20 Barb. 91 | N.Y. Sup. Ct. | 1855
The finding as to the receipts and payments of the executors was a matter within the jurisdiction of the surrogate on the final settlement of the accounts ; for he was to determine how much each executor was liable for. If one executor had received all the moneys and made all the payments, and the other had every reason to believe that the active executor was doing all this prudently and according to law, the inactive one would not be accountable for the moneys thus received by his co-executor. The surrogate was therefore bound to ascertain how these facts were, before he could decide whether his decree should be that Bullock
The plaintiff’s counsel then requested the judge to charge the jury that the plaintiff was entitled to one half of the commissions ; and that the parties could not go back of the surrogate’s decree, to ascertain the services rendered by each. The judge refused. If the latter part of this proposition was correct, then the plaintiff had no right to prove the accounts verified by the executors, for in that he would go back of the decree. Next he requested the judge to charge that if any difference should have been made in the commissions to be received by the executors, such difference could have been made in the decree only. The judge charged, (1st) that the commissions were to be divided between the executors according to the services rendered by them; and that without other proof of those services it was to be determined by the amount stated in the decree to have been received and paid by them respectively ; (2d.) That if it had been proved that the plaintiff had rendered services in aid of the receipt and payment of the $5807.78 received by Bullock, or had become jointly liable with him for that amount, or for part of it, he would have been entitled to a fair compensation for that service; (3d.) That the
The last proposition is evidently too broad; for it would make an executor liable, in case he had it in his power to pre* vent the executor receiving money, if he did not prevent it, although he should have no reason to believe that the executor was not acting in good faith in receiving it, and would not faithfully keep it for the estate. Besides, there were no facts to raise the question. The objection to the 3d branch of the judge’s charge was also too hroad, and like the last. The 2d branch was favorable to the defendant, if there had been any facts to sustain it. The 4th branch was a statement as to the proofs, and was true.
The authority quoted by the plaintiff (if any were needed) shows that if an executor is merely passive he is not responsible for the acts of his co-executor, and that he cannot be made chargeable for a devastavit of his co-executor, unless he in some way contribute to it. (2 Wms. on Executors, 1530.) Justice would require that when he has done nothing, and has borne no responsibility, he should not share in the commissions. The act of 1849, ch. 160, is in accordance with this principle. It requires the surrogate to apportion the commissions among the executors according to the services rendered by them respectively. It did not introduce a new principle, but gave to the surrogate an express power and obligation to apportion the commissions, because before that, no such express power was possessed by that officer, and possibly no such implied power. In Valentine v. Valentine, (2 Barb. Ch. 438,) the chancellor said “ the whole commissions should be apportioned among all the
The judgment is affirmed, with costs to the defendant.
Mitchell, Clerke and Cowles, Justices.]