White v. Bullock. moneys received, amounting to $10,233.59, except the above $121, were received by, and debited to, Robert Bullock alone and not jointly by him and Charles L. White, his co-executor. The items of that residue showed that the moneys were received by the defendant alone, for rents, and the proceeds of the sales of real estate since March 1, 1841, the date of the death of the testator, and from the estate of J. M. Todd, of whom Bullock was a surviving partner. The decree also declared that the payments made; except the $121, and which with the deduction of that sum, amounted to $4656.67 "were paid by and are credited to Robert Bullock alone, and not jointly by him and Charles L. White his co-executor ;" and then striking a balance it declared the total cash in hand to be $5807.78 which it declared to be in the hands of Robert Bullock. It afterwards, reciting that the amount in the hands of Robert Bullock, one of said executors, was $5807.78, ordered that he pay, out of this sum, various sums, covering, with the commissions, the whole $5807.78 in the hands of this defendant. The directions as to commissions were that he retain the commissions of said executors, being the sum of $202,33. The plaintiff then offered in evidence a certified copy of the accounts, showing receipts and disbursements by White and Bullock as executors of Mounsey, and on which the surrogate's decree was founded, in order to show thereby what each executor received and what each paid out on account of the estate, and thus to show what commissions the plaintiff was entitled to. The judge rejected the evidence, and the defendant excepted. These accounts were sworn to by both executors; each swearing that they were just and true and contained a true account of all moneys received by him as executor. The accounts contained a number of schedules, and several of them were headed "schedules of moneys from, &c. by Robert Bullock and Charles L. White executors." These accounts were a part only of the evidence before the surrogate; for notwithstanding their production before him, he found precisely what each executor received, and what each paid out, and what each was White v. Bullock. debited and credited for; and what the two together received and paid out and were debited and credited for. The cause was tried at the New York circuit in June, 1854, before Justice MITCHELL and a jury, and a verdict was rendered in favor of the plaintiff for $3.03 damages; and in favor of the defendant, for the costs. A. Thompson, for the appellant. I. The exclusion of the executors' sworn account by the judge as testimony was erroneous. It was competent evidence, and should have been admitted. The surrogate's decree was not conclusive as between the executors. A surrogate's decree is only conclusive, on the final accounting, of the following facts, and no others. (2 R. S. 93, § 65. Pres. Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216, 221.) (1.) That the charges in the accounts for payment to creditors, legatees, next of kin and for necessary expenses are correct. (2.) That the executor or administrator has been charged with all the interest with which he is chargeable upon such moneys received by him as are embraced in his account. (3.) That the moneys stated in the account as collected were all the moneys collectable at the time of the settlement, on the debts stated in the account. (4.) That the allowance for decrease, and the charge for increase, in the value of any assets, made in the account were correctly made. (2 R. S. 93, § 65, statute 1847. Pres. Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216, 221.) (5.) The plaintiff, as executor, had no right to appeal from the surrogate's decree for not stating how the commissions due the executors should be divided between them. (6.) It is clear, then, that in this action, if the decree was not conclusive, the evidence offered by the plaintiff was improperly excluded on the trial. II. The judge erroneously refused to charge that the plaintiff was entitled to one half of the commissions, $202.33, named in the surrogate's decree, with interest from May 5th, 1847. (1.) The commissions are called or denominated in the decree the commissions of the executors, which the defendant is per White v. Bullock. mitted by the decree to retain. (2.) The presumption cannot arise that the commissions belonged to one of the executors, when they are called the commissions of the executors-simply because in paying the money in his hands he is permitted to retain them. (3.) The burden of proof on the face of the decree lay upon the defendant, to show that he was entitled to the whole of the commissions. (4.) According to the law, the commissions belonged to the executors jointly and in equal proportions, and even the surrogate had no right to divide them. The surrogate now has the right. (2 R. S. 93, § 58, amended by Laws N. Y. 1849, ch. 160, § 1, p. 218, 219.) (5.) If the surrogate could have made a difference between the executors, he did