
    Landers, Ex’r, v. Stone et al., Adm’rs.
    Decedents’ Estates.—Executor.—Power to Administer all the Assets.—Letters testamentary give the executor the power and right to administer all the-property of the testator, though a part of the property is not bequeathed by the will.
    Same.—Letters of administration cannot be legally granted and confirmed while letters granted and confirmed to an executor named in the will are in full force.
    From the Morgan Common Pleas.
    
      W. R. Harrison and W. S. Shirley, for appellant.
   Buskirk. J.

This is an appeal from an order of the court below, confirming an appointment made by the clerk in. vacation, of the appellees as administrators of the estate of Abner Cox, deceased.

The facts necessary to an intelligible understanding of the-questions of law arising in the record, and which we are-required to decide, will appear from the special finding of facts, which was rendered by the court at the request of the parties, and is as follows :

“ Come again the parties, by their attorneys aforesaid, and now by agreement this matter is submitted to the court for trial upon the record proofs. And the court, by agreement of parties, makes the following special finding, viz.: That Abner Cox, Senior, died on the-day of-, 186—, testate, leaving a will, a copy of which is set out in objections and exceptions of John Landers; and that over and above and besides the property devised and bequeathed by, and mentioned in, the said will, there was and is belonging’ to the estate of said Cox, and not embraced in or disposed of by said will, a sum of not less than twenty thousand dollars, in money and choses in action.
“The court further finds that on the-day of-, 18’—, the said will was duly admitted to probate, and letters testamentary were issued thereon to said John Landers, in the following form : I, John Hardwick, Clerk of the Court of Common Pleas for the county of Morgan, in the State of Indiana, do certify the annexed to be a true copy of the last . will of Abner Cox, Senior, late of said county, deceased, and of the certificate of' probate, as endorsed thereon; and John Landers, having duly qualified and given bond as required by law, as executor, is duly authorized to take upon himself the administration of said estate, according to such will.
‘“Witness my hand and the seal of said court, the 22d ■day of October, 1871; John Hardwick,
‘‘ ‘ C. C. P. C. Morgan county.*
"To said letters so issued was attached a copy of the will, ■elsewhere set out; that said Landers filed his bond as such ■executor, to the approval of the clerk, in the sum of fifty ■thousand dollars, and took into his custody, and still retains in his custody, all the money, personal estate, and choses in action, of said deceased, under his letters testamentary, until this time, as shown by the records made part of the causes for not confirming said letters by said Landers, and which said' letters, as shown by said record, were confirmed by said court.
"That afterward, to wit, on the - day of January, 1873, letters of administration of all said estate, except that ■embraced in the will, were issued by the clerk of this court to Giles B. Mitchell and Eli Stone, who qualified and gave bond, in all things as by law required, and were otherwise ■competent to administer said estate and exercise said office .and said trust. And the court finds that when said letters testamentary were issued to said Landers, he was not, is not mow, and in the meantime has not been; a resident of the ■county of Morgan, wherein said estate is situated, and wherein the 'Said Cox resided at the time of his death. Upon the foregoing facts, the court finds and concludes, as a matter of law, that said Lander^, is not, by virtue of said letters testamentary, entitled to administer any of said estate of said Cox not embraced in the said, will, and mentioned and ■described above as being not less than twenty thousand dollars; and that the aforesaid appointment and letters of administration, made and issued to the said Mitchell and-Stone, should be confirmed, approved, and ratified; which is now by the court accordingly done.
i ■ “To all of which rulings, and findings, and matters of law,, said Landers excepts.
“Therefore it is ordered and adjudged by the court, that the granting of letters of administration by the clerk of this court, in vacation, to Giles B. Mitchell and Eli Stone, in the. estate of Abner Cox, deceased, be in all things confirmed.”

The appellant has assigned for error the action of the court in confirming the appointment of the appellees as. administrators of the estate of the said Abner Cox, deceased.

