Persons attainted, outlaws, insolvents, and persons of bad moral character may be quali fied as executors, because they act en autre &mit and it was the choice of the testator to appoint them ; 6 Q. B. 57 ; Berry v. Hamil ton, 12 B. Mon. (Ky.) 191, 54 Am. Dec. 515 ; Sill v. McKnight, 7 W. & S. (Pa.) 244; 3 Salk. 162. It is the duty of the court, when a will has been proven, to grant letters tes tamentary to the person named in it upon application, if he is not disqualified by stat ute ; Holladay v. Holladay, 16 Or. 147, 19 Pac. 81. Poverty or insolvency is no ground for refusing to qualify an executor ; but an insolvent executor may be compelled to give security ; Longberger's Estate, 148 Pa. 564, 24 Atl. 120. In some states a bond is requir ed from executors, similar to or identical with that required from administrators. The testator may, by express direction, exempt from the obligation of giving a bond with sureties any trustees whom he appoints or directs to be appointed, but not his executor, unless permitted to do so by state statute ; because the creditors of the estate must look to the funds in the executor's hands.
Idiots and lunatics cannot be executors ; and an executor who becornes non compos may be removed ; 1 Salk. 36. In Massachu setts, when any executor shall become insane, or otherwise incapable of discharging his trust, or evidently unsuitable therefor, the judge of probate may remove him ; Thayer v. Homer, 11 Mete. (Mass.) 104. A drunkard may perform the office of executor ; Berry v. Hamilton, 12 B. Monr. (Ky.) 191, 54 Am. Dec. 515 ; Sill v. McKnight, 7 W. & S. (Pa.) 244 ; but in some states, as Massachusetts and Pennsylvania, there are statutes providing for his removal.
Appointment. Executors can be appointed only by will or codicil ; but the word "execu tor" need not be used. He may be appointed and designated, by committing to his charge those duties which it is the province of an executor to perform ; 3 Phill. Eccl. 118 ; My ers v. Daviess, 10 B. Mann 394; Ex parte McDonnell, 2 Bradf. Surr. (N. Y.) 32 ; State v. Watson, 2 Speers (S. C.) 97 ; Carpenter v. Cameron, Watts (Pa.) 51. Even a direction to keep accounts will, in the absence of any thing to the contrary, constitute the person addressed an executor. A testator may pro ject his power of appointment into the fu ture and exercise it after death through an agent pointed out by name or by his office ; Bishop v. Bishop, 56 Conn. 208, 14 Atl. 808.
The appointment of an executor may be absolute, qualified, or conditional. It is abso lute when he is constituted certainly, imme diately, and without any restriction in re gard to the testator's effects or limitation in point of time ; Toiler, Ex. 36. It may be qualified as to the time or place wherein, or the subject-matters whereon, the office is to be exercised ; 1 Will. Ex. 204. Thus, a man may be appointed executor, and his term, made to begin or end with the marriage of testator's daughter ; or his authority may be limited to the state: or to one class of prop erty, as if A be made executor of goods and chattels in possession, and B of Moses in ac tion; Swinb. Wills, pt. 4, s. 17; pl. 4 ; 3 Phill.
Eccl. 424. Still, as to creditors, three limit ed executors all act as one executor, and may be sued as one ; Cro. Car. 293. Finally, an executor may be appointed conditionally, and the condition may be precedent or sub sequent. Such is the case when A is ap pointed in case B shall resign. Godolphin, Orph. Leg. pt. 2, c. 2, § 1. As to appointment, see Manning v. Leighton, 65 Vt. 84, 26 Atl. 258, 24 L. R. A. 684 ; 39 Sol. J. 228, 244.
Removal. An executor who fails to keep proper accounts or to render any account for a long period, who retains the trust funds mixed with his own and who makes improp er investments, should be dismissed ; Simon's Estate, 155 Pa. 215, 26 Atl. 424 ; but failure to account is not compulsory ground of remov al ; Cosby v. Weaver, 107 Ga. 761, 33 S. E. 656 ; and the mere delay of an executor to convert real estate into personalty when the same has increased in value, is not such mis conduct as to warrant his removal ; Wilcox v. Quinby, 65 Hun 621, 20 N. Y. Supp. 5. He may be removed, however, where he has any conflicting personal interest ; Putney v. Fletcher, 148 Mass. 247, 19 N. E. 370.
Assignment. An executor cannot assign 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 ex ecutorship. And an administrator de bon,is non succeeds to the executorship in both these events, in the United States generally, wher ever a trust is annexed to the office of execu tor ; Hendren v. Colgin, 4 Munf. (Va.) 231; Patterson v. High, 43 N. C. 52 ; Vance v. Vance, 17 Me. 204 ; In re Van Wyck, 1 Barb. Ch. (N. Y.) Lott v. Meacham, 4 Fla, 144.
Acceptance. The appointee may accept or refuse the office of executor ; 3 Phill. Eccl.
577; Stebbins v. Lathrop, 4 Pick. (Mass.) 33 ; Williams v. Cushing, 34 Me. 370 ; Leavitt v. Leavitt, 65 N. H. 102, 18 Atl. 920. His ac ceptance may be implied by acts of authority over the property which evince a purpose of accepting, and by any acts which would make him an executor de ion tort, which see. So his refusal may be inferred from his keeping aloof from all management of the estate ; Van Horne v. Fonda, 5 Johns. Ch. (N. Y.) 388 ; Ayres v. Weed, 16 Conn. 291; Marr v. Peay, 6 N. C. 85, 5 Am. Dec. 521; Ralston's Estate, 158 Pa. 645, 28 Atl. 139. But he cannot be compelled to accept and qualify or renounce in some formal manner ; Cable v. Cable, 76 Ia. 163, 40 N. W. 700. If one of two or more appointees accepts, and the other declines or dies, or becomes insane, he becomes sole executor ; Croft v. Steele, 6 Watts (Pa.) 373. An administrator de bonis non cannot be join ed with an executor.