#### UNITED STATES TRUST COMPANY OF THE DISTRICT OF COLUMBIA, ADMINISTRATOR, ETC. *v.*NATIONAL SAVINGS & TRUST COMPANY OF THE DISTRICT OF COLUMBIA, ADMINISTRATOR, ETC.

Foreign Laws; Parties to Action; Decedents’ Estates; Trusts and Trustees; Evidence; Presumptions; Executors and Administrators; Decrees oe Foreign Courts; Equity.

1. In Pennsylvania, an executor, in the absence of objection by creditors, has the power to take charge of the assets of his testator’s estate, and execute the provisions of the will without administration.

2. A suit for an accounting against an alleged delinquent trustee under a will, brought after such a lapse of time after the death of the testator that it is to be presumed that all debts of the estate and all legacies have been paid, should be brought by the *cestui que trust,*and not by. the administrator of the estate.

3. A suit is maintainable by a sole legatee against an executor for an accounting after payment of the debts of the estate, without the intervention of an administrator of the testator.

4. A decision of the supreme court of Pennsylvania, where an estate was originally administered, that the sole legatee and *cestui que trust,*and not an administrator of the deceased, was the proper party to bring suit for an accounting against an executor and trustee under the will, after payment of the debts of the estate, is conclusive on this court in a similar suit by an ancillary administrator against the legal representatives of such deceased executor and trustee.

5. A court of equity here will not allow a suit to be prosecuted in the name of an ancillary administrator in order to permit the real party in interest to escape the effect of certain releases and certain judgments and decrees of his own State, in which State the matters in controversy have been already litigated.

No. 2279.

Submitted May 2, 1911.

Decided May 24, 1911.

Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, sitting as a court *297of equity, sustaining a demurrer to and dismissing a bill in equity against the administrator, widow, and heirs at law of a deceased executor and trustee, for an accounting and for an injunction.

*Affirmed.*

The Court in the opinion stated the facts as follows:

This is an appeal from a decree of the supreme court of the District of Columbia, dismissing on demurrer appellant’s bill in equity [against the National Savings *&*Trust Company of the District of Columbia, administrator of the estate of James H. Hopkins, deceased; Anna M. Hopkins, widow of James H. Hopkins, deceased; William Hopkins, James H. Hopkins, and Katherine V. Wylie *(nee*Hopkins), children and heirs-at-law of James H. Hopkins, deceased]. On sustaining the demurrer, the court gave appellant, the Hnited States Trust Company of the District of Columbia, ancillary administrator of the estate of Edward Kahm, Sr., deceased, hereafter referred to as plaintiff, twenty days in which to amend, but plaintiff refused to amend, electing to stand on its bill. Erom the decree entered this appeal was taken.

It appears from the bill that one Edward Kahm, senior, a resident of Allegheny county, Pennsylvania, died July 28, 1875. He left a last will and testament, which contained the following provision: “I hereby appoint James H. Hopkins executor of my will, and I desire that he shall not be required to register my will, nor to file any inventory or account either as executor, guardian, or trustee.” In accordance with the testator’s request, the executor took charge of the assets of the estate, without registering the will and taking out letters of administration. No objection seems to have been made by anyone to this method of procedure. Of the estate, several thousand dollars was disposed of in specific legacies, and the balance was to be divided between his two sons, Edward Kahm, Junior, and Allen R. Kahm, each to receive his share when he should attain the age of twenty-eight years, reserving, however, from the share of each of the sons, the sum of $20,000, which was *298bequeathed to James H. Hopkins, the executor, in trust, to be held “for the heirs of said son at his death, the interest of ¡said sum to be paid to said son during his life.”

Allen R. Eahm died in January, 1877, intestate and unmarried, leaving his brother, Edward Eahm, Junior, as his •sole heir and next of kin. After payment of the legacies, Edward Eahm, Junior, became the sole surviving *cestui que trust*under the will. The bill further alleges that Edward Eahm, Junior, attained the age of twenty-eight years in June, 1888, and the following year a settlement was had between him and Hopkins, the executor. In consideration of 297 shares of the capital stock of the Norfolk & Virginia’ Beach Eailway Company, and the conveyance to him of certain -real estate in Pitts-burg, valued at $10,000, Edward Eahm, Junior, executed and delivered to Hopkins a full acquittance and release of all claims •against him as executor of his father’s estate and as trustee •under the will.

In 1900, Edward Eahm, Junior, had a further settlement with Hopkins, in which Hopkins paid the sum of $250 as full •settlement of a legacy of $3,000 to which Edward Eahm, Junior, became entitled under the will by reason of the death of Louisa Eahm, a life tenant. In consideration of this settlement, Eahm executed to Hopkins another full release and acquittance of the same tenor and effect as the one above quoted.

