
    John J. Huyler, as Executor, etc., of Luther R. Marsh, Deceased, Appellant, v. Robert H. Dolson and Edward E. Conkling, as Surviving Executors, etc., of Clarissa J. Huyler, Deceased, Respondents.
    (Nos. 1 & 2.)
    
      When equity will refuse to one in a representative capacity relief which it would deny to-him in his individual capacity in the absence of proof that there are no creditors relief from fraud will not be refused to an executor and sole legatee because he participated in the-fraud on his decedent —presumption- as to the existence of creditors. -
    
    One may not in equity, where he is alone to he benefited, obtain to his exclusive use, by invoking a representative capacity, what he would not be entitled to in his individual capacity.
    Where the executor and sole legatee under a will brings, in his capacity as executor, an action to set aside as fraudulent various assignments of personal property executed by his testator, to the defendants’ testator, relief will not be denied to the plaintiff on the ground that he himself participated in the fraud unless the defendants show that there are no unpaid creditors of the' plaintiff’s testator, and hence that the plaintiff is alone interested in setting á'side-the transfers.”
    In such a case a presumption exists, until it is rebutted by the defendants, that there are creditors for whom the plaintiff executor holds the personalty of his decedent’s estate in trust.
    Appeal by the plaintiff, John J. Huyler, as executor, etc., off Luther R. Marsh, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office'of. the clerk of the county of 'Orange on the 25fh day of ; January, 1904, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the plaintiff’s complaint..
    
      William, Vanamee [George H. Decker, Vanamee & Vail and Finn & Finn with him on the brief], for the appellant.
    
      Thomas Watts [John J. Beattie with him on the brief], for the respondents.
   Hooker, J.:

This action is a consolidation of four separate actions brought to declare void for fraud as many transfers off policies of insurance upon the life of Luther R. Marsh, plaintiff’s testator, made by him to Clarissa J. Huyler, testatrix of the defendants. As to the perpetration of the fraud we are in hearty accord with .the views of the learned court below, which remarked at. the close of the trial that the evidence is overwhelming that the assignments were obtained by the testatrix of the defendants by the grossest and . wickedest of fraud. Among, the findings is to be found' this: “ That the said assignments of said insurance policies on the life of said Luther R. Marsh were procured by said Clarissa J. Huyler by gross fraud and misrepresentation.”

Clarissa J." Huyler was the wife/ff the plaintiff and they lived together; Luther R.- Marsh resided in . their household for some years prior to his death. ■ Mrs. Huyler pretended to be a spiritualistic medium in whom Mr. Marsh believed and whose every sugges- , tian lie followed so long as she. made it .appear to come through her from certain spirits. Mrs. Huyler died in April,. 1901, and Mr: Marsh thereafter commenced actions, which, with others, were later ■consolidated into the one at bar, to obtain relief avoiding the transfers by him to her in her lifetime of the policies in question. In December, 1902, Mr. Marsh died, leaving a last will and testament, later duly probated, in and by which he left to John J. Huyler, the widower of Clarissa J. Huyler, his whole estate, making him thereby his sole legatee and sole executor. It does not appear by the evidence -of either party whether there are any creditors of the estate of Luther R. Marsh,'deceased. The finding that the plaintiff is the only person interested in the recovery herein is wholly unsupported by any evidence of want of creditors of the estate of the deceased Marsh.

The learned trial court found “ that the said John J. Huyler was not a believer in spiritualism and well knew that the statements and .pretensions of his said wife were wholly false and Were made for the purpose of defrUuditig the said Marsh and to secure from him for the benefit of the said Clarissa J. Huyler and her said husband money and property belonging to the said Luther R. Marsh,” and that the plaintiff was present when his wife fraudulently obtained the assignments of the policies from Mr. Marsh. And in its remarks at the close of the case it said: But the evidence is overwhelming that they were obtained by the grossest and wickedest of frauds. This plaintiff was a party to it; a consénting party to it. He was just as much one of the perpetrators of it as his wife was, and as he is. the person to be benefited by the success of this action a court of equity washes its hands of it.” The court has said that even though the assignments were obtained by fraud and had no legal life and even though .the plaintiff sués in his representative capacity as executor under the will of the deceased assignor, yet the action to annul the assignments may not be maintained, for the plaintiff alone will benefit by a judgment in his favor. We hold the view that the burden was upon the defendants to show that the plaintiff alone would be entitled to the benefit of such a judgment and that the mere evidence of the contents of Mr. Marsh’s will that the plaintiff was his sole legatee was not sufficient, and that because of the failure to sustain that burden the defendants have not avoided the consequences of. the dual capacity of the plaintiff, the one as trustee and the other as an individual legatee, in the former of which he sues.

