On Motion eor Rehearing.
*46[9] *45The directions addressed to the district court in the opinion hereto delivered in disposing of the appeal herein contain *46the following: “To ascertain whether by reason of her [the executrix’s] delay and inattention, or for any other reason, the estate has become insolvent, and, if so, to remove her and appoint someone in her stead who can have the title to the Runnimede ranch determined. ’ ’ In his petition for rehearing counsel for the executrix insists that in making this direction the court overlooked the recent decisions in the eases of In re Blackburn’s Estate, 48 Mont. 179, 137 Pac. 381, and State ex rel. Cotter v. District Court, 49 Mont. 146, 140 Pac. 732. These decisions are not referred to in the opinion, but they were not overlooked, nor is anything said during the discussion of this case even remotely inconsistent with anything said in either of them. In the first we said: “It is, however, the policy of our law that the widow shall control in limine the administration of her late husband’s estate. (Shiels’ Estate, 120 Cal. 347, 52 Pac. 808; Dorris’ Estate, 93 Cal. 611, 29 Pac. 244.) To that end she is authorized to either administer it herself, or to nominate some person in whom she places trust and confidence to administer it for her. (In re Watson’s Estate, 31 Mont. 438, 78 Pac. 702.) No condition or limitation is imposed upon her choice save that she or the person she nominates be competent; nor does the fact that she asserts claim to property which the other heirs contend belongs to the estate render her or her nominee incompetent. (Rev. Codes, sec. 7436; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828; Brundage’s Estate, 141 Cal. 538, 75 Pac. 175Estate of Banquier, 88 Cal. 302, 26 Pac. 178, 532.)” This is entirely in accord with the express declaration found in section 7432 of the Revised Codes. Under this section the surviving wife or husband has the exclusive right to the appointment in the first instance because it is therein so declared, provided he or she is a competent person within the requirements of section 7436. Furthermore, the person so entitled may request some other competent person to be appointed, if he or she does not desire to act. The principal controversy in the case arose upon the question whether, after the wife had exercised the right to have substitution made, the appointment of *47the substitute was revocable at the request of the wife when supported by proof that she had been induced by unfair means to consent to the substitution. It was held that upon a proper showing, revocation may be had and the wife be permitted to take the appointment, but that otherwise the waiver of the right is irrevocable. In the second case was involved the question whether the surviving husband was entitled, as against the father of the deceased wife, to be appointed special administrator of her estate pending a contest of the validity of her will. It was held that the right of the husband was exclusive under section 7472 of the Revised Codes, because it is therein provided that in making such appointment preference must be given in the order stated in section 7432. It was there said : “The surviving husband or wife is entitled to general letters of administration, to the exclusion of any other person (Rev. Codes, sec. 7432), unless at least one of the grounds of incompetency enumerated in section 7436 is shown. In selecting a person to act as special administrator, the court or judge is expressly required to give preference to the person who is entitled to letters testamentary or of administration.”
Both of these cases refer to the restrictions put upon the power of the court in making the appointment in limine. They do not justify the conclusion, even remotely, that this court intended to imply, by anything said in either of them, that such an administrator or executor may with immunity adopt a course of conduct which is not only wasteful of the estate, but is wholly disregardful of the rights of its creditors. This would have been to nullify the power vested in the court by sections 7488 and 7489: To call to strict account and suspend and, if necessary, to remove an administrator or executor who has been guilty of any of the delinquencies therein mentioned. It would be a monstrous doctrine to say that after his appointment the administrator may despoil or waste the estate at his pleasure, leaving those entitled to it without the means of redress. Even without the provisions in these sections, it would seem to us that the power vested in the district court to conduct the ad*48ministration of estates implies also the power to ■ compel the trusted appointee to collect and preserve the assets of the estate put in his charge and to effect a speedy distribution of them to those entitled to share in them. True, insolvency of the estate is not a ground for the refusal of the appointment to the surviving spouse; nor is the fact that it has become insolvent subsequent to the appointment a ground for his or her removal. It is equally true, however, that the sections of the statute supra authorizing removal make no distinction between the surviving spouse and any other person whose appointment was properly made in the first place. These sections are aimed at any person who has shown himslf incompetent and untrustworthy.
In the original opinion it was pointed out that it is wholly immaterial what claim is made by the executrix to the Runnimede ranch, unless it should be shown on another hearing that the estate is insolvent, and the question must be determined whether it belongs to the estate. It was further pointed out, that, in case this exigency should be shown to exist, a removal of the executrix would be necessary in order that the question of ownership may .be • determined. It is now insisted that, instead of removing the executrix, the court should appoint a special administrator to bring appropriate action against the executrix. This subject was considered fully in the original opinion. The conclusion there stated is justified on the ground that the administration is an entirety, and there can in the nature of things be but one. It may be justified upon the further ground that jurisdiction in probate is statutory and limited, and authority for what is done by a court in the exercise of it must be directly granted by the statute conferring it, or by necessary implication, and no authority to create a double or divided administration is to be found in the statutes. However this may be, we are not disposed to recede from the conclusion heretofore announced. Certainly the executrix was not rendered incompetent to receive' the, appointment in limine because she asserted claim to property ostensibly belonging to *49the estate (In re Blackburn’s Estate, supra); but when the exigencies which have arisen since her appointment have put her in a position so antagonistic to the creditors that she cannot do justice to them and the estate, and at the same time establish her right, she ought to be relieved from her position and some fit person put in her place. She cannot bring an action against herself. (Phillips v. Phillips, 18 Mont. 305, 45 Pac. 221.) Hence the creditors cannot obtain relief.
[10] As to the suggestion that the executrix cannot be deprived of the right to nominate her successor, it may be said that in limine she had the right to the appointment, or, as an alternative, to nominate someone to serve in her stead. Having chosen to take the appointment, the right to nominate another was waived. In the case of In re Blackburn’s Estate, supra, it was held that, the right to the appointment having been deliberately waived by the wife, the renunciation becomes irrevocable. By parity of reasoning it would seem that, when the wife or husband has chosen to take the appointment, it cannot thereafter be renounced and nomination be made instead. But, conceding this to be permissible when the renunciation is voluntary, in case of removal for misconduct or because of an assertion of rights adverse to the estate, the acting husband or wife ought not to be allowed to name a successor, for the reason that the person selected would more than likely be biased in favor of the adverse claim.
Rehearing denied.
Mr. Justice Sannee and Mr. Justice Holloway concur.