Page:Harvard Law Review Volume 5.djvu/135

EQUITY JURISDICTION. 1 19 decree before any creditor who sued for his own exclusive benefit could gain a right to a priority of payment; and this was finally carried to such a length that an executor was permitted to com- mit the absurdity of suing himself, i.e., of filing a bill against himself in the name of a creditor (whose consent, of course, he must obtain), the same attorney confessedly acting for both plain- tiff and defendant. 1 If, however, it was suspected that an executor was using this privilege as a means of delaying creditors and keeping the money in his own hands, it was open to any creditor to make an application to the court to have the prosecution of the suit committed to himself or to some other creditor, and such an application was always listened to with favor. 2 An executor, however, who honestly desired to prevent any one creditor from gaining a priority over others by obtaining a per- sonal decree against himself, could easily do so in the manner pointed out in the last paragraph ; 3 and, therefore, a creditor who sued an executor for his own exclusive benefit was confronted with the moral certainty, not only of failing in his object, but also of losing the benefit of conducting a suit for the administration of the estate. It is not surprising, therefore, that bills for the exclusive benefit of the creditor who filed them were superseded by bills for the equal benefit of all the creditors. It must not, however, be supposed that all the obstacles which equity encountered in its attempts to administer the estates of deceased persons had yet been overcome. It had, indeed, been shown that suits by creditors of a testator could be so framed as 'to serve the purpose of administering the testator's estate, and means had been found of compelling creditors so to frame their suits; and, incidentally, means had been found of defeating the attempts of particular creditors, by suits in equity for their own exclusive benefit, to gain priority over other creditors of the same degree. But it was still possible for one creditor to gain priority 1 Paxton v. Douglas, 8 Ves. 520, 522, per Lord Eldon ; Gilpin v. Lady Southamp- ton, 18 Ves. 469-470, per Lord Eldon. 2 Paxton v. Douglas, 8 Ves. 520, 521-2, per Lord Eldon; Simsf. Ridge, 3 Mer. 458; Powell v. Wallworth, 2 Madd. 183; Hawkes v. Barrett, 5 Madd. 17. See also Spode v. Smith, 3 Russ. 511. 8 In Hayward v. Constable, 2 Y. & Coll. 43, it appeared that an administration bill was filed Feb. 8, that the executor's answer was filed Feb. II, and a decree made Feb. 12. In Hawkes v. Barrett, 5 Madd. 17, a bill was filed Dec. 15, the executors answered immediately, and a decree was made Dec. 22. One of the executors also was solicitor for both plaintiff and defendants, and the other executor was residuary legatee.