
    WHITE v. BULLOCK.
    September, 1857.
    Reversing 20 Barb. 91.
    Under the Revised Statutes, which give compensation to executors in general terms, not providing for any apportionment among them upon equitable principles, if the surrogate could in any case apportion the commissions of co-executors unequally, on the ground of inequality in the services rendered by them, where he fails to do so, each is entitled to an equal share, irrespective of the inequality of service.
    
    Officers compensated by a commission, are, in the absence of agreement, entitled to share equally, although the labor be not equally shared.
    Charles L. White sued Eobert Bullock, in the supreme court, to recover his half of commissions allowed by the surrogate on the settlement of accounts of the parties as co-executors of the estate of one Mounsey.
    Plaintiff put in evidence the surrogate’s decree adjusting the accounts of the parties as such executors; and also offered the accounts themselves, sworn to hy each of the parties, which 'were excluded, on objection by ‘defendant’s counsel, that the decree decided that all but one hundred and twenty-one dollars was received by defendant alone, and not by defendant and plaintiff jointly. Both parties then rested, and plaintiff’s counsel requested the judge to charge the jury that plaintiff was entitled to one-half the commissions named in the surrogate’s decree, with interest from the date thereof; and that the surrogate’s decree directs the commissions of the executors to be retained; and that the parties can not go back of the decree to ascertain the services rendered by each, to fix upon what each were to receive for commissions. That if any difference should have been made in the commissions to be received by the parties, it could have been made only by decree of the surrogate. The judge refused so to charge; and plaintiff’s counsel excepted.
    The judge charged the jury that if the surrogate’s decree had found upon the amount of commissions to be received by each executor, it would have been conclusive, if that were a matter then within his jurisdiction, as to which no opinion was expressed. That as it stated only the amount to be paid to both executors, that amount must be decided between them in proportion to services rendered by each executor; and that without any other proof of their services, it was to be determined by the amount stated by the decree, to have been received and paid out by them respectively; that if it had been proved'that plaintiff had rendered services in aid of the receipt and paying out of the five thousand eight hundred and seven dollars and seventy-eight cents received by defendant, or had become liable jointly with him for that amount, or for part of it, he would have been entitled to a fair compensation for that service. Plaintiff’s counsel excepted to the charge.
    The jury after retiring, returned and asked the judge if plaintiff was not equally responsible with 'defendant, for all moneys received by defendant for the estate. In reply, the judge charged that plaintiff was not so liable merely from being a' co-executor. To which plaintiff’s counsel excepted: and asked the judge to charge that an executor was always accountable for money received by his co-executor, if he aids or assents to its being received by his co-executor, or. it is in his power to prevent the executor receiving it. The judge refused so to charge, as too broad a rule; and plaintiff’s counsel excepted.
    A verdict was rendered for plaintiff for three dollars and fifty cents. A motion for a new trial was denied at general term, and the judgment affirmed, with costs. Plaintiff appealed.
    
      A.- Thompson, for plaintiff, appellant.
    The surrogate having made no difference between the executors in the amount of commissions each was to receive, the presumption of law was that they were to be equally divided; unless defendant showed that hé was entitled to the whole of the commissions.
    J. W. Gerard, Jr., for defendant, respondent.
    The surrogate’s settlement and allowance of the accounts, was conclusive, and the decree final, 2 R. 8. 4th ed. p. 281, § 78. And the introduction of the accounts ro contradict the decree was there-, fore inadmissible. But if admissible in evidence, they would only indicate what moneys were received and what paid out for the estate, but not the liability of the executors. Each executor was entitled to commissions, not for services or responsibilities, but for moneys passing through his hands. 2 R, 8. 2d ed., p. 93, § 58; and is liable merely for his-own acts and what he receives. Sutherland v. Brush, 7 Johns. Ch. 17; Douglass v. Satterlee, 11 Johns. 16; Messick v. Messick, 7 Barb. 120; Bogert v. Hertel, 4 Hill, 492.
    
      
       The apportionment of commissions between co-executors is now provided for by L. 1868, p. 608, ch. 363, § 8. See Van Nest’s Estate, 1 Tuck. 1-30.
    
   By the Court.

S. L. Seldey, J.

The Revised Statutes, in .prescribing the compensation to be allowed to executors and administrators, upon the settlement of their accounts before the surrogate, gave, in terms, no power to the surrogate to apportion that compensation among them where there were several. It is possible as intimated by the chancellor, in Valentine v. Valentine, 2 Barb. Ch. 430, that even prior to the latter act, the exercise of such a power would have been considered within the general range of the surrogate’s jurisdiction.

But upon the settlement of the executor’s accounts in this case, which took place prior to the act of 1849, the surrogate made no apportionment; all that he did which would have any bearing upon this subject, was to adjust and settle as between the executors, the relative amounts which each had received and paid out.

Row, admitting, as the learned judge upon the trial assumed, that the sums so raised and paid, would, in the absence of all other proof, afford presumptive evidence^ were that question properly in issue, of the amount "of service which each had rendered, yet it by no means follows that he was right in instructing the jury that they might apportion the compensation upon that basis.

As the Revised Statutes, upon which the question wholly depends, gave the compensation to the executors in general terms, without providing for any apportionment among them, upon equitable principles, the legal consequence clearly was, that when there were several executors, the compensation was to be divided equally among them. This right to compensation was a strict statutory right, not depending upon any equities whatever, and each was entitled to what the statute gave. The case is precisely analagous to that of two attorneys jointly employed in the same suit, under the old system o'f attorney’s fees, one of whom had collected the entire tax-bill. In an action by the other to recover his share of the fees, no one, I imagine, even supposed that the defendant could set up that he had performed more than half the labor, and therefore, was entitled to a proportionate share of the fees. "Were the legislature to appoint three commissioners, to superintend the erection of some public building, and to disburse the necessary funds, giving them a certain percentage upon the amount expended, by way of compensation, no one would contend, in the absence of any agreement among themselves, that one could legally claim more than his ratable share of the compensation, on the ground that he had performed more of the labor than his associates.

Until the principle of equitable apportionment was introduced by the act of 1849, I doubt whether even the surrogate, notwithstanding his plenary jurisdiction over the whole subject of the settlement of estates, had power"to deprive either of the executors of any portion of the compensation to which he would be entitled by the terms of the statute. But, however this may have been, I think it quite clear, that a court of law, .in the absence of any direct action of the surrogate on the subject, could have no real power. This conclusion renders it unnecessary to pass upon any of the other questions raised upon the argument. The judgment should be reversed, and a new trial ordered, with costs, to abide the event.

Judgment accordingly.  