White v. Bullock

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.