Hope v. Jones

By the Court, Sanderson, C. J. The partnership relation does not exist between co-executors, and they have .no joint interest in the commissions allowed by law for their services in administering upon the estate. They are not each entitled to an equal share merely upon the naked ground of their relation to each other. The share to which they are respectively entitled is to be determined on entirely different considerations. In other words, their respective portions are not ascertained by any established rule of law, but upon the principles of equity. The [93]ratio of compensation and of service must be the same, or as nearly so as the circumstances of the case will permit. Each is chargeable with the full amount of the assets which may come into Ms hands, and is entitled to be credited with all disbursements legally made on behalf of the estate. Each may keep a separate account, and present the same for final settlement. They are only entitled to share and share alike where then liabilities and services have been equal. One who takes no care or charge upon himself touching the estate or any part thereof, collects no debts, makes no disbursements, and thus renders no service whatever, is not entitled to any share in the commissions.

The respondent seems to have rendered some service, and doubtless was entitled to some portion of the commissions, but he has sought his relief in the wrong forum. He should have applied to the Probate Court. If, as he contends, the allowance made to the appellant mures to his benefit, and the decree of the Probate Court does not assume to pass upon the question of apportionment, but only detenMnes the amount of the allowance, it follows that the question of apportionment was still open, and he might and should have applied to that Court for a further and supplemental decree, designating and assigning to each his proper share. Then, upon the refusal of the appellant—the money being m Ms hands—to pay over his portion, he might have mamtained tins action.

The District Court has no jurisdiction over the allowance or apportionment of the commissions of executors and administrators, and if it can interfere at all with the decree of the Probate Court, it can only do so as a Court of Chancery, and can go no further than to set aside the decree on the ground of fraud, or other like ground of equitable interference, and leave the parties to make another settlement in the Probate Court. (Searles et al. v. Scott, Administrator, etc., 14 S. & M. 94.) And it is doubtful whether it could interfere, even in such a case, unless all opportunity to move in the Probate Court to open the account, or appeal from the decree, has been lost. Until this has happened, it would seem the power