Page:Harvard Law Review Volume 5.djvu/126

HO HARVARD LAW REVIEW. court would, therefore, undoubtedly encounter very serious diffi- culties in making its final decree, were it not for one circumstance, namely, the payment of the assets into court. That, however, removes every difficulty; for, in consequence of it, the final decree becomes merely the direction of the court to its own officer as to the disposition of the money in court. In short, the case becomes simply one of paying money out of court. The subject may be looked at in another light. Supposing the suit of A to be prosecuted to the end for A's sole benefit, what would be the consequence ? Clearly, the estate would have to be administered to the extent of having it all converted into money, and the money paid into court; but there A's relief would have to stop until it could be ascertained what claims there were upon the assets superior to A's claim. How would this be done ? One way would be for A to present a petition to the court, en- titled in the cause of A against B, asking that the residue of the estate be ascertained and paid over to him. The court would then make an order of reference to a Master, containing directions precisely like those contained in the first decree, as stated above, except that the Master would not be required to take an account of the estate, that having been already done. The Master having made his report, and his report having been confirmed, the court would make an order for paying the money out of court in pre- cisely the same terms as if it had been done in the final decree, as before stated. Thus, the same result would be arrived at as before, and by means of one suit, but in a mode much less direct and much more dilatory and expensive. So much for an administration bill filed by a residuary legatee. If the bill be filed by the next of kin, 1 the residue not having been disposed of by will, the suit will differ in only one material point from a suit by a residuary legatee, namely, that the court must be satisfied that the plaintiff is next of kin, and the sole next of kin to the deceased. How shall the court be satisfied of this? The question broadly is, Who are the next of kin of the deceased ? It is, therefore, like the question, Who are the creditors of the de- ceased ? In the former case, too, as well as in the latter, the court must find for itself the answer to the question, as there will be no 1 In order to avoid raising questions which are foreign to the main purposes of this article, it will be assumed that there is but one residuary legatee, and but one next of kin.