Page:Harvard Law Review Volume 5.djvu/122

106 HARVARD LAW REVIEW. personal estate, secondly, the amount of his debts, and, thirdly, the amount given by his will in specific and pecuniary legacies, because it is only in this way that the residue to which the plaintiff is entitled can be ascertained. Accordingly, the first decree will direct a reference to a Master to take an account of the testator's personal estate, debts, and legacies. The first and last of these three items will involve no special difficulty ; nor will the Master have any difficulty in taking an account of the debts, so far as they have come to the executor's knowledge ; but that is not sufficient. There may be debts which have not come to the executor's knowl- edge ; and, if there are, they must be provided for. Accordingly, the decree will direct the Master to publish advertisements for all creditors of the testator to come in before him and prove their debts, and to state in such advertisements the time within which they must so come in ; and the decree will then declare that all creditors who fail to come in within the time so to be stated shall be deprived of any benefit from the decree. The decree having been made, the reference before the Master will next be proceeded with. As creditors bring in their claims, it will be the duty of the executor to see that they are fully proved, and to resist them if he thinks, them not well founded. When, however, the suit is by the person entitled to the residue, he will have the chief interest in resisting unfounded claims, and, there- fore, the executor may leave to him the responsibility of deciding what claims shall be resisted, and what resistance shall be made to them. If there is any room for doubt as to the solvency of the estate, every creditor will also be more or less interested in reduc- ing the amount of the debts as much as possible ; and accordingly every creditor will be entitled to resist the claim of every other creditor. 1 If a claim be rejected, an opportunity will be given to the claimant, if he desire it, to bring an action or file a bill against the executor to establish his claim. 2 So if a claim be contested in apparent good faith and on reasonable grounds, though unsuc- cessfully, the claimant will generally be required to bring an action to establish it, if the contestant insists upon a trial at law. 3 i While the executor may, in the Master's office, resist any claim which he thinks unfounded, he cannot prevent a claim's being resisted by others, because he thinks it just, the decree having deprived him of the power of waiving any legal defence. He cannot, therefore, waive the defence of the Statute of Limitations. Shewen v. Vanderhorst, I R. & M. 347. 2 See Lnckhart v. Hardy, 5 Beav. 305. 8 See Fladong v. Winter, 19 Ves. 196.