Redfíeld says : “ The whole personal estate of the deceased, both by law and in equity, including debts, accounts, things in action and every species of personal' property, not expressly excepted by the statute, vests in the executor or administrator. He alone is.-entitled to represent the deceased in respect of his personal property, and he.has the same right to the possession of the estate as the decedent-would have if living, and the same remedies for its recovery and protection.” (Redf. Surr. [6th ed.] § 528.) Dayton says: “As representative of the deceased, it has been seen, he (the executor) has the same property in the effects as the principal had when living; he has also the same remedies to recover them.” (Dayt. Suit.. [3d ed.] 288.) Chief Judge Follett says: “An executor, as such, tabes 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 will, or if hot all.bequeathed, under the Statute of Distributions.” (Blood v. Kane, 130 N. Y. 514, 517.)

It is doubtless true that one may not, in equity, where he alone is to be benefited, obtain to his exclusive use, by invoking in a representative capacity, what he would not be entitled to in his individual capacity. This principle seems to underlie the decision in Woodbridge v. Bockes (170 N. Y. 596), where, in denying the plaintiff’s right to an accounting by the defendant, the .court says (p. 602),: “ It is true that the plaintiff is suing in her capacity as trustee, alone; but the court will look through the form of the proceeding, at the substance of thé matter. It will consider whether the facts disclosed are such as to justify her, in any aspect, in appealing to the exercise of its equitable powers. * * * What right" has she to call him to account? By an impersonal right? But that means-that notwithstanding her complicity in the course which has led to this result, if disastrous to the trust, she may be recognized in her assumed office of trustee and may be accorded a right, which, personally, she has forfeited, morally as well as legally. That cannot be. However separate the office and the individual, a court of. equity cannot, and should not, grant to the former what the incumbent is unfit to be trusted with. Herein is the flaw, which deprives the plaintiff’s assertion of an equitable right of any force.”

The question, then, resolves itself into this, in the absence of proof whether Mr. Marsh left any debts, on whom is the burden cast,, on the plaintiff to show that there are creditors, and hence that he is not the sole beneficiary in the estate, or on the defendants to show that there are none, and hence the plaintiff is alóñe interested % It is said in the Blood Case (supra, 518): “ This conclusión 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.” And again (p. 519): “ 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.” Under the principles to which we have adverted, it seems to' be taken for granted that one who acts as trustee has a trust, in reality^ to perform; and that one who assumes to act as executor is -presumed to hold in trust for creditors and legateés. The will of Mr. Marsh makes it clear that there are no legatees for whom the plaintiff may hold the estate in trust, for he himself is the sole legatee ; but not so as to the creditors. Until it is rebutted the presumption is that there are creditors for whom the executor or administrator holds the personalty of the estate in trust. During the whole progress of the Blood Case (supra), and in the decision in the Court of Appeals itself, this rule seems to have been supposed to exist; for it was not considered that the defendant, sued individually, could offset a debt owing by the plaintiff to the estate of which she was executor and sole legatee, until proof was made that all of the debts of her testator had been paid. The defendants have failed to make any showing sufficient to deprive him of the right to maintain the action, which plaintiff possessed by virtue- of his representative character, and the judgment should be reversed and a new tidal granted.

Bartlett, Woodward and Jenks, JJ., concurred ; Hi-rsohberg, P. J., concurred in result.

Judgment reversed and new trial granted, costs to abide the final award of costs. ' ' .  