Surely, then, plaintiff could recover so much of the proceeds as equalled the premiums paid subsequent to the time of the insolvency. In re Hirsch, D.C.S.D.N.Y., 4 F. Supp. 708; In re Good-child, D.C.E.D.N.Y. 1935, 10 F. Supp. 491; Coffin v. Shour, 246 App. Div. 263, 285 N.Y.S. 197. By that authority, the Government may recover the portion of the proceeds for which the fraudulent premiums were responsible.

The sixth cause of action also, therefore, properly was dismissed. We hold, however, as to the seventh and eighth causes of action, on the authority of Coffin v. Shour ( 246 App. Div. 263), that the plaintiff adduced sufficient evidence to withstand defendant's motion to dismiss at the stage of the proceeding then reached and that under the circumstances present the court should have exercised its discretion in favor of postponing the determination of said causes of action until the defendant executrix had accounted as in the interlocutory decree provided. The interlocutory judgment should be modified by striking from the first decretal provision thereof reference to the seventh and eighth causes of action, and by providing that the trial of said causes of action await the accounting decree, and as so modified the interlocutory judgment should be affirmed, with costs to the appellant to abide the event.

[9] Although there seems to be no case directly in point in this state, there is a line of authorities in other states to the effect that where a person has embezzled funds and used them for the payment of premiums for insurance on his life, a trust is created in favor of the person from whom they were embezzled, and that such person is entitled to such proportion of the total insurance as the amount of premiums which have been paid from the embezzled funds bears to the total amount of the premiums paid. ( Truelsch v. Miller ( Northwestern Mutual Life Ins. Co.) 186 Wis. 239 [202 N.W. 352, 38 A.L.R. 914] Vorlander v. Keyes, 1 F.2d 67; Massachusetts Bonding Ins. Co. v. Josselyn, 224 Mich. 159 [194 N.W. 548]; Dayton v. H.B. Claflin Co., 19 App. Div. 120 [45 N.Y.S. 1005]; Holmes v. Gilman, 138 N.Y. 369 [ 34 N.E. 205, 34 Am.St.Rep. 463, 20 L.R.A. 566]; Coffin v. Shour, 246 App. Div. 263 [285 N.Y.S. 197]; Jansen v. Tyler, 151 Ore. 268 [ 47 P.2d 969, 49 P.2d 372]; see, also, annotation in 38 A.L.R. 930, where many cases are collected announcing the above rule.) There is some authority that the defrauded person is limited to recovering the amount of premiums paid with the misappropriated funds ( Proctor v. MacClaskey, 278 Mass. 238 [ 179 N.E. 600]; Board of Public Instruction v. Mathis, 132 Fla. 289 [ 181 So. 147]), but the better reasoned cases permit a pro tanto recovery.