| Wis. | Nov 17, 1903
By stipulation of the parties the case was retried in the circuit court upon the evidence taken in the -county court. Such testimony was voluminous. The view
“When a will shall bave been -duly proved and allowed tbe county court shall issue letters testamentary thereon to tbe person named executor therein, if he is legally competent and shall accept tbe trust and give bond as required by law.” Sec. 3192, Stats. 1898.
Upon tbe will being admitted to .probate, and Leo L. Saxe,. named as executor therein, having been appointed as such, be immediately accepted tbe trust and gave bond as required by law and tbe order of tbe county court. This being so, the important question is as to tbe effect to be given to tbe language of tbe section which declares that “the county court shall issue letters testamentary ... to the person named executor therein, if he is legally competent" Both tbe county court and tbe circuit court found as a matter of fact and as a conclusion of law that Leo L. Saxe was legally competent to act as such executor. Tbe findings of the court are amply supported by tbe evidence. There is no claim that be was wanting in mental capacity to perform tbe duties of executor. The objection that be was irresponsible seems to be answered by bis promptly giving tbe requisite bond. Tbe other objections are to. tbe effect that be abused bis stepmother, was obnoxious to the objecting heirs, and that bis character was not such as to inspire confidence and trust. ' Tbe objections go. to bis temper, bis disposition, bis habits, and bis moral character, rather than to bis capacity to do business. Are such objections available to set aside tbe expressed wish of the testator ? A recent work declares that:
“An executor, according to tbe common-law doctrine, derives bis office solely from tbe will by which be is appointed, and not from tbe probate, which is held to be only evidence of bis right. In many, if not all, of tbe states of tbe Union the authority of an executor, while derived primarily from tbe will, is not derived solely therefrom, and is not complete until tbe executor has qualified by complying with certain*561 statutory requirements, and bas received letters testamentary from a court of competent jurisdiction; but the nomination contained in tlie will cannot be disregarded by the court unless the person named is for some reason disqualified to act as executor, and the authority of the court in the premises is limited to qualifying the executor and issuing letters testamentary, and does not extend to the appointment, as that authority pertains to the testator alone.” 11 Am. & Eng. Ency. of Law (2d ed.) 744, 745, cited approvingly in Somervaill's Will, 104 Wis. 72" court="Wis." date_filed="1899-09-26" href="https://app.midpage.ai/document/in-re-will-of-somervaill-8186377?utm_source=webapp" opinion_id="8186377">104 Wis. 72, 74, 80 N. W. 65.
To the same effect, Schouler, Ex. & Adm. (2d ed.) § 33. Such rule is amply supported by authority. Thus it was long ago held in Kentucky that:
“Moral fitness of person appointed executor by will cannot be inquired into by the court to which he applies for permission to qualify. Executor derives his office from testamentary appointment, and, if he is a person not disqualified by law from being an executor, the court has no right to refuse to permit him to qualify, or to refuse to grant him letters testamentary.” Berry v. Hamilton, 12 B. Mon. 191" court="Ky. Ct. App." date_filed="1851-07-07" href="https://app.midpage.ai/document/berry-v-hamilton-7378095?utm_source=webapp" opinion_id="7378095">12 B. Mon. 191, 54 Am. Dec. 515; Holbrook v. Head, 9 Ky. Law Rep. 755, 6 S. W. 592; Worthington v. Worthington’s Ex’r, 18 Ky. Law Rep. 62, 35 S. W. 113.
So it has been held in Connecticut that:
“The rule of the common law as to who might be executors was that all persons might be who were mentally capable of executing the trust, or were not specially disqualified. Where a testator appoints an executor out of the class recognized by the common law or by statute as capable, the probate court cannot reject the person so appointed, except in cases where the law has specially so provided.” Smith’s Appeal, 61 Conn. 420" court="Conn." date_filed="1892-02-29" href="https://app.midpage.ai/document/smiths-appeal-from-probate-3317812?utm_source=webapp" opinion_id="3317812">61 Conn. 420, 24 Atl. 273.
In New York it has been held that, “to render one incompetent to serve as executor, . . . it is not sufficient to show that he has an ill-regulated temper, lacks self-control, and is accustomed to use abusive language toward those named as co-executors.” McGregor v. McGregor, 3 Abb. Dec. 92; Emerson v. Bowers, 14 N.Y. 449" court="NY" date_filed="1856-12-05" href="https://app.midpage.ai/document/emerson-v--bowers-3603622?utm_source=webapp" opinion_id="3603622">14 N. Y. 449. So it was held in Pennsylvania
Counsel for the appellants cite Estate of Pike, 45 Wis. 391" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/estate-of-pike-6602677?utm_source=webapp" opinion_id="6602677">45 Wis. 391. That was a proceeding to remove an executor under a statute now embraced in sec. 3803, Stats. 1898. Such statute expressly authorized the county court to remove an executor who should “neglect, after due notice given by the county court, to render his account and settle the estate according to law, or to perform any judgment of the court,” or who should “abscond, or become insane, or otherwise incapable or unsuitable to discharge the trust” imposed upon him. It will be observed that the several things which may thus authorize removal are all such as occur after he is appointed. It is enough to say that the case a.t bar does not come within the provisions of that section.
We must hold that Leo E. Saxe was legally competent to act as such executor within the meaning of sec. 3792, Stats. 1898, and hence that that statute was mandatory and required the county court to give effect to the expressed wish of the testator by appointing him as such executor.
By the Court. — The judgment of the circuit court is affirmed.