Page:Harvard Law Review Volume 5.djvu/149

133 EQUITY JURISDICTION. 1 33 was a proceeding which required considerable time, and involved considerable labor and expense, considerations of convenience and economy demanded that it should be gone through with once for all ; 1 and, therefore, no creditor was permitted to file such a bill solely for his own benefit. The bill ought also, for a reason which will appear presently, 2 to be on behalf of the simple contract creditors as well as of the other bond creditors ; but the only penalty that the plaintiff incurred by not so framing his bill was the risk of having it superseded by the bill of some other creditor more properly framed. It is indispensable, too, that the executor be a co-defendant with the heir or devisee, as the latter are entitled to have the personal estate exhausted before the real estate is resorted to ; and it is only by making the executor a co- defendant that it can be ascertained whether and to what extent the personal estate is insufficient for the payment of debts. 3 The first decree, upon a bill to which the heir or devisee is made a defendant, will first direct an administration of the per- sonal estate, just as if the executor were the sole defendant; and if the personal estate be found by the Master to be insufficient to pay the debts in full, he will be directed to inquire and report to the court what real estate, if any, the debtor left. 4 If the Master report the personal estate to be insufficient to pay the debts, and that the debtor left real estate, the cause will be set down for a further hearing, and a second decree will be made directing the Master to cause the amount in which the personal estate is deficient to be raised by a sale or mortgage of the real estate, or a sufficient part thereof, and the money so raised to be paid into court; and if the required amount cannot be raised by a sale of the real estate, the Master will be directed to take an account of the rents and profits of such real estate from the time of the testator's death to the time of the sale ; and when the amount of such rents and profits shall thus be ascertained the same will also be required to be paid into court. When the 1 It is obvious, too, that real estate can generally be sold to much better advantage if it is known from the beginning how much will have to be sold, or rather how much money will have to be raised. 2 See infra, pp. 136-7. 8 Plunket v. Penson, 2 Atk. 51 ; 4 Harvard Law Review, pp. 126-7; Rowsell v. Morris, L. R. 17 Eq. 20; Dowdeswell v. Dowdeswell, 9 Ch. D. 294. But see Ambler z>. Lindsay, 3 Ch. D. 198. 4 Seton on Decrees (1st ed.), pp. 134-5.