56 Conn. 208 | Conn. | 1888
On January 25th, 1868, Mary Bishop executed her will, disposing of a large estate, and appointing her two sons, Ethan F. and William D. Bishop, executors. She died September 14th, 1880. On the 25th day of that month Ethan F., by written notice to the probate court, declined to accept the executorship. On the 27th day of the same month the will was admitted to probate and letters testamentary issued to William D. Bishop, the plaintiff, as sole executor, who -duly qualified and entered upon the dis
The plaintiff asks the Superior Court if, upon the foregoing facts and the cited provision from the will, the judge of probate and himself can now appoint a co-executor. That court has reserved the question for our advice.
As a matter of certainty the testatrix made it possible that there might be two executors of her will; as a matter of probability, amounting almost to certainty, she both expected and desired that two should continue to execute it. For she confers upon two persons jointly authority to speak for her in the unlimited future in the matter of filling a vacancy.
All this justifies us in including within her intention the vacancy caused by the declination of either of her appointees to qualify and discharge the duties, as well as that caused by resignation after qualification. Presumably, her mind was upon the matter of substance, namely, the continued succession of two, rather than upon an unimportant question, namely, what caused a vacancy ? And as the two causes, death and resignation, produce the vast majority of vacancies, it may safely be assumed that in using them she intended to cover every vacancy in the execution of her will.
Moreover, by her appointment the testatrix conferred upon Ethan F. Bishop the right to the office of executor if he should choose to accept, qualify and discharge the duties. Acceptance, qualification and discharge of duties depended upon himself solely; no one could prevent him. To decline
The executor is the creation solely of the testator. And it is within the power of the latter, not only to appoint personally, but he may project his power of appointment into the future, and exercise it after death through an agent selected by him. And the agent may be pointed out by name, or by his office or other method of certain identification. Hartnett v. Wandell, 60 N. York, 346; State v. Rogers, 1 Houst. (Del.), 569; Jackson v. Paulet, 2 Robert., 344; In Goods of Cringan, 1 Hagg., 548; In Goods of Deichman, 3 Curteis, 123. Therefore the Superior Court is advised that since the death of this testatrix she can lawfully continue to fill vacancies in the executorship of her will by the joint appointment of her duly authorized representatives, the plaintiff and the person who for the time being holds the office of judge of probate for the district of Bridgeport.
In tins opinion the other judges concurred.