Page:Harvard Law Review Volume 5.djvu/127

111 EQUITY JURISDICTION. Ill one before the court who will be interested in furnishing a true answer, or upon whom the consequences of an erroneous answer will fall. On the contrary, those consequences will fall upon per- sons not before the court, and who, therefore, will have no oppor- tunity to be heard. Accordingly, the court will ascertain who are the next of kin of the deceased in the same manner that it ascer- tains who are his creditors, namely, by referring the cause to a Master, with directions to him to publish advertisements for. the next of kin of the deceased to come before him within a time to be limited, and make out their kindred, the court declaring that those who do not so come in will be deprived of all benefit from the decree. When shall the reference for this purpose be made? One might suppose, at first sight, that it would be most convenient to embrace in one reference everything that is to be done by the Master. In truth, however, the question, who are the next of kin of the deceased, is, in its nature, a preliminary question, as upon the answer to it will depend all the subsequent proceedings in the cause. It has, therefore, been found convenient to make the in- quiry as to the next of kin the subject of a separate and prelimi- nary reference ; and accordingly the first decree is confined to that object. 1 If the result of this reference is against the plaintiff, his bill will be dismissed ; if in his favor, the suit will proceed in the same manner as a suit by a residuary legatee. Regularly, there- fore, there are three decrees in a suit by a next of kin, while there are only two in a suit by a residuary legatee. - If the bill be filed by a pecuniary legatee for the recovery of his legacy, a somewhat different case will be presented. As the claim of a pecuniary legatee is for a definite sum of money, and as he has no interest in the estate beyond the amount of his legacy, he will not be entitled to an account of assets, if the executor will admit them to be sufficient to pay the plaintiff's legacy ; but if the executor will not admit the assets to be sufficient for that purpose, he will be required to give an account; and, in that event, the first decree will be the same as upon a bill by a residuary legatee, i.e., the Master will be required to take an account, not only of the personal estate of the testator, but also of his debts, and of his specific and pecuniary legacies. An account of the debts and specific legacies will be required for the same reason as upon a bill by a residuary legatee, namely, that 1 See Seton on Decrees (rst ed.), p 72.