The principal questions arising in the record may be thus stated :

■ i. Did the letters testamentary, granted to Landers as. executor of the will of Abner Cox, deceased, give him the-power and right to administer the property other than that specifically bequeathed by the will ?
2. Could letters of administration be legally granted and. confirmed, while the letters granted and confirmed to the executor named in the will were in full force and vigor ?
3. If both of the above propositions should be decided, adversely to appellant, do the facts set -up by appellant estop the heirs of said decedent, and all persons claiming the right to administer in their behalf, from so administering ?

The solution of the first two propositions mainly depends, upon the construction of the act relating to the settlement of decedents’ estates.

It is provided by the first section of said act, that after the expiration of ten days from the time when the existence of a will shall have been made known, and it shall have been duly admitted to probate, the proper clerk shall issue letters testamentary thereon to the persons named therein as execütors, who shall qualify, unless,” etc. (Then follows, exceptions, as to married women, persons under age, infamous by reason of having been convicted of crime, and incompetent by reason of improvidence, habitual drunkenness, or other incapacity.)

The sixth section is : If there be no person named in the will as executor, or if those named therein have failed to qualify, have renounced, or have removed, letters of administration, with the will annexed, shall be granted by the proper clerk or court to any competent residuary legatee .named in such will, willing to accept, or if there be none willing to accept, then to a competent specific legatee, or if there be none such willing to accept, then to any competent person, under the same regulations as in granting letters of administration in case of intestacy.”

The seventh section is as follows:

Sec. 7. After the expiration of fifteen days from the death of an intestate, the proper clerk or court having examined the person applying for letters, and such persons as may be deemed proper to be examined, under oath, touching the time and place of the death of the intestate, whether he left a will, and concerning the qualifications of such person, and there being no such will, shall grant letters of administration in their order : first, to the widow; second,, to the next of kin; third, to the largest creditor residing in the State ; and, fourth, if no person thus entitled to administer shall apply within thirty days after the death of the intestate, the clerk or court shall appoint a competent, inhabitant of the county, to whom the letters shall issue.”

The thirteenth section provides, for the appointment of special administrators.

The fifteenth section declares who shall be an executor de son tort. ' ■

The sixteenth section provides that “ if any executor, administrator with the will annexed, or administrator, shall die, resign, remove from the State, or his authority be revoked, or superseded, the remaining executor or administrator shall complete the administration of the estate ; but, if no such executor or administrator be remaining in the State, the proper clerk or court shall grant letters of administration, or of administration with the will annexed, to. any person entitled thereto, under the same regulations as in ■case of issuing the original letters; and which administrator, or administrator with the will annexed, thus appointed de bonis non, shall have the same rights, and be subject to the same liabilities, as the executor or administrator first ■appointed.”'

If there is an executor named in the will, he must be ■appointed, if willing to serve.

An administrator, with the will annexed, can be appointed In the following cases :

1. When there is no person named in the will as executor.
2. When those named in the will have failed to qualify.
3. When those named as executors have renounced the right to administer.
4. When the executor named in the will, and who has been appointed, has been removed.

It is expressly declared in the seventh section, that no administrator can be appointed when there is a will. Whenever there is a will, there must be either an executor or administrator with the will annexed. The only difference between an executor and an administrator with the will annexed consists in their mode of appointment. The one is designated by the testator, and .appointed by the clerk or court. The other is appointed by the clerk or court. In the appointment of an administrator with the will annexed, preference is to be given, first, to a competent residuary legatee; second, to a specific legatee;. and, third, then to any competent person, under the same regulations as to granting letters of administration in case of intestacy; that is to say, first, to the widow; second, to the next of kin; third, to the largest •creditor residing in the State; and fourth, to some competent inhabitant of the county. This view is greatly strengthened by the sixteenth section. By that, if an executor, or ■administrator with the will annexed, shall die, resign, remove from the State, or has his authority revoked or supei'seded, ■an administrator de bonis non with the will annexed must be appointed; but if the office of an administrator becomes 'vacant from any of the above causes, another administrator is appointed, and the administrator de bonis non with the will ■annexed has the same rights, and is subject to the same liabilities, as the original executor or administrator with the will annexed, while the administrator has the same rights, and is -subject to the same liabilities, as the original administrator; that is to say, the one settles the estate under the will, while the other does it under the statute.