On the 27th day of April, 1910, the plaintiff obtained ancillary letters of administration upon the estate of Edward "Eahm, Senior, and the following day filed the bill in this cause. The bill sets out specifically various alleged fraudulent acts on the part of James H. Hopkins in administering the trust assumed by him under the will without administration, in which it is alleged, among other things, that he acquired individually 497 shares of the capital stock of the Norfolk & Virginia Beach Eailway Company in exchange for property of little or no value owned by him; that his representation that the money belonging to the estate of Edward Eahm, Senior, Lad been invested in said stock was false, and that the compromises and releases were obtained from Edward Eahm, Jun*299ior, because of his belief that the money of the estate had, in fact, been invested in this stock.

*Messrs. Ralston, Siddons, & Richardson*and *Mr. A. M. Rudder*for the appellant.

*Mr. J. J. Darlington*for the appellees.

Mr. Justice Van Oksdel

delivered the opinion of the Court:

The power of an executor to take charge of the assets of his ■testator’s estate, and execute the provisions of the will without .administration, in the absence of objection by creditors, has .long been recognized in Pennsylvania. *McLean*v. *Wade,*58 Pa. 146.

It was contended on demurrer in the court belcw that Edward Rahm, Junior, is the proper party plaintiff, and it was upon this point alone that the demurrer was sustained and the •decree entered. The bill, by its silence, concedes, after the long lapse of time between the death of the testator and the bringing of this suit, that all debts against the estate and the special bequests under the will have been paid. The sole party in interest, therefore, is Edward Rahm, Junior. It will be observed that the only trust created by the will in force after ■the payment of the debts and specific legacies and the death of Allen R. Rahm is the one in favor of Edward Rahm, Junior. With the payment of the debts and legacies, the estate was fully settled, and Hopkins became simply a trustee under the will. It follows that, in such a case, an action for accounting •should be brought by the *cestui que trust.*

Even if Edward Rahm, Junior, be treated as a sole legatee seeking an accounting, the suit could properly have been brought in his name, without the intervention of an ancillary administrator. In *McLean*v. *Wade, supra,*the sole heir brought suit against the executors of her father’s estate. The court said: “We have another question, and that involves the plaintiffs’ right to sue in their own names without administration *300in a case circumstanced as this is. Undoubtedly the estate of decedent descends to his heirs at his death, subject to the claims of creditors and the laws in force for administering it. But if there he no debts, and no distribution needed, and only a solitary heir, administration would seem to be useless. In this case I see no reason why the heir may not assert her rights. Indeed, this point was decided in *Lee*v. *Gibbons,*14 Serg. & R. 105, and in *Lee v. Wright,*1 Rawle, 149. This suit was instituted by the heir some twenty-six years after the death of her father. After such a lapse of time, in the absence of any evidence to countervail it, there is a conclusive presumption of the payment of every species of debt which might have existed against the estate of her father at his decease. This being so, the authorities cited seem to settle the point in favor of the maintenance of this action, there being no creditors.”

It is for the actions of Hopkins as trustee under the will that an accounting is sought against his legal representatives. No reason is apparent why an ancillary administrator appointed more than a third of a century after the death of the testator should intervene to prosecute this action, when its only duty in case of recovery would be to turn the proceeds over to the *cestui que trust.*

A similar bill was filed in the courts of Pennsylvania by an administrator appointed for the purpose of securing an accounting from the estate of Hopkins for the same matters set up in the bill in the present case, and the court, dismissing the bill, in an opinion not reported, held that Edward Rahm, Junior, was “the only beneficial party, and without the need of an intermediary. His status to act for himself was recognized in *Rahm’s Estate,*226 Pa. 594, 75 Atl. 830. In this view it is useless to proceed further, even assuming petitioner able to prove his allegations.” This decision from a court of the State where the transactions sought to be adjudicated occurred and the estate was located is conclusive of the only question presented by this appeal.

It is unnecessary to consider the effect of the two acquittances and releases executed by Edward Bahm, Junior, in settlement *301of his claims against Hopkins. It is sufficient that the supreme court of Pennsylvania in *Rahm’s Estate, supra,*held them to constitute equitable assignments, conveying to Hopkins the corpus of the $3,000 bequest to Louisa Eahm, and inherited by Edward Eahm, Junior, on her death, and the income of the $20,000 life interest of Edward Eahm, Junior, under the will. In this situation a court of equity will not lend itself to the unnecessary subterfuge of permitting the present suit to be prosecuted in the name of an ancillary administrator, in order to permit the real party in interest to escape the effect of these releases and the judgments and decrees of his own State, where the matters in controversy have been extensively litigated.

The decree is affirmed, with costs, and it is so ordered.

*Affirmed.*