been uni
formly given TO statutes relating to this
subject. Thus, DEMO. c. J., in his opin-
ion, rendered in McGregor VS.. McGregor.
| Il Keyes, p. 1897, says: 1.-The selection of
executors is not committed to the Surro-
gates Court. The testator is allowed to
appoint such persons as he may see fit.
provided they do not fall within the