Page:Harvard Law Review Volume 4.djvu/116

100 HARVARD LAW REVIEW, the mere fact of a debtor's death to give to his creditors a right to call upon equity to assist them in enforcing payment of their debts? In order to answer this question satisfactorily it will be necessary to ascertain what obstacles a creditor is liable to en- counter, as a consequence of his debtor's death, in attempting to enforce payment of his debt by an action at law. During the life of a debtor, the only remedy of which his creditor as such can avail himself is against the person of the debtor. It is true that, at the present day, a debtor's property generally constitutes the only means by which his creditor can enforce payment of his debt; but it is only by means of process against a debtor's person that his property can be reached. In short, the creditor must obtain a judgment for his debt against the debtor personally before he can compel payment of the debt out of his debtor's property. When, therefore, the debtor dies, the creditor's remedy is gone. The debtor's property, to be sure, remains, but the creditor cannot touch it unless the law furnishes him with some new remedy. Indeed, when a debtor dies, his debts would all die with him did not positive law interpose to keep them alive ; for every debt is created by means of an obligation imposed upon the debtor, and it is impossible •that an obligation should continue to exist after the obligor has ceased to exist. Whenever, therefore, a debtor dies, positive law has to interpose, first, to keep his debts alive ; and, secondly, to provide his creditors with a new remedy against his property. What is the nature of the remedy which positive law thus provides? If the question were a modern one, or if it were governed by modern ideas, we might expect a remedy to be provided which would be analogous to that which is provided against a bankrupt debtor or against an insol- vent corporation. In other words, we might suppose that, in case the debts owing by a deceased debtor were not promptly paid, some court would be authorized, on the application of his cred- itors, to take his property into its own hands, and apply it to the payment of his debts, giving the surplus, if any, to the persons entitled to receive it. The question, however, is not a modern one, nor is it governed by modern ideas. On the contrary, it is as old as the law itself, and the law relating to it is so bound up with the habits and customs of the people as not easily to admit of change. Accordingly, we shall find that the remedy provided by law for the creditors of deceased debtors is for the most part very