to issue letters and would instead appoint an administrator with the will annexed.

§ 61. Necessary Qualifications of an Executor

When the testator selects an executor he should choose a resident of the state in which the testator lives, who has integrity, good repute, and business ability, and who is solvent. If he was leaving the bulk of his estate to some one person, that person, if competent, should be named as executor. It is sometimes a good plan to name the residuary legatee and a bank or a trust company as co-executors. In such case, it could be provided that no important action should be taken without the concurrence of both executors. There are strong reasons for naming a bank or a trust company as sole or coexecutor in most cases. This subject is taken up more fully later in this work. (See Part V.)

If the estate is in good shape and the executor is the most important legatee, the court would look less critically to his capabilities. It is only where the rights of legatees and creditors may be affected by the lack of skill, integrity, or competency of the executor, that it becomes the duty of the court to scrutinize carefully the proposed executor's qualifications.

§ 62. Positive Disqualifiations for Executorship

There are certain positive disqualifications, the existence of which would justify a probate court in refusing to issue letters testamentary to the nominee of the testator. It is generally held in this country that the executor appointed should be a citizen of the state so that he may be subject to the jurisdiction of the court of probate. The entire settlement of an estate is subject to the supervision of the court of probate, and it could not exercise this supervision or control the property if it were taken into another state or was in the custody of a citizen of another jurisdiction.

Generally, creditors and legatees might reasonably object to the estate's being put in charge of an insolvent or irresponsible person, or a man who was feeble bodily or mentally. In such cases, the court's duty is to protect the interests of all concerned. If a minor were named, the court might appoint an administrator to act until the nominee came of age. If the executor named could not or would not give the required bond, the court would not issue him letters. Or if he had a criminal record, was of dissipated habits or of bad repute, the court might well refuse to issue letters. Such cases are of rare occurrence, but when they do occur, the court will instead appoint an administrator with the will annexed.

§ 63. Alternate or Successive Executors

It happens at times that testators name executors without consulting the persons named. The person who is thus named may decline to act, or he may be incompetent to act or dead when the will is probated. In such case, it would save trouble if an alternate executor were named. The difficulty in such a situation is that sometimes it would appear that the alternative was a second choice and was considered the less desirable. In some cases this may be done without such a suspicion. An elder brother may be named, and it may be provided that if he be dead, non-resident, or for any other reason incapacitated for acting, then a younger brother could be called upon.

In this and in any other case where the estate is left without an executor of the will, the court will appoint an administrator with the will annexed who will carry out the provisions of the will and settle the estate in all respects as the duly appointed executor could have done.

It may be desired that a minor son should act, and in such case an executor could be named to act until such time as the minor son should be of age to act himself.

An executor may not be empowered to name someone else to act in case he cannot act himself or desires to give the position up later. Anyone occupying a position of trust cannot usually delegate his authority to another.

Two or three executors may be named, and it may be provided that one or more of those named may act. In such case the fact that one or more declined to act or were incapacitated to do so would not leave the position vacant. (See next section.)

§ 64. Co-Executors

It is common to name two or three executors to settle an estate. There are several matters that demand careful consideration in such an arrangement. If three executors are named, each has equal authority, and clashes of authority and divided counsels and independent action may cause trouble. It is true that the probate court would exercise its authority to promote harmony, but it would be better if, when there were three, it were provided that any two of them could act, and when there were two, that they should agree on all action. If under such circumstances there was a deadlock, the court could act to decide the disputed point.

One advantage of having two or three executors is that if one or more decline to serve, someone may be left who can act, and if death intervenes before the estate is settled or any trusts are fulfilled, the survivor or survivors can go on without interruption.

The matter of compensation demands consideration in cases of this kind. If the estate is small, the fees for three executors might be entirely inadequate. In New York the statute provides that where the estate is $100,000 or more, each of the executors shall be entitled to full fees, provided the number of executors does not exceed three. are more than three the fees must be divided.

Where there

In case all of

the executors named were legatees, the matter of fees would not come up.

The plan of having one individual executor and a financial institution act as co-executor is treated more fully elsewhere. (See § 497.)

§ 65. Acceptance or Refusal

It is possible for anyone to name anyone else as his executor. There is no compulsion on the person named to undertake the task other than friendship for the testator or his legatees. Even a promise made to the testator is not legally binding, being made without consideration. No person should undertake anything of the kind unless he is prepared to do all that may be required to settle the estate. To be executor or one of the executors for a large estate is lucrative and may not be especially troublesome, for large estates are likely to be in good shape and easy to handle. A small estate may, however, be more difficult to settle and the recompense, being based on the values, may be entirely inadequate. It is to be remembered that small claims and small debts and small sales and small legacies are as much, and may be much more, trouble to handle than larger items. Testators should bear this in mind and be careful whom they would saddle with an arduous undertaking.

If the executor named does not intend to assume the task, he should refuse formally and explicitly. In New York in such a case he must file a formal refusal. (See Form 14, "Renunciation.")

In other places, a failure to file bond or to appear or to take any part will be held to be a constructive refusal and the court will appoint an administrator or issue letters to any other executor or executors who may be named.

Acceptance is shown by appearance before the court and participation in the proceedings.

§ 66. Giving Bond

The testator may provide in his will that the executor named shall not be required to give bond, and in that case, unless there are creditors or legatees who need the protection of the bond, no bond will be required. In the case of a banking institution, no bond is required as there would be no question of its financial responsibility for any failure to administer the affairs of the estate properly. In the case of individual executors, bond is properly required and the bond given should be the bond of a surety company rather than an individual bond.

The bond given should be binding in case the executor fails to file inventory, to administer the estate without delay, to pay all lawful claims and legacies if the assets of the estate are sufficient, and finally to account for all receipts and disbursements.

The amount of the bond is fixed by the court after investigation of the probable amount of the estate to pass through the hands of the executor. This amount could be later increased if there were reason to think that greater security was required.

An executor would not want to give a joint bond by which he would be responsible not only for his personal default but also for any failure on the part of his co-executor. Also he would not want to bind himself to pay all debts and legacies, without a proviso that the net assets of the estate should be sufficient to do this.

§ 67. Granting of Letters Testamentary

In most cases letters testamentary issue as a matter of course after the will has been probated and the prescribed bond has been given. These authorize the executor to take possession of the personal property of the estate and to proceed to administer it. His right is superior to any other so