85 Sickels 514Blood v. . Kane (1892)
<p>An executor, as such, takes the unqualified legal title to all personalty not specifically bequeathed, and a qualified legal title to that which is so bequeathed, and holds as trustee for the benefit of, first, his testator's creditors; second, of the distributees under his will, or, if the whole is not bequeathed, under the Statute of Distributions.</p> <p>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; when they are paid, that estate sinks into and is merged with the beneficial interest and he as devisee and legatee becomes vested with the legal title.</p> <p>Upon proof, therefore, that all the debts of the testator have been paid, an executor, who is sole legatee, may avail himself of a chose in action belonging to the estate, as a counter-claim in an action against him.</p> <p>In an action by an undertaker to recover articles furnished and services performed in the burial of defendant’s testator, defendant set up as a counter-claim an indebtedness of plaintiff to her testator, which was greater than the amount in suit, and asked for judgment for the excess. Defendant was the sole legatee and devisee under, and executrix of, the will. It was admitted that no notice to creditors to present claims had been published. Defendant testified that her testator owed very few debts when he died, and that she had paid those debts. She then offered to prove the counter-claim. The evidence was rejected, the referee ruling that the testator’s claim was not available as a counter-claim or set-off. Held (Bradley and Parker, JJ., dissenting), error; that defendant was entitled to show, by common-law evidence, that all the testator’s debts had been paid, and, having established that fact, was entitled to have the amount of plaintiff’s indebtedness allowed as a counter-claim.</p>
