Page:Harvard Law Review Volume 9.djvu/76

48 48 HARVARD LAW REVIEW. be his share on the whole account paid to him ; which is only a debt, or in the nature of a chose in action due to the estate of William." ^ In M'Leod v. Drummond ^ Lord Eldo.n says that Lord Hardvvicke " frequently considered it as doubtful, whether even in the excepted cases any one except a creditor, or a specific legatee, could follow " the assets in equity. On the same page, Hill v. Simpson, 7 Ves. 152 (1802), is said to have been the first case which gave that right to a general pecuniary legatee.^ Hill v. Simpson lays it down that executors in equity are mere trustees for the performance of the will,* but it adds that in many respects and for many purposes third persons are entitled to consider them absolute owners. Toward the end of the last century their fidu- ciary position began to be insisted on more than had been the case, and the common-law decisions which have been cited helped this tendency of the Chancery.^ The final step taken was taken in M'Leod v, Drummond,^ when Lord Eldon established the rights of residuary legatees. " It is said in Farr v. Newman that the residuary legatee is to take the money, when made up : but I say, he has in a sense a lien upon the fund, as it is ; and may come here for the specific fund." ^ Oliver Wendell Holmes. Thorne v. Watkins, 2 Ves. Sen. 35, 36.  17 Ves. 152, 169 (1810).  See also M'Leod v. Drummond, 14 Ves. 353, 354. early Prankish law. i Law Quart. Rev. 164.  See also Scott v. Tyler, 2 Dickens, 712, 725, 726. ® 17 Ves. 152, 169. ' See Marvel v. Babbitt, 143 Mass. 226; Pierce v. Gould, 143 Mass. 234, 235; Mechanics' Savings Bank v. Waite, 150 Mass. 234, 235. I made the decree appealed from in Foster v. Bailey, 157 Mass. 160, 162. The par- ticular form which it took, allowing the defendant, the administrator of an administra- tor, to retain one share of stock and a savings-bank book as security for what might be found due to his intestate on the settlement of his account, and directing him to hand over the rest of the assets, was consented to, in case the defendant had a right to retain anything. I made the decree on the assumption that the change in the position of exec- utor and administrator which I am considering left their rights undisturbed. Of course if the liability were only to account for a balance, the executor of an executor would not be bound to hand over anything more, and could not be compelled to pay anything until the balance was settled. His duty, when established, would not be to deliver specific property, but to pay a sum of money. I do not know what evidence can be found on this point. It is fair to mention that the plea offered in 30 Ed. I. 240, by executors of executors, was that, " We held none of the goods of the deceased on the day when this bill was delivered." But that may be no more than a general form. " Bonz " probably only meant property.
 * P. 166. Note the recurrence with a difference to their original position in the