Furlow v. Tillman

By the Court.

Benning, J.

delivering the opinion.

This Court has no doubt that such a bill as the present may be filed, after a judgment de bonis testatoris against the administrator or executor. In England, it would be a more serious question, whether it could be filed, before such a judgment. In England, among creditors of equal degree, the one that first gets judgment against the executor or administrator, has a preference over the others. And the Court, of Chanceiy, in order to favor the diligent creditor, does not grant a general injunction like that in the present case, until after there has been a judgment do. bonis testatoris. Toller on Exors. 455; Story’s Eq. § 90; 10 Ves. 39-40; 4 do. 638; the cases stated in Wms. on Exors. from 1629, to 1632, et seq.

But still, we do not think, that the complainant shows a right to file this bill. There is no equity in this bill; at least none that is made apparent

The intestate died in 1842. The administrator qualified, probably, in a short time afterwards: (he does not say when. The estate was much in debt, so much so, as to require a sale of the land. The administrator did not sell the land, until the 25th day of December 1854; and he gives no excuse whatever, for not having done so sooner. If he had sold sooner, as, taking things as they appear, he ought to have done, he would probably, have had no reason, to ask for the aid of a. Court of Equity.

In the absence of all excuse for not selling the land sooner, we think that the administrator was not in a condition to ask for this injunction, or for any other relief in Equity.

Consequently, we think, that the motion to dismiss the bill and injunction ought to have been sustained.

Judgment reversed.