Idiots and lunatics cannot be executors ; and an executor who becomes non compos may be removed. 1 Salk. 26. In Massachu setts, by Rev. Stat. c. 63, 7, when any executor shall become insane, or otherwise incapable of discharging his trust, or evidently unsuitable therefor, the judge of probate may remove him. 11 Mete. Mass. 104. A drunkard may perform the office' of executor, 12 B. Monr. Ky. 191 ; 7 Watts & S. Penn. 244; but in some states, as Massachusetts and Penn sylvania, there are statutes providing for his removal.
4. Appointment. Executors can be ap pointed only by will or codicil; but the word executor' need not be used, and the ap pointment may be constructive. 3 Eccl. 118 ; 10 B. Monr. Ky. 394 ; 2 Bradf. Surr. N. Y. 32 ; 2 Speers, So. C. 97. Even a direction to keep accounts will, in the ab sence of any thing to the contrary, constitute the person addressed an executor.
The appointment of an executor may be' absolute, qualified, or conditional. It is ab- ' solute when he is constituted certainly, im mediately, and without any restriction in regard to the testator's effects or limitation in point of time. Toiler, Exec. 36. It may he qualified as to the time or place wherein, or the subject-matters whereon, the office is to be exercised. 1 Williams, Exec. 204. Thus, a man may be appointed executor, and his term made to begin or end with the mar riage of testator's daughter ; or his author ity may be limited to the state, as Penn sylvania; or to one class of property, as if A be made executor of goods and chattels in possession, and B of chosen in action. Swinburne, Wills, pt. 4, s. 17, pl. 4; Off. Exec. 29 ; 3 Phill. Eccl. 424. Still, as to creditors, three limited executors all act as one execu tor, and may be sued as one. Croke Car. 293. Finally, an executor may be appointed conditionally, and the condition may be pre cedent or subsequent. Such is the case when A is appointed in case B shall resign. Godolphin, Orph. Leg. pt. 2, c. 2, 1.
5. Assignment. An executor cannot as sign his office. In England, if he dies having proved the will, his own executor becomes also the original testator's executor. But if he dies intestate, an administrator de bonis non of the first testator succeeds to the exe cutorship. And an administrator de bonis non succeeds to the executorship in both these events, in the United States generally, wherever a trust is annexed to the office of executor. 4 Munf. Va. 231 ; 7 Gill, Md. 81 ; 8 Ired. Eq. No. C. 52 ; 17 Me. 204 ; 1 Barb. Ch. N. Y. 565 ; 4 Fla. 144.
Acceptance. The appointee may accept or refuse the office of executor. 3 Phill. Encl. 577 ; 4 Pick. Mass. 33 ; 34 Me. 37. But his acceptance may be implied by acts of au thority over. the property which evince a purpose of accepting, and by any acts which would make him an executor de son tort, which see. So his refusal may be inferred
from his keeping aloof from all management of the estate. 5 Johns. Ch. N. Y. 388 ;16 Conn. 291. 2 Murph. Eq. No. C. 85 ; 9 Ala. 181 ; 16 Serg. & R. Penn. 416. if one of two or more appointees accepts, and the others de cline, he becomes sole executor. An admi nistrator de bonis non cannot be joined with an executor.
6. Acts before probate. The will itself is the sole source of an executor's title. Pro bate is the evidence of that title. Before probate, an executor may do nearly all the acts which he can do after. He can receive payments, discharge debts, collect and re cover assets, sell bank-stock, give or receive notice of dishonor, initiate or maintain pro ceedings in bankruptcy, sell or give away goods and chattels, and pay legacies. And when he has acted before probate he may be sued before probate. 6 Term, 295 ; 4 Mete. Mass. 421. He may commence, but he cannot maintain, suits before probate, except such suits as are founded on his actual pos session. 3 Carr. & P. 123 ; 7 Ark. 404 ; 3 Me. 174 ; 3 N. H. 517. So in some states he cannot sell land without letters testa mentary, 7 Cranch, 115 ; 9 Wheat. 565 ; nor transfer a mortgage, 1 Pick. Mass. 81; nor remain in his own state and sue by at torney elsewhere, 12 Mete. Mass. 423 ; nor indorse a note so as to be sued, in some states, as New Hampshire and Maine. 5 Me. 261 ; 2 N. H. 291. And see 2 Pet. 239 ; 7 Johns. N. Y. 45; Byles, Bills, 40; Story, Prom. Notes, 304 ; Story, Bills, 250 ; Parsons, Bills.
7. Powers of executors. An executor may do, in general, whatever an administrator can., See ADMINISTRATOR. His authority dates from the moment of his testator's death. Comyns, Dig. Administration (B 10) ; 5 Barnew. & Ald. 745 ; 2 W. Blackst. 692. When once probate is granted, his acts are good until formally reversed by the court. 3 Term, 125; 15 Serg. & R. Penn. 39. In some states he has power over both real and per sonal estate. 3 Mass. 514 ; 1 Pick. Mass. 157. In the majority he has power over the real estate only when expressly empowered by the will, or when the personal estate is insufficient, or by a grant of letters testa mentary. 9 Serg. & R. Penn. 431 ; 2 Root, Conn. 438 ; 25 Wend. N. Y. 224 ; 3 M'Cord, So. C. 371 ; 9 Ga. 55 ; Gordon, Law Dec. 93. The will may direct him to sell lands to pay debts, but the money resulting is usually held to be equitable assets only. 9 Barnew. & C. 489 ; 3 Brev. No. C. 242 ; 8 B. Monr. Ky. 499. In equity, the testator's inten. tion will he regarded as to whether the sur plus fund, after a sale of the real estate and payment of debts, shall go to the heir.