Page:Harvard Law Review Volume 5.djvu/147

EQUITY JURISDICTION. 13 1 degree ; 1 and, indeed, any other practice would have been attended with the greatest inconvenience, so long as the debts of deceased persons had priority according to their respective degrees. Undoubtedly, it has been common for two or more creditors or pecuniary legatees to unite in filing a bill on behalf of themselves and all other creditors or pecuniary legatees; but that practice has arisen from the error of supposing that those who file the bill represent all those on whose behalf it is filed ; for it is well known that, when the plaintiffs in a suit constitute a class of persons, some of whom are made plaintiffs by representation, the bill not only may, but should, be filed by more than one member of the class, in order that the court may have more security than the presence of a single member of the class would afford that the interests of those who are present only by representation will be properly cared for. Upon the whole, therefore, it seems that those on whose behalf an administration bill is filed are not represented by the person who files the bill, and therefore they need not constitute a single class of persons, but may comprise all persons who are interested in the estate to be administered, or who have claims upon it; and it seems desirable that, in many cases at least, administration bills should be filed on behalf of all the persons just named. Undoubt- edly there is a wide distinction between creditors, on the one hand, and legatees or next of kin, on the other; and there may be litigation or other causes of delay affecting the latter with which 'the former are not concerned, and by which, therefore, they ought not to be delayed in obtaining payment of their debts. It does not follow, however, because a bill is filed on behalf of legatees or next of kin, as well as of creditors, that the creditors must wait for the payment of their debts until the claims of legatees or next of kin can also be satisfied ; for, when the first decree is made, referring the cause to a Master, the Master may be directed to 1 It has, indeed, been made a question whether a secured creditor can file a bill on behalf of unsecured creditors. Thus, in Burney v. Morgan, i S. & St. 358, 362, Sir John Leach, V. C, said : " A mortgagee has no common interest with the creditors at large, and cannot sue on their behalf." So in White v. Hillacre, 3 Y. & Coll. 597, it was held that a mortgagee could not sue both as mortgagee and also on behalf of himself and all other creditors of the debtor, such rights of suing being inconsistent with each other. On the other hand, in Skey v. Bennett, 2 Y. & Coll. C. C. 405, it was held that a mort- gagee may maintain a bill on behalf of himself and all the other creditors of the deceased mortgagor. And see infra, pp. 134-5.