
    No. 26.
    Timothy M. Furlow, and others, creditors, plaintiffs in error, vs. William J. Tillman, administrator, defendant in error.
    A bill to enjoin creditors and marshal assets will not be sustained if the need for it was brought about by the executor's neglect of duty.
    
      In Equity, from Lee Superior Court. Decision by Judge Allen, at chambers, 23d October 1856.
    This was a bill filed by William J. Tillman administrator of the estate of Daniel Tillman deceased, against the creditors of said estate to marshal assets and for an injunction.
    The bill alleges that Daniel Tillman departed this life intestate in the year 1852, leaving a. considerable estate, consisting principally of notes, .'accounts, and judgments. That complainant was appointed his administrator, and entered promptly upon the discharge of his duties, and proceeded to the vigorous collection of the debts; made sale of the estate upon a credit of twelve months; that the money received on the debts due to intestate in his life time, and from the sale of the property, has been applied as fast as collected to the payment of debts. That he has now on hand the sum of $822,12. That complainant’s intestate was largely indebted to a large number of persons, but that the assets when realized, will be more than sufficient to pay all the debts. That suits to a large amount have been commenced against complainant, and judgments to over the sum of six thousand dollars have been recovered against him as administrator; that some suits are still pending, and many creditors who have not sued, threaten to do so. That complainant has not been able to collect money sufficient to meet those judgments. That the Sheriff of Lee county has returned milla bona, on the" executions issued upon said judgments, and the plaintiffs arc now proceeding by scire facias to make complainant personally and individually liable for the payment thereof. That lie failed to enjoin said suits, while pending, or to plead plene administravil, knowing that the estate of his intestate was amply able to pay off all the debts against it, and supposing that he would be able to realize collections that would enable him to meet the demands that were pressing.
    The bill prays that the judgmeut creditors be enjoined from proceeding against complainant individually; that, all the creditors be restrained from proceeding further at law, until the assets are marshalled, and complainant has time and opportunity to collect the debts, and to terminate and dispose of the litigation which is obstructing the settlement of the estate.
    The bill was sanctioned, and the injunction granted.
    Afterwards upon a hearing, at chambers, the counsel for the creditors, moved to dissolve the injunction and dismiss the bill for want of equity. The Chancellor refused the motion, upheld the injunction, and retained the bill.
    Whereupon counsel for the creditors excepted and assign error.
    McCoy & Hawkins, for plaintiffs in error.
    Vason; Lyon, for defendant in error.
   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.  