Blood v. Kane

Follett, Ch. J. December 5, 1883, James Kane died leaving a will by which he devised and bequeathed his entire estate to his widow, the defendant, and appointed her sole executrix. On the 17th of that month the will was probated and letters testamentary issued to her. The defendant employed the plaintiff, an undertaker, to take charge of the funeral and burial of her testator, for which she agreed to pay him eighty-five dollars. In January, 1885, the plaintiff rendered other service for the defendant, of the value of ten dollars, as found by the referee. ¡November 24, 1885, this action was begun to recover those sums. The defendant set up by way of counter-claim that the plaintiff was indebted in the sum of $178.10 to her testator for services rendered by him in his lifetime. Ou the trial the defendant admitted that the surrogate’s court had made, no order directing the publication of a notice to creditors to present their claims and that no notice had been published, but testified: “James Kane owed very few debts when he died; I paid those debts. There are no debts on his books owing by him which remain unpaid that I know of.” She offered to prove the claim and asked that it be allowed: (1) as a counterclaim and that she be given a judgment for the excess ; (2) as a set off against and in extinguishment of the plaintiff’s claim for eighty-five dollars, the. agreed price for the burial of her husband. The evidence was rejected and the referee ruled that the claim which accrued to her testator was not availailable as a counterclaim nor as a set off, to which ruling an exception was taken, and which presents the only question to be reviewed. An executor as such takes the unqualified legal title of all personalty not specifically bequeathed, and a qualified legal title to that which is so bequeathed. He holds not in his own right, but as a trustee, for the benefit (1) of the creditors of the testator, and (2) of those entitled to distribution under the yill, or if not all bequeathed, under the statute of distributions. As to the chattels and choses in action specifically bequeathed, [551] an. executor has but a qualified title, the right to apply them in discharge of debts after first exhausting all other property applicable to that purpose. If he assents to their delivery to the legatees they acquire a perfect legal title to the article or demand, and in case the remaining property of the testator is insufficient to pay his debts the recipients of the specific legacies are liable under the statute to pay the amount or value of the legacies received by them. The title of one who takes the entire estate under a will stands on the same footing, and is just as absolute, and he with the assent of the executor can recover in his own name a chose in action or make it available by way of counterclaim. The trust estate of a sole executor, who is also the sole devisee .and legatee, is solely for the benefit of the testator’s creditors, and when they are paid the trust estate sinks into and is merged with the beneficial interest, and the sole devisee and legatee becomes vested with the legal title of all of the testator’s estate. Mr. Preston, in discussing this subject in his learned treatise on -conveyancing, says: (Yol. 3, 310) “ On the continuance of the privilege from merger, an observation which will be properly introduced into this place presents itself. Though a person is originally entitled to a term, or to an estate of freehold, as an executor -or administrator, yet in process of time he may become the owner of that estate in his own right This happens in the case of executors, when the executor is also residuary legatee, and he performs all the purposes of the will, and holds the estate as legatee ; or when the executor pays money of his own, to the value of the term, in discharge of the testator’s debts, and with the intention to appropriate the term to his own use in lieu of the money. And in the case of administrators, when the administrator is the only person entitled to the beneficial ownership of the intestate’s property, or procures a discharge from those who are to share that property with him, and all the debts of the intestate are paid. Under these and the like circumstances, the executor or administrator will have the estate in his own right; and when he has the estate in his own right it will be subject to merger. “ Generally speaking, it is difficult to ascertain when the character of executor or administrator ceases, and the ownership, independent of that character, commences. Every case must depend on its own circumstances. This conclusion only is certain, that when the executor or administrator ceases to hold the estate in that character, he will hold the same in his own right, and it will be subject to merger. The burthen of proof lies on the executor, or those persons who claim title under him.” This statement of the rule is quoted with approval in Williams ■on Executors (6th Am. Ed., vol. 1, 642), and at page 649, that learned author says : “As an executor, who is also a legatee, may, by assenting to his own legacy, vest the thing bequeathed in himself in the capacity of legatee, so an administrator, who is also entitled to share in the residue as one of the next of kin under the statute of distribution, may acquire a legal title, in his own right, to goods of the deceased, either by taking them by an [552] agreement with the parties entitled to share with himself under the statute or even without such agreement, by appropriating them to himself as his own share.” 3 Red. Wills (3d ed.), 131-133, § 6; Schouler Ex. and Adm., §§ 242, 246, 248 ; 2 Woerner’s Law of Adm., § 453. It has been quite recently held by the House of Lords, Cooper v. Cooper, L. R., 7 H. L., 53, that “ The rule of the statute of distributions which requires the conversion of an intestate’s estate into money is introduced simply for the benefit of creditors, and the facility of division among the next of kin. But, as regards the substantial title to property, the right of the next of kin (subject only to the claims of creditors) is complete.” It is a universal rule that when the purpose of a trust has-been fully accomplished, the title or estate of the trustee is at an end, and if he is also entitled to the beneficial estate, the two estates meeting in the same person are merged, and he becomes vested in his own right with the entire interest in the property. It follows from these views that the defendant was entitled to> show by common law evidence that all of the debts of the testator had been paid, and that fact being established the defendant, was entitled to have the sum due her testator allowed as a counterclaim. The judgment should be reversed and a new trial granted, with costs to abide event