Speirs v. Wisner , 1891 Mich. LEXIS 573 ( 1891 )

Chahplin, 0. J.

Mr. Wisner, Mr. Kleinhans, and Mrs. Speirs were co-executors of Mr. Mabley’s will, filing a joint bond in the penal sum of $1,000.

Mr. Wisner filed two accounts, showing that he had received from the estate and retained all the commissions allowed by the statute, and asking for a further allowance for extraordinary services rendered. All these accounts, were contested by the estate, Mrs. Speirs objecting to the amount claimed for extraordinary services, and claiming that Mr. Wisner was entitled to only one-third of the commissions. Each of these suits was carried to this Court. Wisner v. Mabley’s Estate, 70 Mich. 285; 74 Id. 143. This Court fixed his allowances for extraordinary services, but held that, as between Mr. Wisner and his co-executors, any executor could collect all the commissions, and their distribution could only be determined by a suit between themselves. After this decision MrKleinhans assigned his claim to the commissions to Mrs.. Speirs, and she files a bill of complaint for an accounting, claiming two-thirds of the commissions, being the-shares of the two executors.

We think equity had jurisdiction over the subject-matter, and is competent to afford relief.

The only question we have is, in view of the whole history of the case, is the complainant entitled to the decree prayed for? It appears very clearly that Mr. Wisner was the executor who managed the business, and who had the responsibility of administering the estate. It is true that he consulted with his co-trustees from time to time, as was proper for him to do, and to keep them advised of the situation. We cannot lose sight of the fact, however, that these fees were allowed to defendant, Wisner, by the probate court, against the strenuous objections of complainant, as being'justly due to him as a part of his compensation, although the fact of such allowance is not binding upon the conscience of this Court. One of the co-executors, Mr. Kleinhans, did not reside in this State, and the complainant was absent from the city much of the time during which the estate was in process of settlement. It strikes us as manifestly unjust that complainant should, by obtaining an assignment from a non-resident executor, demand two-thirds of the statutory fees allowed for administration. There is no rule of law or equity which declares that co-executors, without regard to the time- spent, responsibility assumed, or service rendered, are entitled to an equal pro rata share of the statutory fees. Neither Mrs. Speirs nor Mr. Kleinhans have made or filed a report of their doings as executors in the probate court, and never joined their co-executor i'n so doing.

Considering all the facts, and weighing all the equities, we do not think that the complainant is equitably entitled to two-thirds of the statutory fees awarded and allowed by the probate court to the defendant, and her bill of complaint should be dismissed, with costs.

The other Justices concurred.