devastavit, they are jointly liable for the loss occasioned, and the sureties on the bonds of each are liable to the extent that the principal is liable.se Where coexecutors give a joint bond, the liability of each, in the absence of wrongdoing or negligence, depends upon the wording of the bond. Under the usual conditions of a joint bond, the executors are jointly liable for the proper administration of all of the assets of the estate, irrespective of whether or not the one sought to be charged for the wrongs of another ever had possession of the assets misappropriated or had contributed, directly or indirectly, to any wrongful act. Under such a bond the executors are usually jointly and severally liable for their own acts and for the acts of the others.87 The language of the bond, however, fixes the liability, and the wording of the bond may impose separate liability only, so that one executor does not become surety for the others.88 The same rules

86 Grundy v. Drye, 104 Ky. 825, 48 S. W. 155, 49 S. W. 469; Fisher v. Skillman's Exrs., 18 N. J. Eq. 229.

87 Pearson V. Darrington, 32 Ala. 227; Hinson v. Williamson, 74 Ala. 180; Babcock v. Hubbard, 2 Conn. 536; Collins v. Carlisle's Heirs, 7 B. Mon. (46 Ky.) 13; Jeffries v. Lawson, 39 Miss. 791; Newton v. Newton, 53 N. H. 537; State v. Hyman, 72 N. C. 22; Lucas v. Curry's Exrs., 2 Bailey (S. C.) 403; Jamison v. Lillard, 12 Lea (Tenn.) 690; Caskie's Exrs. v. Harrison, 76 Va. 85; Hooper v. Hooper, 29 W. Va. 276, 1 S. E. 280.

88 See, generally, Hinson Williamson, 74 Ala. 180; Knapp

v. Hanford, 7 Conn. 132, 138; Lancaster v. Lewis, 93 Ga. 727; Towne v. Ammidown, 20 Pick. (Mass.) 535; Bassett v. Granger, 136 Mass. 174; Newton v. Newton, 53 N. H. 537; State v. Hyman, 72 N. C. 22; Lucas v. Curry's Exrs., 2 Bailey (S. C.) 403; Jamison v. Lillard, 12 Lea (Tenn.) 690; Probate Court v. May, 52 Vt. 182; Caskie's Exrs. v. Harrison, 76 Va. 85.

In New York and in Indiana the rule is that although a bond may be general, executors are not sureties for each other, but are jointly liable only for their joint acts. See State v. Wyant, 67 Ind. 25; Nanz v. Oakley, 120 N. Y. 84, 9 L. R. A. 223, 24 N. E. 306.

apply where the bond is joint and several.89 If separate bonds are given, no executor is liable for devastavit by a coexecutor unless he contributes to it.00

Where executors are jointly liable and one has been compelled to pay more than his share of such joint liability, he may enforce contribution from the others liable with himself.91 But contribution can not be enforced in the suit against the executors guilty of the wrong; the judgment will be against them jointly and thereafter, if one is compelled to pay more than his share, he may seek contribution from the others.92

§1531. Release of One Executor from Liability.

It is within the power of persons interested in the estate to release an executor from liability to account to them for assets which had been in his possession or to release him from any liability due solely to themselves.93 And they may do this even though there are more executors than one, for inasmuch as the obligations of coexecutors

89 Ames V. Armstrong, 106 Mass. 15; Boyd v. Boyd, 1 Watts (Pa.) 365; Probate Court v. May, 52 Vt. 182.

90 McKim v. Aulbach, 130 Mass. 481, 39 Am. Rep. 470.

91 Marsh v. Harrington, 18 Vt. 150. See, also, Dobyns v. McGovern, 15 Mo. 662.

Where four executors gave a joint bond conditioned upon the faithful administration of the estate, and two of them became insolvent, and one of the remaining executors was compelled to pay the loss occasioned by the devastavit of one of the insolvent

arise from their contract and are several, the release of one executor does not release the other."4

