Page:Harvard Law Review Volume 5.djvu/121

105 EQUITY JURISDICTION. 105 respective rights; and, to enable a court so to divide an estate, it must ascertain, not only who such persons are, but what are their respective rights; and, in order to enable it to do the latter, it must have all such persons before it (or at least it must give them all an opportunity to come before it) together; and this latter object can be accomplished only by means of one suit or pro- ceeding. In short, when a court undertakes to administer an estate, it must consider the claim of every particular person in connection with the claims of all other persons, and it cannot dispose of any one person's claim separately and by itself. Fourthly, equity was called upon to provide some means of ad- ministering the estates of deceased persons, as well to satisfy the demands of justice as to justify itself in assuming complete juris- diction over such estates. That equity was called upon to do this in order to satisfy the demands of justice, in the case of all estates which were, or might prove to be, insolvent is plain ; but in truth the need was not confined to such estates. An estate might, indeed, be so clearly solvent that the executor would be perfectly willing to pay all debts and all specific and pecuniary legacies; but an executor could scarcely ever be perfectly safe in paying over the residue without the authority of some court which had the power and the will to protect him, because he could never be sure that debts would not afterwards appear for which he would be liable. 1 Moreover, in cases where the residue is undisposed of by will, it is frequently uncertain who are the next of kin ; and wherever that is the case, it must be ascertained and decided by adequate judicial authority who the next of kin are, before the executor or administrator can safely pay over the residue to any one. The question then recurs, How could equity so mould the pro- ceedings in an ordinary suit as to make the latter serve the pur- pose of administering the estate of a deceased person? Equity has done this, and has done it with at least a fair degree' of success. In order to understand clearly how it has done it, it will be well to proceed by stages. Let us then first take the simplest case, namely, that of a bill by a residuary legatee against the executor for an account and payment of the residue. Such a bill requires the court to ascertain, first, the amount of the testator's 1 Norman v. Baldry, 6 Sim. 621 ; 2 Williams, Executors (8th ed.), 1354. But see 22 & 23 Vict., c. 35, s. 29.