Page:Harvard Law Review Volume 5.djvu/131

115 EQUITY JURISDICTION. 1 15 The effect of a decree in equity against an executor, at the suit of a creditor of his testator, in giving the creditor a priority, is even more decisive than that of a judgment at law ; for a decree in equity binds the executor personally in form as well as in effect. The executor, as in the case of a bill by a pecuniary legatee, is required either to admit assets or to give an account. If he admit assets (and an admission of assets in this case means only that he has sufficient assets to pay the plaintiff, after paying all debts of a higher nature), the creditor will be entitled to an immediate decree against the executor personally. If the executor decline to admit assets, he will be required to give an account; but the account will be exclusively for the plaintiff's benefit, its object being merely to enable him to show that there are sufficient assets to pay him, after paying all debts of a higher nature. If the plaintiff succeed in showing this, he will be en- titled, as before, to a decree against the executor personally. Indeed, equity was bound in self-defence to make its decrees against executors binding on them personally; for otherwise such decrees would have had no other effect than to prove the existence of the debt (as to which there is commonly no question), and hence creditors who sued in equity would have been put at a great disadvantage as compared with creditors who sued at law. It may be thought that, upon a bill by a creditor, if the executor does not admit assets, there ought to be an account of all debts of a higher nature than the plaintiff's, and that the pay- ment of all such debts ought to be provided for in priority to the plaintiff's; and equity might, indeed, have taken that course, but in fact it has not. On the contrary, equity has in that respect followed the analogy of an action at law, treating all debts of a higher nature as if they had in fact been paid, and so permitting the executor to show them in his account as items of discharge. 1 One reason for this may have been that equity did not think it worth its while to go out of its way to provide for the payment of a part only of the debts. Another reason may have been that equity regards the claims of all creditors as equal in point of justice, and therefore it was not disposed to go out of its way to assist one class of creditors, upon the ground that they had a priority over other creditors. It follows, therefore, that a bill by a creditor to recover his own 1 See Anon., 3 Atk 572.