The court will not appoint an administrator cum testamento annexo at once. The executor named therein should be given every opportunity to qualify or to renounce his trust. The persons entitled to an appointment of administrator with the will annexed are determined by the statute regarding the appointment of an administrator where the decedent died intestate.30 The residuary legatee, however, is entitled to an appointment in preference to other persons, and if he is the sole legatee under the will, his claim to the right to administer is almost conclusive. Upon the death of a sole executor the right then devolves upon the residuary legatees to have letters of administration.

28 Rosenthal vs. Prussing, 108 Ill., 128; Tanner vs. Huss. 80 Cal., 614; Atkinson vs. Hasty, 21 Neb., 663; In re Sullivan, 25 Wash., 430.

29 See statutes in the several states.

30 Garber's Estate, 74 Cal., 338