Page:Harvard Law Review Volume 5.djvu/144

128 128 HARVARD LAW REVIEW. In spite of all that we have said in vindication of administration bills, it must be confessed that they still leave something to be desired. It has been seen that, upon a bill filed by a creditor on behalf of himself and all the other creditors, the final decree can direct payment to none but creditors, and that, upon a bill filed by a pecuniary legatee on behalf of himself and all other pecun- iary legatees, the final decree can direct payment to none but creditors and specific and pecuniary legatees. It has also been seen that there is a difficulty in requiring all the assets to be paid into court in a suit, by the final decree in which they cannot all be paid out. Can, then, a bill by a creditor, or by a pecuniary legatee, be so framed that the final decree upon it can direct the distribution of the entire estate? In other words, can such a bill be filed on behalf, not merely of the plaintiff and the other mem- bers of the class to which he belongs, but of all persons who are interested in the estate, or who have claims upon it ? It seems to have been generally supposed that it cannot. Why ? Because it has been generally supposed that a creditor or legatee who files a bill on behalf of himself and others represents those others in the suit, and hence that the latter are constructively plaintiffs in the suit; and if this were so, it would follow that all those on whose behalf the bill is filed must constitute a class ; for no one can be a constructive plaintiff in a suit who could not also be a nominal plaintiff, and all the plaintiffs in a suit, whether nomi- nal or constructive, must be capable of acting together as a unit, and hence, if they have not all one right, they must at least have one and the same case to establish. But is it true that all those, on whose behalf a creditor or a pecun- iary legatee of a testator brings a suit against the executor, are plaintiffs in the suit ? It seems not. First, none but the nominal plaintiff or plaintiffs are treated by the decree as plaintiffs. For example, the first decree when the suit is by a creditor directs the Master to. take an account of what is due to the plaintiff and all the other creditors of the testator, and, after directing the Mas- ter to cause an advertisement to be published for the creditors to come in before him and prove their debts, the decree proceeds : '* but the persons so coming in to prove their debts, not parties to this suit, are, before they are to be admitted as creditors, to con- tribute to the plaintiff their proportion of the expense of this suit,