The claim of the executors for commissions on the $80,000 in question cannot be sustained. They neither, in fact, received that sum of money, nor paid it out. It was a mere matter of figuring that devolved upon them. What happened was a computation of balances, and the process was one of account, rather than the receipt and payment of money. To allow commissions upon this class of items would be to give them upon receipts and disbursements having only a constructive and not an actual existence (Attorney-General v.. North Am. Life Ins. Co., 89 N. Y, 94-105).
As to the question of the proper division of the commissions among the executors, it may be remarked that the direction contained in the will, in that respect, follows almost the exact language of the statute on the subject. That statute provides that: “ on the settlement of an 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: for receiving and paying out all sums of money, ” etc.
Can this court award commissions, therefore, to an ex*362ecutor or administrator for services unless he has received and paid out moneys of the estate?
Suppose a case where the will contains nothing but specific bequests of assets other than money, and suppose such bequests amount, in value, to ten thousand dollars, and that the executor, in the discharge of his duties, encounters various litigations to obtain possession of the property bequeathed, in order that he may fulfil his duty by delivering it to the legatees, as he can have no commissions on such assets so specifically bequeathed, because they are not money received and paid out (Schenck v. Dart, 22 N. Y., 420), yet he could get no compensation for his mere services, however meritorious and beneficial to the estate. Again, suppose a case where the whole and sole subject of the will is $100,000, in bank, which the executor is directed to divide and pay equally to three legatees. For performing that simple, duty, he would be entitled to $1,000, and upwards. In the one case, no compensation is received for great services rendered, and, in the other, a large one for very small services. But as it was impossible to fix rules adequate to the exigencies of every conceivable case, some general one was established, that should be approximately just on the whole. So, in reference to the division of the commissions among several executors, I think the intention of the statute was to make the sums called commissions compensation, not for the service of receiving and paying, but for the whole service measured by a fixed standard (Collier v. Munn, 41 N. Y, 143). Hence, where there are two executors, one of whom has rendered services only in receiving and paying out $50,000, and the other has rendered equal services in some other *363way, in the discharge of his proper duties, without having received or paid any of the fund, each would be entitled to one half of the commissions c< according to the services rendered by them respectively.” Thus, the compensation is not only for receiving and paying money, but for all services rendered by any or all of several executors, according to the services rendered by each. Having reached this conclusion, the next question is, what proportion of the commissions, assuming them to amount in the aggregate to $10,000 or $12,000, should be allotted to Mr. Hill; there being no question presented as between the other executors; so that I shall assume the division between them to be made equal, or otherwise, as they may arrange.
Here is a very voluminous account, containing, I should estimate, in the neighborhood of eight to ten thousand items of moneys received and paid out by the executors other than Mr. Hill, who admits that he neither received nor paid out any. The thought, the care, the labor and responsibility of all this work, relating to an estate of over $400,000 of personal property, extending through a period of ten years, invested in various securities, and reinvested again and again, scattered over a great extent of country, and applying the income to the purposes directed by the will, and this income, with other items, swelling the whole amountto nearly one million,—must necessarily have been very great, and consumed much time." Thomas Nelson testifies that one third of his time, for a period of ten years, was devoted to this.work.
Mr. Hill, on several occasions, had brief consultations with the other executors, aided in laying out streets, in the sale of a few village lots situated in the vicinity of *364his residence, some of which sales were due to his agency, and was occasionally consulted by one or the other of his colleagues, and on one occasion, when he went to the West in search of health, took occasion to look at some property there on which the executors held mortgages, and at some property in Milwaukee in which the estate was interested. In all of these acts of his, relating to the laying out of streets, and the sales of the village lots, the other executors took, more or less, a part, and as to the western trip no apparent cause for an examination in relation to investments there is shown, and no appreciable results followed, and on account of which he makes no charge for expenses; nor, indeed, has he presented, in this proceeding, a single item of expenditure for allowance. It is quite apparent that the services of Mr.. Hill, as compared with the vast labors of the other executors, are very small. In my judgment, they will scarcely bear the proportion of one to fifty—nay, of one to a hundred. If the fragments of time spent by him about the affairs of the estate, aside from the western trip, were susceptible of condensation, I think they would all be contained within the limits of one week, and it is not claimed that the services rendered were of any remarkable or immense value.
It was sought to be shown that Thomas Nelson had kept his accounts in so irregular a form that it cost much labor and expense to reach a result, and it seemed to be claimed that the amount of his commissions should, therefore, be diminished. It is not claimed that he had not charged himself with all he had received, or had credited himself with what he had not paid. I know of no rule which would deprive an executor of commissions *365because of the labor or expense requisite to put his accounts into an intelligible form.
On the whole. I allow to Mr. Hill $250 of the commissions, deeming that a liberal allowance for his services, when contrasted with the services rendered by his colleagues.
It is a little remarkable that this is the first case, during my official life of upwards of twelve years, in which the testimony of witnesses has been taken, in reference to the division of commissions among co-executors. Such questions have arisen frequently, but upon suggestion made, the parties have uniformly agreed upon an adjustment, and I regret that it could not have been done in this instance.
The stenographer’s fees should be paid out of the commissions, Mr. Hill’s portiqn bearing its pro rata share. The controversy about the division of them concerns the executors only. Other than that, I do not regard it as a case for the allowance of costs.
Decreed accordingly.