In re Dearing

There seems to have been no provision of law made, under which new letters can be issued to an executor or administrator, where they have been revoked ; and no common law rule appears to exist, authorizing it to be done. The decree of revocation must be regarded as conclusive and final, unless obtained fraudulently, or on some other ground which would warrant the court in setting it aside or vacating it.

Suppose the executor whose letters have been revoked had been the only one named in the will, and an administrator with the will annexed had been duly *83appointed, and afterwards the ground of revocation had ceased to exist, could the court displace the administrator and replace the executor ? . So, if an executor, after entering upon his duties, should remove from the State, and, on being required, should fail to give a bbnd, in consequence of which his letters should be revoked, would he, afterwards, on removing into the State again, be entitled to be restored to the office he had vacated ? And again, suppose he were, while executor, convicted of an infamous crime and imprisoned in a State prison, in consequence of which his letters were revoked; and suppose that, pending his term of imprisonment, he should be pardoned and restored to citizenship, could the court again create him executor ? These questions require an answer in the negative. Where letters have once been revoked, the appointment of the executor has ceased to exist, just as completely as if he had never been named by the testator. He cannot be rehabilitated.

In this case there is an executor duly qualified and acting. It may be inconvenient or impossible for him to discharge his duties. In that case, he could apply to have his resignation accepted, and, if successful, then an administrator' with the will annexed might succeed him.