
    JURISDICTION TO SETTLE ACCOUNT OF EXECUTORS.
    [Circuit Court of Hamilton County.]
    Samuel Meyers v. W. Scott Hopkins.
    Decided, December 9, 1905.
    
      Executors — Jurisdiction of Probate Court — To Apportion Commissions between Co-Executors.
    
    The probate court has jurisdiction under Section 524 to apportion the statutory commissions between two or more executors in accordance with the services performed by each, where the accounts between the estate on the one hand and the executors on the other have not been settled and determined..
    Gieeen, J.; Swing, J., and Jblke, P. J., concur.
   This case arose in the probate ■ court upon a motion by one executor to require his co-executor to pay to him one-half of the statutory commissions allowed for performing the -services of executor. Upon a hearing of the motion, the commissions apportioned were two-fifths to- the applicant and three-fifths to his co-executor, and upon appeal a like determination was had in the -common pleas court.

It is now claimed that the court li-ad no jurisdiction of the subject-matter, that the applicant was entitled to no part of the commission for the reason that he renounced all claim in favor o-f his co-executor and performed none of the services.

Section 524, Revised Statutes, provides that—

“The probate court shall have exclusive jurisdiction to direct and control the conduct and to settle the accounts of executors smd administrators, and to -order tbe distribution of estate,”

A. E. Moore, for plaintiff in error.

Potvell c0 Smiley, contra.

The accounts here referred to are manifestly those existing between the estate on the one hand, and the executors or administrators on the other, and if the court has once settled such accounts, it would probably have no jurisdiction to entertain a motion to ascertain or determine the proportionate amount of the statutory commissions due to each executor where there are two or more. This is the extent of the 'holding of the court in the case of Wicker sham’s Appeal, 64 Penn. St., at page 67, and the ease of Mount v. Slack, 39 N. J. Equity, page 230, relied upon by counsel for plaintiff in error. Indeed, the judge delivering the opinion in the former case says, at page 69:

“I will not say that the Orphans’ Court might not apportion the commissions allowed between co-executors and administrators; but (if it be not done, and one receives all, the remedy of the other is in the common-law courts on the implied assumpsit raised by the possession of the money. ’ ’

Section 6188, Revised Statutes, provides' that executors and administrators may be allowed specified commission upon the amount of the personal estate collected and accounted for by them. If one of two executors collected and accounted for none of the personal estate, and performed no other services required under the statute as such executor, it certainly will not be claimed that the court could not in such case allow all the commissions to the executor performing the services, and it seems no less reasonable for the court to apportion the commissions in accordance with the services performed by each executor respectively.

"We are of opinion, therefore, that the court not having already settled the account of the executors, had jurisdiction to entertain the motion to apportion- the statutory commissions in accordance with the service performed by each.

The evidence upon the other question- as to whether the executor malting the motion renounced all claim to statutory commissions or performed no services, is not such as to- authorize this court to interfere on the ground that the judsment is against the weight of the- testimony.

Judgment will 'be -affirmed.  