The testator's will is the source of all of the authority that is conferred upon the executor. From the will the executor gets all his rights and powers. The statutes limit in many cases these rights and his authority. The will must show that the executor is in fact named. He must be identified, although evidence may be introduced where the description is imperfect to show that the particular person is the one desired by the testator.12 The appointment of the executor may be positive and clear, in which case no question can arise. Again, the appointment may be conditional, requiring him to enter into bonds to secure his proper action and prompt disposition of the funds of the estate. There are provisions sustained which require the executor to probate the will within a fixed time. The failure on the part of the executor to carry out the provision regarding this condition will prevent such executor from qualifying.13 It is not necessary that the word "executor" be used to grant to a person named in the will the right and power to act as the executor thereof. If his duties and charges are clearly set forth it is sufficient and constitutes an appointment under the will.14 The words "sell out all real and personal estate" of the testator was held sufficient to nominate the public administrator as executor of the will.

11Christie vs. West, 36 la., 285.

Ela's Appeal, 68 N. H. 35. 12 In the matter of Hardy, 2 Dem.

Surr. (N. Y.), 91.

13 Knox vs. Newman, 44 N. J. Eq., 309.

Section 7. Petition. The petition for letters testamentary, made by the executor, containing the proper allegations regarding the time and place of death and the property of the deceased, makes for the executor a prima facie case, entitling him to the issuance of the letters testamentary.15 The fact that the testator may be an incompetent person or an improper person to act as such will not affect his 'prima facie rights. If it can be shown that he is an improper person the letters will not be issued to him, but the burden of showing that is upon the party objecting to the executor's appointment. In some jurisdictions the practice is not to question the appointment at the time it is made, but subsequently to make a motion to remove the executor upon the ground of his incompetency and disqualification. The burden of proof of course would be upon the party seeking the removal.16 The pendency of litigation seeking to set aside the will or to prevent the person named therein from acting as executor will not be grounds for preventing the executor from qualifying or the court from appointing him.17