47 Iowa 242 | Iowa | 1877
Upon the bill of exceptions in this case there was an agreement indorsed' by the appellee’s attorneys in these words: “ The foregoing seems to be a correct bill of exceptions, and we agree that it is.” The bill was not signed by the judge, and the appellee now moves to strike it out. It is unnecessary to pass upon the motion, because, with the view which we have taken of the case,- it may be determined upon the facts as above set forth, and the counsel for the appellee in their brief state that these facts are conceded by both parties.
Where a person dies testate, and no executor is named in the will, one or more may be appointed to carry it into’ effect. Code, § 2332. It is implied in the above that if an executor is named in the will such person (if he will accept the charge)
' We are of the opinion that, as the person named as executor in a will is entitled to administration, it is not contemplated that a person with general powers of administration shall be appointed to precede him. Where a person is named as executor in a will, it is to be presumed that in the judgment of ■the testator he possesses a special fitness for the discharge of the trust. Indeed, the very reason that he is named at all must be because the testator desired that he should administer rather than any one else. Yet, if an administrator with gen-feral powers can be appointed to precede him, and the probating of the will delayed by such obstacles as ingenious and interested persons might interpose, the estate might be fully administered upon by a person who was not the testator’s choice. -' The fact that the statute makes no provision for the appointment of an administrator with general powers to precede the ■person named in the will, but does provide for the appoint
Reversed.