The record-union., 1891-03-21

lfleu PROVIDES WHO SIdll De uecilleu III
competent to serve as an executor. am
of the opinion that any person appointed
or named as an executor in will is TO be
deemed competent, unless he is declared
incompetent by statute, and that it is the
duty of the Surrogate to grant letters to
every person named as executor in will,
upon his application, who is not declared
incompetent to serve by statute. He has
no discretion to exercise in the matter,
but must obey the requirements of the
statute, which is the sole source of his
power"
The Court of Appeals of kentucky take
the same view OF this question: 1T is
sufficient for us to say that the law has
declared who may and who may not be
executors, and if Berry be man whom
the law allows to be appointed as such, it
follows that, upon his motion to give
bond and security, and to qualify under
the viii, it was the duty of the County
Court, If the security was sufficient. to
permit him to give bond and be qualified
as executor, and to give him letters testa-
mentary. u Whatever may be
opinions of men as to the propriety or
lmpropriety of a particular appointment,
the very basis and foundation of the eX-
ercise of the right which society has
granted to its members to appoint its
own representatives after death, is the
special confidence reposed by the testator
III lue dppOlHlee. Anu men, IL seems 10
us, would care but little for the high
privilege of disposing of their estates to
their own liking, ifthey are to be denied
the right of selecting those who are to
carry out and effectuate the benevolent
purposes of their wills. 1t is true some
persons are incapable of being executors.
The law has pointed out who they are,
and society has long been satisfied with
the wisdom of the rules upon this sub
fRarrU va
roe, 1917
That the courts have no right to say thata
person is Incompetent to disappointed as an
executor, unless he falls within one of the
| class OF persons expressly declared to be
incompetent by statute, is further shown
by the decisions in regard to adminiStra-
tors where the law designateS the order of
priority in which different persons shall
be entitled to appointment and also de-
clareS who are incompetent to act. 1t is
held in such cases that the order of pri-
ority named in the statute must be fol-
lowed, and that no person can be de-
clared incompetent unless he is one of q
| class so declared by the statute. A lead
ing case on that point is Coope VS.. Low
ere, Il Barb. Ch. 45) In that case the
Chancellor said: ''The revised statutes
provide that administration, in cases of
intestacy, shall be granted to the relatives
| of the deceased who would be entitled to
his personal estate, if they or any Of them
will accept the same, in the order specified
in the statute. And | think the Surro-
gate has no discretion to exclude person
! declared by the statute to be entitled to a
preference, except for the causes specified
in the thirty-Second section of the title of
the revised statutes, relative to granting
letters testamentary and of administra-
ton"
This case has been approved and fol-
lowed n 10 Of tn Cf Do
checo, (23 Cal. 4S0.) In that case it was
said: ION the trial it was admitted that
one of the applicants, Rosa Pacheco de
Sibrian, cannot read, write, or speak the
English language; that she cannot read
or write the Spanish; that she is SO years
old, Californian by birth, and daugh-
ter OF the lnteState. 1t is not claimed that
the other applicant, Penniman, is subject
to any of the disqualificationS mentioned
Ill Section 50, nor is the other applicant
properly included therein. The fact of
her great age, and that she cannot read or
write, and that hecannot speak English,
do not show any want of understanding
within the statute. 1t is true, they
may render it difficult for her to perform
some OF her duties properly, yet they do
not render it impossible.
In the case of COope VS.. Lowerre, q
Barb. Oh. 45), it was held by the Court of
Chancery of New York, in constituting a
similar statute, that the Surrogate had no
discretion to exclude a person declared
by the statute to be entitled to prefer
ence, except for some of the causes speci-
fled in the statute. And it was held that
no degree of legal or moral guilt or de-
Hnquency was sufficient to exclude
person from the administration, as the
| next of kin, in the cases of preference
given by the statute, unless such person
had been actually convicted of an in
| famous crime. In that case the admins
tration was granted to person
proved to be dishonest, and against whom
a large judgment had been recovered in
case OF Grim. con-.
We therefore hold that under
the admissions and evidence in this case,
the daughter, Rosa Pacheco de Sibrian,
was entitled to letters of administration"
The decision in the case of Coope VS..
Lowerre, supra, will be better under
stood when it is stated that in that case
objection was made to the appointment of
the petitioner as administrator of the
estate of his father upon the ground ''that
he was disqualified on account of his
vices and his improvidence," and the
statute of New York provided, among
other cases of disqualification, convic-
ton of an infamous crime, and improvi-
dence, and it was with reference to that
particular statute that the court in that
case said: mo degree of legal or moral
gum OF ueunquency, therefore, Is Sut1l-
cient to exclude person from the adj
ministration as the next of kin in the
cases of preference given by the statute
unless such person has been actually con-
victed of an infamous crime.''
The principle underlying that decision,
and the cases which have followed it. is,
that the courts have no right to add to the
disqualifications prescribed by the Legis-
lature for such cases. In some of the
States the courts are by law given wide
discretion in determining who are quail
fled to act i'll the capacity CT executors
and administrators. The decision in the
case of Stearns VS.. Fiske Us Pick. 24),
cited and relied on by respondent, was
based upon a statute which authorized
the court to deny the application of per-
son evidently unsuitable to discharge
the duties of the trust, and it was held