Page:Harvard Law Review Volume 4.djvu/121

105 EQUITY JURISDICTION. 105 verted to his own use a sufficient amount of the testator's assets to pay the judgment; i.e., that the executor had committed that species of tort known as a devastavit. Eighthly, when an executor had committed a devastavit he was required to pay the testator's debts, to the extent of such devastavit, out of his own pocket. This Hability could be enforced by a creditor who had already re- covered a judgment de bonis testatoris, in either of two ways ; namely, by bringing a new action against the executor personally for the tort, in which action, of course, the judgment was de bonis propriis^ or by issuing a scire facias on the judgment already re- covered, calling upon the executor to show cause why the plaintiff should not have execution against the executor's own goods.^ The next question is, whether any sufficient reason can be found, in the matters stated in the preceding paragraph, for per- mitting a creditor of a deceased debtor to file a bill in equity against the executor of the latter, instead of suing him in an action at law. Before considering that question, however, it may be well to point out briefly the nature of the relief which equity gives upon a creditor's bill, in order that the reader may compare such relief with the remedy given by the common law, as stated in the preceding paragraph. Equity takes its stand in effect upon the Constitution of Justinian, by giving the executor his choice between accounting for the testator's personal estate, on the one hand, and paying the testator's debts out of his own pocket, on the other hand. Justinian's Constitution said to the Roman heir that he might avoid personal liability for the debts of the deceased by accounting for the estate of the latter, i.e., by pre- paring and filing an inventory, which, of course, must be followed up, if necessary, by a full accounting. Equity says to the modern executor against whom a creditor's bill is filed, that he may, so far as the plaintiff is concerned, avoid the burden of accounting for the testator's estate by admitting in court sufficient assets to pay the plaintiff's debt, and thus making himself personally liable for such debt. And equity requires the executor to make his choice at the earliest practicable moment, namely, in his answer to the bill. If the executor admits assets in his answer, all that the plaintiff has to do at the hearing is to prove his debt, where- upon a decree will be made that the executor pay the debt thus proved, and this decree will be enforced by the usual process of 1 See Wheatley v. Lane, i Wms. Saund. 216a, with Serjeant Williams's notes.