Page:Harvard Law Review Volume 5.djvu/148

132 132 HARVARD LAW REVIEW. make a separate report as to creditors as soon as the reference is completed as to them ; and, as soon as such report is made and confirmed, the cause may be set down for a further hearing, and a decree made for the payment of the creditors, leaving the cause to proceed as to legatees or next of kin. 1 If it be asked what inducement a creditor can have to file a bill on behalf of legatees or next of kin, it may be answered that he has the same inducement that he has to file a bill on behalf of other creditors than himself, namely, the avoiding of the risk of having his bill superseded by a bill filed by a residuary legatee or a next of kin, or even by another creditor on behalf of the legatees or next of kin as well as of the creditors. Thus far it has been assumed that the creditors of a testator were seeking payment of their debts out of his personal estate alone. But bond creditors were always entitled to be paid out of the testator's real estate, if his personal estate proved deficient; and, therefore, when a bond creditor of a deceased debtor filed a bill to compel payment of his debt, he was entitled to make the debtor's heir or devisee, as well as his executor, a defendant to the bill, and it was necessary for him to do so, if he wished to avail himself of his remedy against the real estate. It was also necessary that he should file his bill on behalf of all the bond creditors of the testator; otherwise the heir or devisee might demur. 2 The reason of this was that such a bill, as against the heir or devisee, was a bill to have the testator's real estate, or a sufficient part of it, sold or mortgaged, under the direction of the court, for the payment of the testator's bond debts ; and, as this 1 See Golder v. Golder, 9 Hare, 276. 2 Bedford v. Leigh, Dick. 707 ; Johnson v. Compton, 4 Sim. 37 ; May v. Selby, 1 Y. & Coll. C. C. 235 ; Ponsford v. Hartley, 2 J. & H. 736 ; Worrakerz/. Pryer, 2 Ch. D. 109; Fryer v. Royle, 5 Ch. D. 540. The better view, however, would seem to have been that the decree should be for the benefit of all the bond creditors, whether the bill was in terms on their behalf or not ; and. that view appears to have formerly prevailed. Martin v. Martin, 1 Ves. 211, 213-14 ; White v. Hillacre, 3 Y. & Coll. 597, 6io, note. As a bond creditor is entitled to a remedy in equity against the heir or devisee only on the terms of his permitting all other bond creditors to share in the benefit of his suit, the mere fact of his making the heir or devisee a defendant to his bill ought, it seems, to be deemed suffi- cient evidence, unless the contrary appears, that he intends his bill to be for the benefit of all the bond creditors. See Cowper v. Blissett, 1 Ch. D. 691 ; Worraker v. Pryer, 2 Ch. D. 109. The view stated in the text seems to have originated in the idea that, when the bill is in terms on behalf of all the other bond creditors, the latter become construc- tively co-plaintiffs in the suit, and hence that a bill which is not in terms on behalf of all the bond creditors is defective for want of parties. See supra, p. 128 et seqq.