By the Court, Mitchell P. J.
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 *97alone should be accountable for the balance which was found in his hands, and should pay the same, or that he and White were both accountable for it, and should pay it. He did pass on the question, and declared that White was accountable with his co-executor for the $121 alone, and that no debt was discharged by the payment of funeral expenses, and that the rest of the moneys were “ received by and debited to R. Bullock alone, and not jointly by him and C. L. White, his co-executor.” The negation “not jointly by .him and C. L. White his co-executor,” was added to prevent any doubt as to the extent of the acts of each, and of the liability of each. The decree in conformity with this makes Bullock alone liable for the money thus received. The plaintiff receives the benefit of this decree—is exonerated from liability to the creditors for any part of the moneys thus charged to Bullock, and which may still be a valuable immunity to him (if, as intimated, Bullock has failed to pay all the creditors) and acquiesced in the decree, and founds this very claim upon it, and still seeks to disprove the most important parts of it. This is as unjust as it is contrary to legal principle. If the decree is not conclusive between these parties as to the amounts received and paid by each; then the defendant may turn around and sue the plaintiff for half of the $5807.78 with which he is charged, and produce these verified accounts, according to his views, as an admission by White that he had received half of the money. But the accounts, if admissible as evidence, would not establish the facts for which they were offered. The two executors were together to render accounts of all moneys received by both or either of them. In making out the accounts, no question being then raised as to the extent of the separate or joint liability of each executor, the accountant might well entitle them schedules of moneys received by Robert Bullock and C. L. White, executors ; for then the main thing was to show what moneys were received for the estate and paid out for the estate, and not how far each executor was liable, and he would regard the executors and the estate as synonymous. Each executor would also swear that the schedules contained a true account of all moneys paid and *98received by him, and so far only did he verify it. If they contained all that he received and all that he paid out, although they contained much that he never received but which his co-executor received, and much that he never paid out, but which his co-executor"paid out, his affidavit.was true that they were a true account of all moneys paid and received by him. He did not swear that the accounts were true as to the persons by whom they were received. The schedules contain the items of the moneys received and paid out by Bullock as surviving partner of Mounsey &, Co., and entitle those as “ rec’d by R. Bullock, surviving partner,” and do not there mention White. The reason of this is that the executors would be accountable for the net balance only to which Mounsey’s estate was entitled as his share in the partnership property, after paying all debts, and therefore in the accounts containing the items from which that net balance was derived it was stated as received by R. Bullock as surviving partner, and not by him and White as executors.
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 *99plaintiff was not responsible with the defendant for all moneys received by the defendant for the estate, merely from being a co-executor; and (4th.) That there was no proof that he had done any act to make himself responsible, except as to the $121, and that the surrogate did not hold him responsible except as to that sum. The judge refused to charge, (5th.) That an executor is 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 receive ing it; declaring the proposition too broad.
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 *100executors, either equally or upon some equitable principle in reference to their respective services in the administration of the estate.” Did he not mean equally, when their services or liabilities were equal, or nearly so, or upon some other principle—in both cases having reference to their respective services? This would best comport with the views of an equity judge. The apportionment is not determined as in case of partnership, by positive agreement as to the shares of each, but by rules of equity. Those rules would never favor the one who neglected the estate, and give him a bounty out of the compensation earned by the other.
[New York General Term,
May 7, 1855.
The judgment is affirmed, with costs to the defendant.
Mitchell, Clerke and Cowles, Justices.]