CHAPTER XX RENUNCIATION, REVOCATION, AND § 161. Definitions RESIGNATION A renunciation, in the sense in which it is here used, is the refusal by the person named to accept the appointment as executor or trustee under the provisions of a decedent's will. A revocation is the removal from office of an executor or an administrator by the court because of some irregularity in his appointment, or because he has done something which renders him unfit for the position of trust which he holds. A resignation is the voluntary giving up of the office of executor or administrator with the consent of the court. Renunciation may take place only before letters have been issued, while revocation and resignation come after letters have been issued and the executor or administrator has started on his work of settling the estate. § 162. Acceptance The proposed executor's acceptance is shown by his taking out letters testamentary and probating the will. He must either accept or reject within a reasonable time after the testator's death. The court, if it so desires, may summon the proposed executor to appear before it and say whether he accepts or rejects the office. Where this is done and the executor fails to appear, he may be punished for contempt of court. § 163. Renunciation When a person is named as executor in a decedent's will, he may either accept or reject the office. He cannot be forced into taking it under any circumstances. He must refuse it entirely; he may not reject part of the appointment and accept another part. A renunciation is usually conclusive, though by statute in some jurisdictions a renunciation may be revoked or recalled by the nominated person unless someone else has, in the meantime, been appointed administrator with the will annexed by the court. Although a person may, during the lifetime of the decedent, have said that he would accept the office of executor, whereupon the testator appointed him his executor, this will not keep the executor so nominated from refusing to accept the office after the death of the testator. If, however, the testator has, because of the promise given him, made the proposed executor also a beneficiary under the will, the executor will forfeit this legacy by his refusal of the office. He may, however, refuse the office and still retain the legacy where it is quite evident that the legacy was left him in his individual capacity and not in consideration of the work he was to perform as executor. The death of the sole executor named in the will, before having either taken or renounced probate, leaves a vacancy, whether the death occurred during his testator's life or later, which must be supplied as in case of a formal renunciation.' Anyone who meddles with the estate before authority has been given him to handle it at all, will be barred by the court, where damage has been done, from renouncing his position of trust in order to escape the liability of his misdeeds. The court will not accept the renunciation of anyone who, for a consideration, agrees to give up his appointment as executor in order that some other party may have the opportunity of gaining the office. Where there are two or more executors and the renuncia 1 Schouler, Wills, Executors and Administrators, Vol. II, p. 1045. tion of one makes no difference to those who remain, the court will grant letters to the remaining executor or executors, or appoint persons to fill the places made vacant, if the estate will be better served by the original number of proposed executors. (See Form 14.) § 164. Revocation Revocation of the authority of an executor or an administrator or removal from office of an executor or an administator, occurs usually after letters have been issued by the court, although there is one so-called revocation that is an exception to that rule. (See also §167.) § 165. Revocation by Testator The only time in which revocation before letters are issued can occur, is where during the lifetime of the testator he destroys one will and makes another in which he appoints a different executor from the one named in the foregoing will. Such a revocation takes place whether the proposed executor is aware of the fact or not, but in most cases the making of a new will causes little confusion as to executors, for the same executor or executors are usually appointed by the testator in his new will. As the executor is not appointed until the death of the testator, it is not, strictly speaking, correct to call such a change of executors a "revocation." § 166. Procedure for Removing Representative The procedure for obtaining revocation of the authority of a representative is for a creditor, or a person otherwise interested in the state of the decedent, to present to the court by which letters were issued, a petition written out and verified, asking the court to revoke the letters given to the representative, giving the reason why revocation is desired, and asking that the representative be cited to attend a hearing for the purpose of defending himself. The representative must then be given notice and a certain period of time within which to appear before the court and plead his cause. Also all persons interested must have due notice of the hearing. At this hearing both the party bringing the complaint against the representative and the representative himself have the right and opportunity to offer evidence to prove or to disprove the charge brought. If either party is not content with the judgment of the court in the case, he may appeal to a higher tribunal, just as in any other lawsuit. While discharge from office relieves the representative from any further liability, it will not relieve him of responsibility for any wrong or damage done to the estate from his fault while the estate was in his care. § 167. Revocation by Probate Court Revocation by the court may occur through many causes, of which those following are the most common: 1. Where there was mistake or fraud in obtaining the appointment. 2. Where an administrator was appointed although decedent left a will. 3. Where there was an appointment of a personal representative when the supposed decedent was not in fact dead. 4. Where there was an issuance of letters to the wrong person or persons. 5. Where the preference that should be shown to relatives when appointing an administrator has been ignored. 6. Where the renunciation of a preferred claimant for appointment has been forged or wrongfully obtained. 7. Where the court issuing letters and probating the will had no jurisdiction to do so. 8. Where letters have been given without the issuance of the proper citations to interested parties. 9. Where the representative dies, becomes insane, or too ill to attend to his official duties. 10. Where the representative refuses to give a new bond when required to by the court, or is negligent in filing his inventory. After the proper petition has been presented and the court has heard both sides and has considered the evidence presented, it may dismiss the proceedings or may remove the representative. It may also compel the representative to make a full and complete accounting of the affairs of the estate while under his care. An executor or an administrator may not be removed because he refuses to prosecute claims which are doubtful, where the estate is small. He may not be removed because he refuses personal aid to the heirs while settling up the estate. Absence of the representative from the state beyond a certain length of time or removal to another state will be a cause for removal, but good proof of this must be offered and the regular proceedings for removal instituted. The marriage of a sole executrix or administratrix may also be sufficient cause for removal by the court. § 168. Resignation Removal without cause shown, or by way of favor to the incumbent, would be improper. For such causes, and as a gentler means of vacating an office unsuitably filled, our statutes further provide the opportunity for a fiduciary officer to resign.' Schouler, Wills, Executors and Administrators, Vol. II, p. 1156. |