Page:Harvard Law Review Volume 5.djvu/151

135 EQUITY JURISDICTION. 135 relief) for a realization of the security by a sale; 1 and, in anal- ogy to the case of an action at law and a suit in equity by a cred- itor of a living debtor, he may either pray, first, that the debt be paid by the representative or representatives of the debtor, and, if payment in full shall not be thus obtained, that then the security be realized; or he may pray, first, that the security be realized, and, if that prove insufficient to pay the debt in full, that the remainder be paid by the representative or representatives of the debtor. 2 It may be inferred from what has been said that, when a debtor dies insolvent, a creditor who has security for his debt may claim dividends from the estate upon his whole debt, just as if he had no security, and may then resort to his security for whatever remains due to him; and such was formerly the law. 3 But, by the Judi- cature Act, 1875, 4 the rule which has always prevailed in bank- ruptcy (according to which a secured creditor receives dividends upon so much only of his debt as the security is insufficient to pay) was made applicable to the administration in equity of the estates of deceased persons. It remains to speak briefly of certain important incidental objects accomplished by equity through the instrumentality of administration suits, — objects which otherwise either would not have been accomplished at all, or would have been accomplished only at a greatly increased expense and delay. These objects are chiefly, first, the promotion of equality among the creditors of deceased debtors; secondly, the application of the real estate of deceased debtors to the payment of all their debts; thirdly, the carrying out of the intentions of testators as to the dispositions of their estates. First. It has been seen that the common law ranked the cred- itors of deceased debtors according to the nature of their debts, and that it also empowered executors to make such preferences as" they chose among creditors of their testators whose debts were of the same nature. These preferences equity had no power to pre- vent, but it could and did greatly mitigate the injustice which they would otherwise have worked. The way in which equity did this 1 Skey v. Bennett, 2 Y. & Coll. C. C. 405 ; King v. Smith, 2 Hare, 239. But see White v. Hillacre, 3 Y. & Coll. 597 ; Raikes v. Hall, cited 3 Y. & Coll. 605. 2 See Bedford v. Leigh, supra. 8 Mason v. Bogg, 2 M. & Cr. 443, overruling Greenwood v. Taylor, 1 R. & M. 185.
 * 38 & 39 Vict., c. 77, s. 10.