The appellee admitted the several facts stated in the reasons of appeal, but denied the inferences deduced from them by the appellants. At common law, there is no doubt that where there are two executors, and one accepts the trust and the other renounces, and the one who accepts dies, the survivor may take letters testamentary. The renunciation is not peremptory, and he may at any time come in and administer while the chain of executorship remains unbroken by the appointment of an administrator. Toller, 68-69; Judson v. Gibbins. 5 Wend. 224; 1 Wms. Executors, 155.
He may retain it after the death of his co-executor, *Page 109 and if administration be committed to another before refusal by the survivor, the administration is void. 1 Wms. Executors, 155-158.
The reason of the common law rule is the respect which it feels for the will of the testator, and the duty of carrying this will into effect.
It considers that the testator has the same right to appoint his executor as to dispose of his property, and his will is as binding in the one case as in the other.
The counsel for the appellant contends, that the statute provisions of Rhode Island render the common law inappropriate to this State.
By our statute the executor must give bond before he can act and before letters testamentary can issue, the common law requiring no security of that kind. By our statute the Court of Probate may for causes therein mentioned, remove an executor; in England the spiritual Court has no such authority, this jurisdiction being exercised by the Court of Chancery. See Dig. of 1844, p. 234, sections 15 and 19.
And, in case the executor refuses for the space of twenty days to give bond, our statute provides, the Court of Probate may commit administration to another with the will annexed, in like manner as where the executor refuses the trust. Dig of 1844, p. 234, sec. 16.
These provisions do not, in our judgment, furnish any indications of an intent in the General Assembly to change the rule.
The causes, for which the Court of Probate may remove an executor, are where he is incapable of executing the trust by reason of absence, sickness or insanity, and, where any of these causes exist at the time of the application for letters testamentary, we think the Court of *Page 110 Probate would be justified in refusing the application. It would be absurd to grant the letters under such circumstances.
So, the requiring of the bond is intended to guard the estate and insure the faithful conduct of the executor.
The testator may fairly be presumed to have intended that his executor should not be permitted to act, unless he would give bond, or, if before probate he should have become incapable of executing the trust, he should not be permitted to qualify, or if being qualified, he should afterwards become incapable of executing the trust, that he should be removed.
The 22d section of the act in relation to the wills of real and personal estate provides, that when there are several executors and all do not qualify, those who do and the survivors of them shall have the same power as is given by the will to the whole of them. Dig. of 1844, p. 235.
This provision, instead of changing the common law rule, we think recognizes it and is intended to carry it into effect. The authority of the whole is given to those who qualify and the survivors of them, upon the presumption that such is the intent of the testator.
There are other statute provisions in relation to this subject, but none of them can be considered as intended to change the common law in its application to cases like the present.
We think, therefore, that William B. DeWolf is entitled to come in and qualify himself and take letters testamentary, notwithstanding his renunciation February, 1838, unless he has become incapable of executing the trust for some of the causes enumerated in the statute.
We have heard the objections which have been made *Page 111 against Mr. DeWolf, and we think he is a fit and proper person to execute the trust.
The only reason of appeal which remains to be considered is the want of notice.
This case is not enumerated in the cases, in which notice is required to be given by the 15th section of the act establishing Courts of Probate. Dig. of 1844, p. 228.
But we think it comes within the spirit of that section, and, if there were no legislation on the subject, we think notice was required upon common law principles.
For this cause the decree of the Court of Probate of Bristol must be reversed, but, as all the questions involved in the case have been fully discussed on the appeal and all the parties interested have been heard, we have thought it our duty to express our opinion upon these questions to prevent further controversy.
Decree reversed. *Page 112