Merwin, J. The plaintiff in her complaint alleged, and at the close of the trial requested the court to And, in substance, that just before the probate of the will it was agreed between Fletcher and the defendant that Fletcher should not qualify, but that defendant should perform all the duties of executor and trustee, and Fletcher should have one-half the residue, just the same as if he qualified and acted, and that by reason of this agreement Fletcher failed to qualify. This the court refused to find.
The appellant claims that in this refusal the court erred; Upon this subject, the main evidence on the part of the plaintiff was that of the witness Cole, who testified to overhearing a conversation, or part of one, between the defendant and Fletcher, and that after-wards, on several occasions, the defendant admitted the existence of such an agreement.
This is denied by the defendant, and there is evidence on the part of defendant that Fletcher, some time after the probate, stated that he had no interest in the estate. The relations between' the witness Cole and the defendant were somewhat peculiar, and the weight to be given to the evidence of Cole was for the trial court to determine. There was no such preponderance in favor of the existence of such an agreement as would call upon this court to interfere.
The appellant lays great stress upon the circumstance that the residuary fund was and is a large one. That, the case does not show. The plaintiff in her complaint alleges that there is due the estate of her intestate the sum of $10,000 or thereabouts. This is in terms denied in the answer. Upon the trial it was conceded by the defendant that there was something over and above the legacies. The amount was hot stated or proved.
The defendant, upon the examination of the plaintiff, testified that an inventory was made, but not filed. He was not asked what the amount was. We must therefore assume that the court correctly declined to find the existence of any agreement between defendant and Fletcher. That being so, the plaintiff must stand upon the terms of the will, supplemented by the finding of the court as to the circumstances under which Fletcher failed to qualify.
The residuary bequest is “to my said executors, to be divided equally between them, in lieu of compensation for their services in the execution of their trust. ” This bequest is to the executors in their character as such, (Morris v. Kent, 2 Edw. Ch. 177,) and it stands as compensation for services which they would not be in a position to perform until they qualified. If both qualify, then the expression, “to be divided equally between them,” regulates the manner of division.
There was no severance before qualification. If only one qualifies, and the other is not in a position to perform any duties, and does not perform any, can it be said that the testator in that event intended, by the use of the expression above quoted, to provide that the one not so qualifying should still have the one-half? That would convert a bequest in compensation for services into an absolute individual gift. There is nothing in the will that indicates that such was the intention.
Knight v. Gould, 2 Mylne & K. 295. There is no evidence of the amount of the estate at the 390 time the will was made. We cannot assume that the residue was supposed to be any more than fairly to compensate the party or parties who should actually perform the duties. The will imposed certain duties, and provided compensation for such duties. The benefit is to be received by the party bearing the burden.
But it is urged that the rule that a legacy to an executor, as such, cannot be taken unless he qualifies, does not apply to a bequest of a residue, and the case of Griffiths v. Pruen, 11 Sim. 202, is mainly relied on for this proposition.
In that case the bequest was as follows: “To my friend Mr. Thomas Griffiths, who is likewise my executor, any sum then appearing, after the contents of this, my will, are fully complied with and fulfilled.” Very clearly that was not a case where the gift was to executors as such, as compensation for official duties. In Scofield v. St. John, 65 How. Pr. 292, a legacy was given to each executor in addition to commissions. There was no question between co-exeeutols.
In Knight v. Gould, supra, there was a bequest of a residue “to my executors hereinafter named, to enable them to pay my debts, legacies, funeral and testamentary charges, and also to recompense them for their trouble, equally between them. ” This was followed by the appointment of three persons as executors. It was held ■ that the bequest was to those persons as a class in their official character, and that, therefore, one having died in the life-time of the testator, the whole residue vested in the two survivors.
It was there said by Lord Chancellor Brougham that whoever performed the duty of executors was to have the residue, and that the words “equally between them” applied only to those who performed the duty. It is further claimed that the defendant, by reason of the circumstances attending the failure of Fletcher to qualify, is estopped from saying, that the plaintiff is not entitled to Fletcher’s share because of failure to.qualify.
Upon this question we must assume, as found in the court below, that Fletcher was willing to act, that the defendant made opposition to his qualifying, and that by reason of such opposition, and the opposition of the legatee George D. Dailey, Fletcher was induced not to qualify. The opposition was apparently based on the unfitness of Fletcher to become executor, at least without giving security. No fraud or duress on the part of defendant is found. .It is not shown that the opposition was not well founded.
If Fletcher was not a proper man for executor, it was the duty of the defendant to oppose his appointment, and see to it that the trust-estate was properly protected. That the defendant on this "line did anything more than his duty is not shown. If he did not, there is no basis for saying that there was any duress. McPherson v. Cox, 86 N. Y. 473; Scudder v. Burrows, 7 N. Y. St. Rep. 613.
The failure of Fletcher to apply for letters must be deemed to have been his voluntary act, and there would be no foundation for applying the doctrine of estoppel. Many authorities are cited by the counsel for the appellant on the question of waiver of conditions in the performance of contracts. They do not apply here. There is no contract here between the defendant and Fletcher. The defendant and the legatees had a right to object to the issuing of letters to Fletcher.
Upon the validity of those objections it was for the surrogate’s court to decide. The failure of Fletcher to apply, after such objection was made, amounted to an acquiescence for the time being in the validity of the objection, and, in the absence of any agreement between him and defendant, or any fraud or duress, he would have no right to say that he could receive compensation as executor the same as if letters had been issued to him.
It follows that the special term correctly decided that the plaintiff had no right to compel the defendant to account, and had no claim against defendant for any share of the residue of the estate. Judgment affirmed, with costs. All concur.
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