Page:Harvard Law Review Volume 5.djvu/129

EQUITY JURISDICTION. 113 legacy. But it should be carefully observed that such a decree will afford the executor no protection against either a creditor or any other pecuniary legatee ; for the executor had no right to make such an admission, unless he had sufficient assets not only to pay all debts, but also to pay all pecuniary legacies in full. In short, an admission of assets by an executor, upon a bill by a pecuniary legatee, means that the assets will be sufficient, after payment of all debts, and all specific legacies, if any, to pay all pecuniary legacies in full. It will be seen, therefore, that, upon a bill by a pecuniary legatee against an executor, the testator's estate will or will not be ad- ministered, according as the executor is or is not required to give an account ; and that he will be required to give an account unless he admits assets, while if he admits assets, he will not. We now come to the case of a bill by a creditor against the executor to recover his debt; and the question is, whether such a bill can be so moulded as to serve the purpose of administering the estate. At first sight, it may seem that such a bill does not differ materially from a bill by a pecuniary legatee to recover his legacy. In truth, however, there is a very important difference between the two, — a difference, too, which is decisive of the present question. 1 All pecuniary legatees must, as we have just seen, be paid ratably, and no one of them can gain a priority over the others by suing for his legacy ; but this is not true of cred- itors, — not even of those who are of the same degree. On the contrary, it is not only legally possible for any creditor of a deceased debtor to gain a priority by superior diligence over every other creditor of the same degree, but such is the inevitable consequence of any creditor's first recovering either a judgment at law or a decree in equity for his debt. That such is the law is perfectly well known ; but it is doubtful if the reason of it is very well understood. In particular, it is believed that judgments against an executor are often confounded with judgments against his testator. It is true that a judgment of either class gives to the person who recovers it a right to priority of payment by the executor; but the reason is entirely different, according as the judgment belongs to the one class or the other. A judgment against a living debtor gives no priority to the creditor, except so 1 I.e., assuming that the bill is solely for the recovery of the plaintiff's debt. See infra, pp. 1 15-16.