¶1By section 23 of 2 Revised Statutes, 88, it is provided that any one or more of the executors or administrators named in any letters, on the neglect of the others, may return an inventory, and those so neglecting shall not thereafter interfere with the administration, or have any power over the personal estate of the deceased, but the executor or administrator so returning an inventory, shall have the whole administration, until the delinquent return and verify an inventory agreeably to the provisions of this article.
¶2- By section 58 (2 Statutes at Large 95,) it is provided that on the settlement of an account of an executor, &c., the Surrogate shall allow to him for Ms services, for receiving, and paying out all sums of money, &c.
¶3Under these provisions of the -statute it seems to me that no allowance of commissions for a delinquent executor who has not accounted should be made; for I am not prepared to hold that because an executor is obstructed in the performance of his duty as such, he should abandon his duty altogether, nor is it to be tolerated, that an executor shall be compensated for duties obviously neglected.
¶4*250Under the circumstances of this case, if Mr. Eoberts was obstructed as he sets forth in his affidavit, and he believed that the inventory filed by the other co-executors was false, he was vested with full power to take proceedings and enforce a correct and full inventory, and for that purpose might have invoked the authority of the Surrogate; and if that inventory should not be acquiesced in, signed, or verified by his co-executors, nevertheless it would have been an inventory of the estate, and his duty as executor have been performed.
¶5The same may be said in respect to any other duty of Mr. Eoberts as executor, and it is unreasonable to suppose that he performed his duty as such executor, by merely protesting against what was done by his associates. If they neglected their duty to the estate, it was his duty to enforce the lawful performance of it on their part, as well as to perform it himself; and omitting to do it, he is clearly a delinquent executor.
¶6It is urged on behalf of Mr. Eoberts that the statute of 1863 authorizes an allowance to him of the commissions irrespective of what he has done, without regard to the services rendered by him, and he cites the case of Vannest (1 Tucker, 130).
¶7The language of that case is quite too broad, for the statute itself provides that each and every of such executors in cases where estates amount to more than $100,000, shall be entitled to, and shall be allowed, the full amount of compensation, to which he would have been, entitled by the provisions of that Act, if he had been sole executor or administrator.
¶8If he had been sole executor, and had not received or paid out any of the sums of money belonging to the estate, but had neglected to perform his duty as executor, it is quite clear he would not have been entitledjbo commissions.
¶9*251His failure to present any account of the proceedings, or join in the accounting, and inasmuch as he neither received nor disbursed the property of the estate, nor took any proceedings in its distribution, or payment of legacies, he has forfeited all right to commissions.
¶10As Mr. Boberts is only interested in the question of commissions, the specific legacies having been fully paid together with all the debts of the estate, and the executor, Joseph Eager, having become the owner of the residuum by purchase, Mr. Boberts has no standing to object to the correctness of the account as rendered.
¶11Decree entered accordingly.