Gen. No. 11,163 | Ill. App. Ct. | Jun 3, 1904
delivered the opinion of the court.
Section 7 of the act in regard to Wills (R. S. chap. 148, sec. 7) provides that when any will shall be exhibited for probate, “it shall be the duty of the court to receive probate of the same without delay and to grant letters testamentary thereon to the person or persons entitled.” The first section of the act in regard to the administration of estates (R. S. chap. 3, sec. 1) provides that when a will has been duly proved and allowed, the “ court shall issue letters testamentary thereon to the executor named in such will if he is legally competent and accepts the .trust and gives bonds to discharge the same; and when there is no executor named in such will, or the executor named therein dies, refuses to act or is otherwise disqualified, the court shall commit the administration of the estate ” to other parties whom the statute mentions. Section 3 of the same act provides that “in cases where the person appointed executor is at the time of proving the will a minor, of unsound mind or convicted of any crime rendering him infamous, administration with the will annexed may be granted, unless there is another executor who accepts -the trust, and administers it until the minor arrives at full age or the other disability is removed.” Section 5 of the act is as follows: “ Where two or more executors are appointed in and by the same will, and one or more of them dies, refuses to take upon himself the executorship or is otherwise disqualified, letters testamentary shall be granted thereon to the other person or persons so named, not renouncing as aforesaid, and not disqualified.” These are the statutory provisions deemed applicable in the case before us.
It is contended in behalf of appellants that the words “ or otherwise disqualified” are equivalent to “in any way disqualified ” or “ in any way unfit,” and do not relate to what precedes or succeeds; that any cause which will justify a court in removing an executor or administrator will justify refusing to appoint him, and that if unfit the court may and should disregard the nomination made in the will; that.in this state, executors derive their power, not from the will but from the law, and hence that the whim of the testator in naming an executor should not be regarded as unalterable law.
As the statutes above referred to provide, it is the duty of the court to grant letters testamentary to the executor named in the will if he or she is “ legally competent ” and accepts the trust. This statute is mandatory. Appellants urge that whatever force be given to the words “ legally competent” and “otherwise disqualified,” appellee’s relations to the testator, the estate and the beneficiaries under the will were and are such that she should not be appointed executrix. For the purposes of this controversy the charges against her moral character and conduct as made by the objectors may be regarded as admitted by demurrer and treated as true. The requirement of the statute is, however, only that the executor named in the will shall be “ legally competent,” not that his or her moral standards shall be above criticism.
It is urged in behalf of appellants and elaborately argued that there is a distinction between “disability” and “disqualification;” that the former is want of legal power or capacity to act, while the latter may exist where there is a want of personal suitability arising from misconduct or bad character, as alleged in the case at bar. If, however, the words “ otherwise disqualified ” be given the meaning contended for and regarded as equivalent to “ in any way unfit,” the unfitness must nevertheless be s,uch as to create a legal disqualification—unfitness in point of law—in order to authorize a court to disregard the nomination of the testator and refuse letters testamentary to the executor named in the will. Unless so disqualified, appellee must be deemed “legally competent,” however objectionable to other beneficiaries or to a co-executor.
The only question, therefore, we need further consider is whether the facts alleged in the petition, if true, make out a case of legal incompetence against appellee. One may be “ legally competent ” to act as executor, whether we understand the word “ competent ” in the sense of being “ fit ” or “ qualified ” or “ suitable ” or “ having ability or capacity,” as the word has been defined, without being fit or suitable in every sense of the word. In a general way we understand one to be legally competent who possesses the qualifications demanded by law. Section 3 of the Administration Act provides that all persons of the required age, “ of sound mind and memory, may be appointed executors,” unless under conviction for a crime rendering him or her infamous. This appears to be the only statutory requirement in this state, and one who meets these and the common law conditions possesses the legal qualifications demanded.
We are not referred to any case "décided in this state wherein the question before us has arisen. There are, however, decisions in other states which are in line with what we regard as the proper rule under our statute. Among these may be cited McGregor v. McGregor, 3 Abbott’s Appeals (N. Y.) 92; Berry v. Hamilton, 54 Am. Decisions 515; In re Appeal of Ann Smith, 61 Conn. 429; In re Bauquier’s Est., 88 Cal. 302" date_filed="1891-03-18" court="Cal." case_name="In re Bauquier">88 Cal. 302, where, as in the case at bar, objection was made that the executrix named had in the lifetime of the testator received from him real and personal property in which said executrix then held an interest adverse to the estate. In these cases the general conclusion is that the court having authority to admit a will to probate cannot reject a person therein named as executor, except in cases where the law has specially so provided. In Holladay v. Holladay, 16 Oregon, 147, the court considers at length whether the letters testamentary may be refused to an executor named in the will who is not liable to any statutory disqualification, but who in the judgment of the court-may be otherwise unfit or unsuitable, and concludes that the person named in the will as executor not being disqualified under the statute nor at common law, it was the duty of the court to appoint him. The common law forbade the appointment of one of unsound mind, but the rule was that all persons might be appointed who were capable of making a will; that “ every person may be an executor saving such as are expressly forbidden.” Williams on Executors, 268. Hence it has been said that neither immorality, habitual drunkenness, attainder, outlawry for political offenses, conviction of crime, nor large indebtedness to the estate which the executor nominated denied, created a disqualification, though the party named in the will was obviously unsuitable. Idiots and lunatics were practically the only persons disqualified under the common law, and the rule now prevails generally that courts have no discretion in respect to- the issue of letters to the person nominated in the will unless specially authorized or vested with discretion by statute. Kidd v. Bates, 41 L. R. A. 154.
We are not to be understood as holding that the nomination by the testator of a trustee may not be disregarded. That question is not before us. In Schouler’s “Executors and Administrators,” section 33, it is said that “the interests of creditors and legatees should be respected more than any gratification of the testator’s caprice in selecting the trustee of those interests, and the proper execution of his will is paramount to the execution by any particular agency.” This is applicable where discretion is given.
We conclude that any one is “legally competent” who could be appointed executor under the common law, and who does not fall within the special disabilities or disqualifications mentioned in our statutes above cited; and the court cannot refuse to appoint one nominated in the will who is thus legally competent.
The order of the Cir'cuit Court must therefore be affirmed.
Affirmed.