Page:Harvard Law Review Volume 5.djvu/132

Il6 HARVARD LAW REVIEW. debt never involved providing for the payment of (and therefore never involved taking an account of) any other debts; and a creditor who filed such a bill had a right to insist that his suit should not be incumbered or delayed by the claims of any other creditors with which he had nothing to do ; and for the court to have made such a suit the means of providing for the claims of other creditors, without the plaintiff's consent, would have been an act wholly arbitrary, and in plain violation of the plaintiff's rights. Nor would it probably have been thought a boon to the body of the creditors of the testator to be permitted to come in and prove their debts under a decree obtained by one of such creditors, if that one creditor must be paid in full before the others were provided for at all. The conclusion, therefore, is that, upon a creditor's bill against an executor, the estate of the testator can never be administered without the plaintiff's consent. With his consent, however, it clearly may be done ; for his rights are the only obstacle which stands in the way. If, therefore, a creditor files a bill, expressly disclaiming any priority over other creditors of the same degree, and praying that payment of all the debts may be provided for, according to their legal priorities at the time of the testator's death, there is every reason why the prayer of the bill should be granted ; for it enables the court to administer the estate, and it is also promotive of one of the most cherished objects of equity, namely, equality among creditors. Moreover, this is precisely what takes place in the common case where a creditor files a bill against an executor, " on behalf of himself and of all the other creditors of the testator," the words quoted being held (and properly held) to mean all that is stated above. Accordingly, upon such a bill, the first decree will direct an account of the estate and of all the debts of the testator, and when the account has been taken, payment into court of the balance in the executor's hands will be directed, as upon a bill by a residuary legatee, and the court will proceed in all particulars as upon a bill by a residu- ary legatee, except that no account of legacies will be taken, nor any payment of them provided for; but the residue of the personal estate, after payment of the debts, will remain in court until paid out on the application of those entitled to it. 1 The words which have been quoted in the last paragraph have 1 See Collinson v. Ballard, 2 Hare, 119.