Bussing and others agt. Thompson. depositary had failed, nor from his promise to pay interest, until payment of the principal should be demanded and made. A person cannot be said to have received money in a fiduciary capacity, who receives it upon an agreement that he may use it in his own business and for his own purposes, and shall become a debtor for the amount, and shall pay interest at a stipulated rate, to be ascertained and struck, at times and from time to time, and in a manner previously agreed upon. The defendant received the draft on the 15th of August, on an agreement to collect it, and that he might use the proceeds. Being solvent then, and not then contemplating insolvency, the agreement existing at the time he received it, and which determined his duties and rights, gave him authority to collect the draft, and use the proceeds in his own business. We cannot accede to the proposition that his failure on the 25th, connected with knowledge on the 24th, that he had become insolvent, and the conclusion arrived at on the morning of the 25th, that he must fail, annulled the agreement under which the draft had been received on the 15th, and converted the defendant into a trustee of the plaintiffs, divested of all power or authority to use the proceeds, as it was agreed he might do, when he received the draft, and undertook to collect it. The money, therefore, was not received in a fiduciary capacity. The use made of it was authorized by the agreement under which the draft was received, which agreement had been acted upon nearly two years, and under which the defendant had received and collected moneys for which he had made himself the plaintiff's debtor, to more than $300,000 in the aggregate. The relation between the parties was that of debtor and creditor, and not that of trustee and cestui que trust. There was no conversion of the moneys to the defendant's use, wrongful, in judgment of law. There was no fraud in contracting the debt or incurring the obligation for which this action is brought. The obligation was incurred and was complete when the draft was received. It was received in good faith, under an agreement subsisting at the time, which covered the whole matter of collecting the Bussing and others agt. Thompson. draft, the disposition of the proceeds, and prescribing the time when the amount should be paid to the plaintiffs, and the interest to be allowed by the defendant for the use of it, until payment should be made. The defendant has done whatever he has done, down to and including the collection of the draft and the use of the money, as the plaintiff's agreed he might do. His right to use it, and his liability to pay interest, resulted from the agreement under which the draft was received. And the state of things then existing must be looked at to determine whether the defendant's liability was fraudulently incurred, as he has conformed in all respects to his agreement, except to pay the money when the plaintiffs demanded it. Being a mere debtor for the amount, it cannot be said that he was guilty of a fraud in contracting the debt, when there is no just pretence for saying that he was guilty of any fraud or bad faith, in making the agreement under which he received the draft, without he received it under such agreement, knowing or suspecting that he would not be able to perform it. So far as the actual intent of the defendant in any part of the transaction is involved or is material, there is no reason to conclude that he personally knew of the receipt or collection of the draft, until after his business was suspended. And it may also be observed that, as to the item of $199, which was remitted in the same letter with the $4,000 draft, no point is made in the affidavits, that the liability of Thompson for that, is one in respect to which the right to hold him to bail exists. We are of the opinion, that upon the facts established by the affidavits, on which the order appealed from was made, the defendant did not "wrongfully convert the property of the plaintiffs." That he was not acting "in a fiduciary capacity," in collecting the draft and receiving the amount of it. That he was not "guilty of a fraud in contracting the debt or incurring the obligation for which this action is brought," White agt. Bullock. or in "disposing of the property," the proceeds of the draft, which it is alleged he has converted to his own use. Unless some one of these facts have been established, it is not claimed that any ground has been shown to exist, which, by the Code, gives the right to hold the defendant to bail. The order must, therefore, be affirmed. COURT OF APPEALS. CHARLES L. WHITE agt. ROBERT BULLOCK. Before the act of 1849, to amend the Revised Statutes, relative to commissions to executors and administrators, the Revised Statutes gave the compensation to the executors in general terms, without providing for any apportionment among them upon equitable principles. Consequently, where 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. And it is doubtful 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. By the act of 1849, which now governs this matter, it is provided that, "on the settlement of the account of an executor or administrator, the surrogate shall allow to him for his services, and if there be more than one, shall apportion among them, according to the services rendered by them respectively, over and above his or their expenses." "1. For receiving and paying out all sums of money, not exceeding one thousand dollars, at the rate of five dollars per cent." "2. For receiving and paying any sums exceeding one thousand dollars, and not amounting to five thousand dollars, at the rate of two dollars and fifty cents, per cent." "3. For all sums of above five thousand dollars, at the rate one dollar per cent.; and in all cases such allowance shall be made for their actual and necessary expenses as shall appear just and reasonable." In an action by one executor against his co-executor, for an equal proportion of the executor's commissions, where the defendant had received and paid out White agt. Bullock. nearly all the funds of the estate, as appeared by the final accounting before the surrogate, in 1848; Held, that the plaintiff was entitled to his equal half of such commissions. September Term, 1857. THE plaintiff and defendant were the executors of the will of John M. Mounsey, deceased. The plaintiff sued for onehalf of the commissions allowed by the surrogate on the formal settlement of the affairs of the deceased, contending that he was entitled to an equal half of the commissions; and the defendant, that the plaintiff had incurred no responsibility and rendered no services, except a joint liability for $121, and so was entitled to commissions only on the last sum. The plaintiff produced the decree of the surrogate, dated March 9th, 1848, on the final accounting. That expressly declared, that the executors were debited with $121, and that they were allowed $121, by payments towards funeral expenses. This was charged and credited to both executors. It was also declared that the rest of the moneys received, amounting to $10,233.59, except the above $121, were received by and debited to Bullock, the defendant, alone, and not jointly by him and his co-executor. The payments also, amounting to $4,656.66, except this sum of $121, were made by and credited to Bullock alone, and he alone was ordered to pay out the balance of the property remaining after payment of the debts, and all the commissions thereon were ordered by the surrogate to be paid to him—the inventoried effects of the personal estate. The circuit judge charged the jury, that if the surrogate's decree had passed upon the amount of commissions to be received by each executor, it would have been conclusive, if that were a matter then within his jurisdiction, as to which no opinion was expressed. But as it stated only the amount that was to be paid to both executors, that amount must be divided be tween them in proportion to services rendered by each executor; and that without any other proof of those services, it was to be determined by the amount stated by the decree to have been received and paid out by them respectively. That if it White agt. Bullock. had been proved that the plaintiff had rendered service in aid of the receipt and paying out of the $5,807.78, received by Bullock, or had become liable jointly with him for the amount or for part of it, he would have been entitled to a fair compensation for that service. The counsel of the plaintiff excepted to the charge as given. The jury after retiring, returned and asked the justice if the plaintiff was not equally responsible with the defendant for the estate. His Honor informed the jury, that the plaintiff was not so liable, merely from being a co-executor, and that there was no proof that he had done any act to make himself responsible, except as to the $121, and that the surrogate did not hold him responsible except as to that sum. To this the plaintiff's counsel excepted. The plaintiff's counsel then asked the justice to charge that an executor was always accountable for money received by his co-executor, if he aids or assents to its being received by his co-executor, or if it is in his power to prevent the executor receiving it. The justice refused the request as too broad, and the plaintiff's counsel excepted. The jury rendered a verdict for $3.50, in favor of the plaintiff. A motion for a new trial was denied, and judgment for defendant affirmed with costs, at a general term, in the first district in June, 1855. MITCHELL, CLERKE and COWLES, JustiFrom this judgment the plaintiff appealed to this court. ces. A. THOMPSON, for appellant. PLATT, GERARD & BUCKLEY, attorneys, and By the court-SELDEN, 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 |