demanded to entitle the legatee to interest. It has been laid down that a legacy is not due till demand, and the executor shall pay interest only from that time; or, if no demand be proved, from the time of - the bill exhibited. A distinction was however taken between a legacy that was to be paid at twenty-one, or marriage, or any other particular time, when it would carry interest from that time; and one given generally, without any time mentioned; for then interest would be due only from demand; except in a gift to an infant, to whom no laches could be imputed. And although in a subsequent case where a legacy was devised to J. S. to be paid at a certain time, it was held by the Lord Keeper that it should not carry interest, but from the time of a demand made; yet Lord Cowper afterwards adopted the above distinction, holding that generally interest is only due from demand; but that where a legacy is left payable at a day certain it must be paid with interest from that day. And so in a still later case, in which a man gave a legacy payable a year after his death to his niece, who married some years afterwards, and the husband demanded the legacy, which after two years was paid him, and he gave a receipt for the principal and amount of two years interest; and then after seven years acquiescence brought his bill for the arrears of interest from the end of a year after the testator's death till the marriage, insisting that by mistake he only thought the legacy was payable on marriage: the Court said it was plain interest d a 2 Freem. 1. Fringe v. Lewes, 1 Leo. 17; and see Poph. 104. b Anon. 2 Freem. 207. • 2 Salk. 415; and see Churchill v. Lady Speake, 1 Ver. 251. Contra Bullen v. Allen, Rep. T. Finch. 264. Joliff v. Crew, 1 Eq. Ab. 286. Pr. Ch. 161. • 2 Salk. 415. for the legacy was due, there being a certain time appointed by the will which gave it; and the executor was accordingly decreed to pay the arrears with costs. It is said also in a late practical work, that the doctrine of a legacy, given generally, not carrying interest till demand, has been overruled." When any particular rate of interest is directed by the will, that will be given: but when there is no such direction, it has long been the practice (with some few instances to the contrary) to allow only four per cent., the usual interest of the Court. A distinction was once taken between legacies charged on the personal and on the real estate: in the latter case, the security being good, the rule was to give one per cent. less than legal interest, which was allowed in the former; but this has long been altered. In bequests by testators residing in other countries the rate of interest of those countries has been sometimes given." Lord Alvanley however thought there was no reason in these cases for giving more East v. Thornbury, 3 P.W. 126. 2 Salk. 415. Bird v. Lockey, 2 Ver. 745. Incledon v. Northcote, 3 Atk. 439. d Underwood v. Morris, 2 Atk. 184. Guillam v. Holland, id. 343. Shudal v. Jekyll, id. 519. Hodgson v. Rawson, 1 Ves. 48. Reynolds v. Meyrick, 1 Ed. 48. Green v. Pigot, 1 Bro. 105. Davies v. Austen, 1 Ves. J. 247. Lee v. Brown, 4 Ves. 369. Kirby v. Potter, id. 752. Spurway v. Glynn, 9 Ves. 486. Wood v. Penoyre, 13 Ves. 337. Shirt v. West than the usual interest; and accordingly in the instance before him allowed only four per cent." And in a later case in which a man in Jamaica, possessed both of property there and in this country, bequeathed several legacies of current money of Jamaica, and left assets as well as appointed executors in each country: Sir W. Grant observed that the point was not argued either in Pierson v. Garnet or in Saunders v. Drake; that Raymond v. Brodbelt turned upon the particular circumstances, and did not mean to determine, that the mere bequest of a legacy in a foreign country gave it with the rate of interest of that country; that if the legatees, in the principal case, had filed their bill in Jamaica they would have had the rate of interest there; but they chose to be paid here, and out of the fund in England: then they could not have Indian interest without a ground laid for it, either in the intention of the testator, or the situation of the fund.b Where a man in India bequeathed a legacy to his wife for life, and made her residuary legatee for life and executrix; and she invested the estate on securities in that country that carried a high rate of interest, and afterwards came to England: it was held that she was not compellable to refund the excess of interest which she had received above that which would have been produced had the property been immediately invested in the English funds; but that the legatee over, being in this country, had a right to have the property remitted, and invested in the three per cents. Malcolm v. Martin, 3 Bro. 50; and see Stapleton v. Conway, 1 Ves. 427. Pierson v. Garnet, 2 Bro. 38. N. 2, Belt's ed. Bourke v. Ricketts, 10 Ves. 330. • Holland v. Hughes, 3 Mer. 685. SECTION IV. Of Assets. I. THE personal property of a testator is the first fund, out of which his debts and legacies are to be paid. What constitutes assets in the hands of an executor for this purpose has been copiously treated of in other works; and we shall therefore only notice a few points more immediately relating to the subject of this treatise. A debt due from the executor is assets in his hands for payment of legacies," and he will be accountable for it to the residuary legatee; or even to the next of kin, when there is no residuary bequest, and the executor is himself excluded from the surplus. Nor is evidence admissible to show that the testator by appointing his debtor executor intended to extinguish the debt." In a devise of real estate, the devisee paying 10007. to the executors; Lord Hardwicke thought they must take this money as executors; and it must go for the purposes of the will: it might be different, he said, in regard to a legacy given them out of a personal estate, for then there could be no other, intent, than that it should be a designation of the persons to take, as the bequest would otherwise be nugatory.f See Touch. 496. Com. Dig. 1 Ch. Ca. 292. Rep. T. Finch 410. Biens. Bac. Ab. Executors and Ad--Brown v. Selwin, For. 240. Erringministrators H. Toll. Ex. 137. ton v. Evans, 2 Dick. 456. Berry v. Usher, 11 Ves. 87.. Nichols v. Chamberlain, 3 Ch. Rep. 89. 1 id. 138. Nels. 44. Flud v. Rumcey, Yelv. 160; and see Simmons v. Gutteridge, 13 Ves. 262. с Phillips v. Phillips, 2 Freem. 11. to the Delt based A gift of a legacy may be so framed as to be a reby Stitute of lease of a demand: but to have this effect the intention must be clear; and if therefore a testator merely bequeaths a legacy to his debtor, the debt must be set off against the legacy. Yet papers of the testator have been admitted in evidence to show his intention that a debt should not be put in demand by his executors, and the legatee in consequence held entitled to his clear legacy." C A legacy to a wife, we have seen, may be set off against a debt due by the husband to the testator: but in a suit by the assignee of a legacy it has been held that the executor can not set off a debt due to himself from the legatee." Where a man had made several presents to a woman, to whom he was to be married, and left her also a legacy by his will, and died on the day fixed for his marriage; and the executors claimed to deduct out of the legacy the value of the presents: the Master of the Rolls observed, that if the executors had a right to these presents, either in law or equity, they should not be obliged to bring an action, or a bill for the recovery of them; but might deduct the value of them out of the legacy; but he thought they had no right to the presents, no condition being expressed; and that it became a court of equity to declare presents made by an intended husband, absolute gifts." Whenever there are no debts, or the debts are all paid, and no purpose for which the estate is to be left ■ Wilmot v. Woodhouse, 4 Bro. 227. Jeffs v. Wood, 2 P.W. 128. Eden v. Smyth, 5 Ves. 341; and see Reeves v. Brymer, 6 Ves. 516. e • Ante 277. d Whitaker v. Rush, Ambl. 407. Lockyer v. Simpson, Mos. 298. |