The statute in question, after providing for the appoint.ment of executors, administrators, administrators with the will annexed, administrators de bonis non with the will -annexed, and administrators de bonis non, proceeds to declare the force and effect of such letters, and the power and - authority of the person appointed. The seventeenth section is as follows: " Such letters, issued from a court of competent jurisdiction, shall be conclusive evidence of the authority of the person to whom they are granted, until superseded or revoked, and shall extend to all the decedent’s ■-estate.”

The various provisions of the statute are consistent with ■each other, and make a perfect and- harmonious system. Whenever there is a will, there must be either an executor or administrator with the will annexed. When there is no 'will, there must be an administrator. There cannot be, in the • same estate, both an executor, or an administrator with the 'will annexed, and an administrator. The executor is succeeded by the administrator with the will annexed, and the -administrator with the will annexed is succeeded by the -administrator de bonis non with the will annexed. They all - act under and in pursuance of the will. When there is no 'will, an administrator is-appointed and is succeeded by an -administrator de bonis non, and they act under and in pursuance of the statute. The seventeenth section relates to all «of these several kinds of letters. It says: "Such letters, issued from a court of competent jurisdiction, shall be conclusive evidence of the authority of the person to whom. they are granted, until superseded or revoked, and shall extend to all the decedent’s estate.” That is to say, when, there is a will, there shall beeither an executor or an administrator with the will annexed, and his authority shall extend, to and embrace all the property of the decedent, without reference to whether it is all disposed of by the will or not; and when there is ho will, there' is simply an administrator,, whose authority extends to and embraces all the property of which the decedent died possessed. Under such a construction, there will be no confusion. The entire estate is in the hands of one person. If there was an executor, or administrator with the will annexed, and an administrator, in the. same estate, the utmost confusion would result. Against whom, in such a case, would a creditor file his claim ? In. what manner would distribution be made, and how could, advancements be adjusted? Aside from the inconvenience, confusion, and embarrassment resulting from two persons, acting in antagonism, the expense would be so enormous as. to consume an ordinary estate.

The views we have expressed are ■ in accordance with the. law defining the powers and declaring the liabilities of executors and administrators. In x Williams Executors, 546, the. rule in England is stated thus: “ The general rule is, that, all goods and chattels, real and personal, go to the executor or administrator; the whole of the personal estate vests in. the executor or administrator.” The same author, in vol. 2,, p. 775, says, Executors have absolute power of disposal of the whole personal estate.”

Redfield on Wills, vol. 2, sec. 2, p. 59, says: “The: mere nomination of an executor, without making any disposition of one’s estate, or giving any other directions whatever, will constitute a will, and render it necessary that the-instrument be established in the probate court.”

. Granting letters testamentary or of administration is a, judicial act; and where the court which has granted them>. had jurisdiction, individuals and courts of justice are bound to respect the authority of the letters, and to presume that: all the requisite steps have been rightly performed, Ray v. Doughty, 4 Blackf. 115.

The appellant was nominated executor in the will. Letters testamentary were issued to him by the clerk, and such appointment was confirmed by the court. He gave bond to-the acceptance of the court and entered upon the discharge of the duties of the trust. His authority has not been revoked or his letters superseded. If such were the case, an administrator with the will annexed would. have to be-appointed, and not merely an administrator.

In our opinion, the clerk possessed no power to appoint the appellees administrators, and the court erred in confirming such appointment.

The conclusion reached renders it unnecessary to consider the question of estoppel discussed by counsel.

The judgment is reversed, with costs; and the cause is, remanded, with directions to the court below to set aside-the appointment of the appellees as administrators of such, estate.  