not do it, and in such case the presumption of law would be that the commissions should be equally divided. (6.) The surrogate's court is a statutory jurisdiction, and has no common law or other powers, except those conferred by statute. (Dakin v. Hudson, 6 Cowen, 221. Bloom v. Burdick, 1 Hill, 180. Corwin v. Merritt, 3 Barb. 341. People v. Barnes, 12 Wend. 482. Dakin v. Demming, 6 Paige, 95.) III. The judge's charge was erroneous in holding that the surrogate's decree not having passed on the amount of the commissions to both executors, the amount must be divided between them in proportion to the services rendered by each executor. (1.) This charge is clearly inconsistent with the decision that the sworn account of the executors could not be given in evidence, to show what services each executor rendered in the administration of the estate. (2.) It is clear the judge held the surrogate's decree conclusive, both as to the amount of the commissions and as to the services rendered by them respectively. This is erroneous. (2 Selden, 216, 221.) (3.) It is also perfectly evident that the decree did not intend to settle the rights between the executors. (4.) The decree cannot legitimately have any such effect given to it. IV. The judge's charge was incorrect, in stating to the jury that the plaintiff, as co-executor, was not equally responsible with the defendant for all sums of money received by the defendant, for the estate. (2 Wms. on Ex'rs, 1119, 1120.) White v. Bullock. V. The judge should, as requested, have charged the jury that an executor was always accountable for money received by his co-executor, if he aids or assents to it being received by the co-executor, or if it be in his power to prevent him from receiving it. J. N. Platt, for the defendant. I. The great point in the case is, whether White, who did nothing over and above being engaged with Bullock in receiving and paying 121 dollars, is to receive one half of the commissions on what Bullock received and paid over, without having expended any labor thereon, or incurred any liability therefor, or received or paid over any part of it. The judge decided this point correctly when he charged "that amount must be divided between them in proportion to the services rendered by each executor." This charge was too much in favor of the plaintiff, because the surrogate, by his decree, had decreed that Mr. Bullock should retain these commissions. But laying this decree out of view, the judge was right in his law, and he is supported by the following cases: The statute (2 R. S. p. 93, § 58) provides for the executor's commissions-not for services or responsibilities, but for moneys received and paid over, whatever may be the equities or justice of the case, or the labors of the executors; he or they receive nothing but for moneys passing through their hands. Let us examine the law on this subject. The revised statutes do not create the right to commissions, they merely put the law in a legislative form. Laws of 1817, p. 292, directed the chancellor to fix the rate. 3 John. Ch. p. 630, fixes the rate. 2 R. S. p. 9, § 58 adopts it. Pride, 1 Dev. Eq. 269. 2 Barb. Ch. Rep. 438. Surrogate, p. 227.) (Grant v. Dayton's II. With the exception of the 121 dollars, all the business was done by, and all the moneys were received and paid over by the defendant. The decree says all the assets are chargeable to R. Bullock, and are $10,233.59. All payments were made by him, and are $4,777.67, leaving him chargeable with $5,807.78, out White v. Bullock. of which he is directed to retain the executor's commissions, and pay various creditors, including himself. III. The judge was correct in ruling out the petition. The decree, which was final, adjudicated the rights of the parties, and the object of introducing the petition is to contradict the decree, and therefore clearly inadmissible. But on examination the petition does not contradict the decree, and is entirely consistent with it. It is a joint accounting, but neither meant to charge the other with more than he or she had received. IV. The judge's charge is correct, and is too broadly in favor of plaintiff, as the plaintiff was only entitled to commissions on moneys which had passed through his hands; he was entitled to nothing for personal or other services. V. The exception at folio 150, to that part of the charge in which the judge stated that the plaintiff was not equally responsible with the defendant, for all sums of money received by the latter for the estate, merely from his being a co-executor, is bad, as by the case of Bogert v. Hertell, (4 Hill, 492,) and is irrelevant to the issue. VI. The exception at folio 151, to the refusal to charge that an executor is always accountable for moneys received by his co-executor, if he aids or assents to its being received by him, or it is in his power to prevent his co-executor receiving it, was manifestly too broad, and it is immaterial to the case and facts. 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 |