Page:Harvard Law Review Volume 5.djvu/142

126 126 HARVARD LAW REVIEW. So, too, every creditor, legatee, and next of kin of a deceased person acquired the means of having the estate of the deceased administered in equity; but creditors never acquired the means of preventing an executor from giving a preference to one creditor of his testator over other creditors of the same degree. Executors had a right to give such a preference at common law, and equity never discovered any means of preventing them from doing it until an administration decree was obtained against them, 1 and of course an executor could delay a creditor considerably in obtaining such a decree. If, however, an executor prefer a creditor by paying him a part of his debt, and afterwards a decree is made for the administration of the estate, the creditor so pre- ferred will not be allowed to receive anything under the decree until the other creditors have received the same proportions of their debts that he has received of his. 2 Can the estate of a deceased person be administered upon a bill filed by his executor? To this question, the authorities furnish no certain answer; 3 but, upon principle, it seems clear that the answer must be in the negative. If an executor file such a bill, he must do so, not as a person having claims to enforce, but as a person against whom claims are made. He is, therefore, properly the defendant to such a bill ; and the bill is properly filed by a creditor, legatee, or next of kin. What right, then, has the ex- ecutor to reverse this state of things? When a person against whom a claim is made, instead of waiting to be sued, brings a suit himself against the claimant to have the claim against himself dis- posed of, he must have some special reason for doing so. What reason is there in the case now supposed? If, indeed, there is a controversy as to the persons who are entitled to the estate of a deceased person after his debts are paid, or as to the propor- tions in which the several claimants are entitled, the executor may undoubtedly file a bill against the claimants; but such a bill is in 1 Waring v. Danvers, i P. Wms. 295. In the Matter of Radcliffe, 7 Ch. D. 733, Jessel, M. R., said the only way of preventing preferences by executors, before an admin- istration decree was obtained, was by procuring the appointment of a receiver. A re- ceiver cannot, however.be appointed unless there is misconduct in the executor (Anon., 12 Ves. 4) ; and the preferring of one creditor to another — an act which is perfectly legal — cannot be deemed misconduct. 2 Wilson v. Paul, 8 Sim. 63. 8 See Fielden v. Fielden, 1 S. & St. 255 ; Newman v. Norris, Dick. 259; Rush v. Higgs, 4 Ves. 638 ; Davis v. Combermere, 15 Sim. 394.