Page:Harvard Law Review Volume 5.djvu/128

112 HARVARD LAW REVIEW. debts and specific legacies have a priority over pecuniary legacies. An account of the pecuniary legacies will be required because all such legacies are payable pro rata, and no one pecuniary legatee is allowed to gain a priority over others by suing for his legacy; and, therefore, the court must have an account of the pecuniary legacies, as well as of the personal estate, the debts, and the spe- cific legacies, before it can know whether or not the plaintiff's legacy is to be paid in full, and, if not, then what proportion of it is to be paid. Not only will the first decree be the same, in the case now sup- posed, as upon a bill by a residuary legatee, but all the subsequent proceedings will be the same, with one exception, namely, that, as the party or parties entitled to the residue will not be before the court, such residue will remain in court until such party or parties obtain payment of it by a petition to the court for that purpose. 1 It may be asked, indeed, how it is that the residue can be required to be paid into court, as the parties entitled to it are not before the court; and there is some technical difficulty upon that point. Still, as the decree is made for the benefit of all parties interested in the estate, except those entitled to the residue, and as the amount of the residue, if any, cannot be ascertained until the end of the suit, and as the payment of the whole fund into court must, in legal contemplation, be for the benefit of all parties interested in it, and cannot injure the executor, the technical difficulty has been disregarded. 2 It must be observed, however, that no one can be bound by an accounting to which he was not a party, and, therefore, in the case now supposed, the party or parties entitled to the residue may require the executor to account over again upon a bill filed against him for that purpose ; but of course it will be at the peril of costs, if they harass the executor with a second accounting without cause. If the executor admit that he has sufficient assets to pay the plaintiff's legacy in full, the plaintiff will be entitled to no account, as he will need none ; for he will be entitled to an immediate decree against the executor personally for the amount of his 1 The question, whether a bill by a pecuniary legatee can be so framed as to enable the court to pay out the entire assets under the final decree in the suit, will be considered further on. See infra, p. 128 et seqq. 2 See infra, p. 128 et seqq.