142 Mich. 58 | Mich. | 1905
James Breen died on July 26, 1904, a resident of Sault Ste. Marie, Mich., where he had lived from 1902. Previous to that time he had lived in Ontario. He left a large estate in both countries. A will made in Ontario some years before his death named his widow,
The cause was tried at circuit before a jury, and a verdict was directed. No question is raised over the propriety of the trial by jury. The deceased left a widow and several children surviving him, all of whom reside in Michigan. Lynn has filed his refusal to act as executor. The will contains a provision authorizing the acting executor to remove such other executors as reside abroad or become incapable to act. Annie Breen filed her bond as executor, letters testamentary were issued to her, and she is administering the estate, which administration is now nearly completed, and the estate in shape to be carried on by her as sole executrix.
Counsel seem to agree that the question in the case is whether it was within the authority and discretion of the probate judge to appoint two nonresident aliens, one of whom was indebted to the estate, to the office of executor. We will therefore consider no other question. 3 Comp. Laws, § 9310, provides:
“ (9310) Section 1. When awill shall have been duly proved and allowed the probate court shall issue letters testamentary thereon, to the person named executor therein, if he is legally competent, and shall accept the trust, and give bond as required by law.”
This section appears to leave no discretion in the probate judge. If the person named is legally competent, and will accept and give the bond, he must be appointed.
If a nonresident alien is not eligible in Michigan, it must be by reason of 3 Comp. Laws, § 9317, which provides that:
“ (9317) Sec. 9. If an executor shall reside out of this State, or shall neglect, after due notice given by the judge of probate, to render his account and settle the estate according to law, or to perform any decree of the court, or shall abscond or become insane, or otherwise incapable or unsuitable to discharge the trust, the probate court may remove such executor.”
If we construe the word “may” in this section in accordance with the common understanding of the word (see 1 Comp. Laws, § 50, subd. 1), it should be said that this section was designed merely to permit removal, not to compel it, and perhaps refusal to appoint one not a resident of the State. It is suggested, however, that the word has acquired a peculiar meaning, appropriate to the purpose of its use, and should be held to mean “ shall.” To give force to this claim, counsel cites cases where, under similar statutes in relation to administrators, it has been held that the courts may refuse to appoint a nonresident administrator in the first instance. Thus in Gary’s Probate Law (3d Ed.), § 267, it is said that:
“ Removal from the State being ground for revocation of letters of administration, it would seem that a nonresident, otherwise entitled, should not [not cannot] be appointed.”
The authority cited in support of this statement is Radford v. Radford, 5 Dana (Ky.), 156. In that case a' woman abandoned her husband and went to another State
Mr. Oros well, a text-writer, interprets our statute (section 9317) as follows:
“ In Michigan and Vermont no prdvision of statute touches the point, except that if executors or administrators reside out of the State, they may be removed from office; from which it would seem that they are incompetent to be originally appointed.” Croswell on Executors and Administrators, § 94.
Mr. Woerner is more guarded. He contents himself with saying (somewhat inaccurately, perhaps) that “in Maine, Michigan, and Ohio nonresident executors who fail to account and settle in the probate court when required, are to be removed.” 1 Woerner on American Law of Administration, p. 505. In Wiley v. Brainerd, 11 Vt. 112, revocation of letters testamentary was refused. What the statute was does not appear, but the result would indicate that there was a statute, and the quotation from Gary indicates that it may have been a statute similar to ours. In any event, the case goes no further than to hold that her rejection was within the discretion of the county court, and we should perhaps be disposed to follow the case to that extent in the construction of our statute. It is entirely consistent with the interpretation of the word “ may ” in accordance with common understanding, and falls short of holding that such an appointment was prohibited. There are cases which hold
The foregoing discussion of the authorities satisfies us that our statute was not intended to absolutely disqualify or prohibit the appointment of nonresidents to the office of executor, but to make the nonresidence ground for the exercise of a discretion both in appointment and revocation. « There is a wide difference between an administrator and an executor. The latter’s appointment must ordinarily be made in accordance with the will of the testator, unless he is ineligible, or a statutory discretion, express or by implication, to refuse it, is lodged with the court. See note to Berry v. Hamilton, 54 Am. Dec. 518 (12 B. Mon. [Ky.] 191), and other cases hereinbefore cited. Por a case closely in point, see Cutler v. Howard, 9 Wis. 309.
It is said that Kehoe’s indebtedness to the estate disqualifies him. The authorities cited are in point upon this question. When the statute has not intervened, indebtedness to the testator does not disqualify. The exact point was decided in Kidd v. Bates, 120 Ala. 79 (41 L. R. A. 154).
The order of the circuit court is affirmed.