1532. Division of Commissions Among Coexecutors. Where the estate is administered by more than one representative, the rule is, in the absence of specific directions in the will with regard to compensation of executors, that all of the personal representatives are entitled to no more for their services than would be the regular compensation had one only been appointed. The number of executors or administrators has no effect as to the total amount of compensation to be allowed.95 The court makes its allowance for the trouble and labor of administering the estate. If the labor of the representatives has been unequal, they should do justice among themselves by assigning to each a share of the total allowance proportionally to his labor, or they may divide it equally, that being a matter of their own concern.98 In some jurisdictions, however, the probate court may apportion the commissions among the executors or administrators according to the services which they have rendered.97 Such commissions need not necessarily be equal and are not ascertained by any established rule of law, but by principles of equity.98 The probate court, in its discretion, should

94 In re Sanderson, 74 Cal. 199, 15 Pac. 753.

95 Phillips v. Richardson, 4 J. J. Marsh (Ky.) 212.

96 Aston's Estate, 5 Whart. (Pa.) 228. See In re Saunder's Estate, 77 Misc. Rep. 54, 137 N. Y. Supp. 438.

97 In New York, Code Civ. Pro., § 2730, the surrogate must appor

tion the commissions among the coexecutors or coadministrators according to the services rendered by them respectively.

98 Hope v. Jones, 24 Cal. 89. Where one dies after the estate has been settled, only the final accounting remaining to be performed, one-half of the commissions will be allowed to the

apportion to each representative a commission in proportion to the labor he has performed," and its action will not be disturbed on appeal where no abuse of discretion appears.1

Where two executors are appointed by the will of a decedent and the will provides that one of the executors shall not be allowed any commissions because of provisions made for him in the will, the other executor is entitled to receive only one-half of the maximum commissions. But if the executor who is not entitled to commissions fails to qualify, the remaining executor who qualifies and administers the estate is entitled to the total commissions.3

2

§1533. The Same Subject.

The authorities are conflicting as to whether the commissions should be divided where all the services have been performed by but one of the executors or administrators. In some jurisdictions the rule is that the administrator or executor who performs all the services is entitled to all the commissions. In other jurisdictions,

estate of the deceased coexecu

tor. Crothers v. Crothers, 123 Md. 603, 91 Atl. 691.

99 Estate of Carter, 132 Cal. 113, 64 Pac. 123, 484.

1 Estate of Dudley, 123 Cal. 256, 55 Pac. 897.

2 Lee v. Lee, 6 Gill & J. (Md.) 316. See, also, succession of Edwards, 34 La. Ann. 216.

Where the will fixes the compensation of several executors and one of them dies after having qualified, his estate is entitled to full compensation, for

it must be presumed that the testator had in mind the possibility that death might reduce the number of executors, and that he considered such a contingency when he fixed the compensation of each. In re Sweatman's Estate, 223 Pa. 552, 72 Atl. 895.

3 Succession of Bodenheimer, 35 La. Ann. 1034.

4 Ex parte Hilton, 64 S. C. 201, 92 Am. St. Rep. 800, 41 S. E. 978; Claycomb's Legatees V. Claycomb's Exr., 10 Gratt. (Va.) 589.

5

when an allowance of a gross sum has been made to the executors or administrators as compensation for their services, it must be equally divided, and one can not retain the whole sum because the others have rendered no services. In order that he may receive the greater part or all of the commissions, the representative who has performed the greater part of the work should apply to the court for an allowance proportional with his labors, but he can not retain it without a court order."

Joint executors or administrators may agree among themselves as to the proportion each shall receive as his commission. This agreement may provide for an unequal division, or that one shall have the whole." Generally such an agreement can not be considered upon final accounting, but must be settled between themselves by hearing and adjudication at another time in another and separate proceeding. Where one representative claims that there was an express agreement concerning the proportion of the commissions to be allowed each and it is denied by his corepresentative, the burden of proof is upon the one who alleges the agreement. The responsibility incurred in pursuance of such an agreement is a sufficient consideration to support it, and whether or not there was such an agreement is a question of fact for the jury.9

5 Richardson's Admrs. v. Stansbury, 4 Harr. & J. (Md.) 275; Schoeneich v. Reed, 8 Mo. App. 356; Smart v. Fisher, 7 Mo. 580. 6 Smart v. Fisher, 7 Mo. 580.

7 Brown v. Stewart, 4 Md. Ch. 368.

8 Estate of Carter, 132 Cal. 113, 64 Pac. 123, 484.

9 John v. John, 122 Pa. St. 107, 15 Atl. 675.