heretofore fhewn in page 93, where we mentioned that perfonal estate must go in difcharge of the real; but if A, feifed in fee, mortgages his land, leaving B his fon and heir, and B dies leaving C his heir, B's perfonal estate shall not be applied to pay this mortgage, because it was not B's debt; fo though the mortgage being transferred in B's time, B covenants to pay the money, yet the debt not being originally the debt of B his covenant is only a furety, and the land the original debtor, which C fhall therefore take with the burthen. And a teftator may fo exempt his perfonal estate, as that although a perfonal debt be fecured by mortgage, the real estate shall answer it; and lands fubject to, or devised for payment of debts, may be liable to discharge mortgaged lands either defcended or devised ".

By this it may be perceived, that an executor might have more in his hands for discharging debts, than was mentioned in the former part of this work; and with respect to legacies, which remain to be confidered, thofe claim the next regard; and after the debts are all difcharged, must be paid by the executor, fo far as his affets will extend: and here he is not allowed to give himself the preference by retaining, as in the case of debts P. But before we enter on the difcuffion of legacies, we fhall advert to what was proposed with refpect to debts barred by the ftatute of limitations, and debts to be paid with interest.

By ftatute 21 Ja. I. c. 16. commonly called the statute of limitations, perfons are barred of actions for debts due on fimple contract, or for arrears of rent, and of actions that may be had for fome other purposes; unless the fame be brought within fix years after the cause thereof commenced, or after the debts or rent became due: but in this act there are exceptions with refpect to infants, perfons beyond fea, and fome others. And there are means by which the bar of the action may be faved, and the debt revived; as it is clearly

agreed, that if after fix years the debtor acknowledges the debt, and promises payment thereof, that this revives it and brings it out of the ftatute; as if a debtor by promiffory note, or fimple contract, promifes within fix years of the action brought, that he will pay the debt; though this was barred by the ftatute, yet it is revived by the promife, which being proved, an action may be fupported for the recovery of it; the acknowledgment and promife being a new evidence of the debt 9. And if the debtor by his will directs, that all his debts fhall be paid, or make any provifion for the payment of his debts in general, this will revive it, and bring it out of the statute, and make his executors liable". Where the debt is confiderable, and there is danger of its being barred by the ftatute, it is common for the creditor within the fix years after the fame was contracted, to fue out a writ, as by way of commencing an action against the debtor; which writ his attorney gets returned by the fheriff, and then enters it on a roll, which he files with the proper officer; and hereby the debt is faved from being barred by the ftatute at the expiration of fix years, as it otherwife might be.

WITH respect to intereft due on debts, of which mention has been made: It feems that where a man devifes his real eftate for payment of his debts, that thofe due on fimple contract, as well as others, fhall carry intereft, because the real eftate, being now the fund out of which the debts are to be paid, yields annual profit. Yet where the real estate is charged only with the payment of debts, lord chancellor Hardwicke feemed to think, that on a general devife of lands, fimple contract debts ought not to carry intereft “.

IN the cafe of Newton and Bennet, H. 1784, where the defendant, as executor, kept the money of his teftator in his hands, without accounting for a long time, and employed it in his trade; and being fued by Newton a creditor. The queftion was, whether he fhall pay intereft? By the lord chancellor: There are many fayings. in the books, to prevent it being laid down as a general

9 1 Salk. 28, 29. 5 Mod. 425, 426. Prec. Cha. 385.

s Page 57.

t 2 P. Will, 26.

u Barnardiston, 230. In the cafe of Shirley and Earl Ferrers, E. 1779, where money was raised by deed upon land, and invefted in the name of a

trustee, to pay debts, the refidue to the ufe of the truftee; the fimple contract debts were not allowed to bear intereft. But if the creditors had filed bills, and obtained feparate reports, from that time their debts would have carried intereft. Brown's Cha, Rep. 41.

rule,

rule, that an executor fhall pay intereft for money used in the course of his trade; but it does not follow that he may keep the estate of his teftator for a long courfe of time idle, from the perfons entitled to it by the will.The doctrine I am defired to lay down is, that an executor may keep his teftator's money, and apply it to the uses of his trade, without being liable to intereft.It has been argued to this extent, that, if the executor is folvent, he fhall not pay intereft; if he is not, he fhall.I cannot fee the reason of that cafe. It is impoffible this fhould have been laid down as the law of the court. I do not fay, he shall pay intereft on the ground of his having called in a debt which bore intereft, because an executor has an honest discretion to call in money which he thinks in hazard; but when it is called in, and made profit of in the way of his trade, I think he should be charged with interest. The books fay, he shall not, because it might be loft, and if it was he must have answered it.-This argu

ment would apply equally to the cafe, where the executor makes actual intereft; for the party to whom it is lent may become infolvent. When the executor did not apply the money to the uses of the will, or bring it hither, I must take it, that he kept it for the purpose of making advantage of it in the way of his trade.-From 1760, Bennet had not a colour of reafon for not applying it.-He has not fhewn any reasonable cause for keeping the money, but has done it merely for the fake of using it in his trade; he therefore must be charged with intereft *.

In the cafe of Perkins and Baynton, E. 1784, where the defendant had made interest of money, and the question was, whether he should pay intereft, and what intereft, for a fum of 8681. which he had received as adminiftrator to his brother, and kept for five years, and from time to time laid it out in government fecurities? The lord chancellor ordered, that interest should be paid upon the 8681. from 1778, when it came into the defendant's hands, to March 1783, when it was paid into court; and that fuch intereft fhould be at the rate of four per cent.

* Brown's Cha, Rep. 359.

y Ibid. 375.

LEGACIES,

LEGACIES, as we have lately hinted, are to be paid after debts; and where there is no time limited for paying a legacy, the executor has one year after the teftator's death for paying it, in like manner as heretofore mentioned concerning diftribution by the ftatute b.It is held that the statute of limitations is no bar to a legacy, although it may have been due twenty years before demanded".

A LEGACY is a bequeft or gift of goods and chattels by will or teftament; and the perfon to whom it is given is ftyled the legatee, which every person is capable of being, unless particularly difabled by the common law or ftatutes d as traitors, popifh recufants, artificers going out of the kingdom, and exercifing their trades in foreign parts: perfons for the fecond offence denying the Trinity, or afferting that there are more gods than one, and fome others.

THIS bequest, being of goods and chattels, vests in the executor, as has been mentioned, and the legacy is not perfect without his affent; for if I have a general legacy of rool, or a specific one of a piece of plate, or horfe, or the like, I cannot in either case take it without the consent of the executor, whose business it is first to fee, whether there is a fufficient fund left to pay the debts of the teftator, to which the perfonal estate is always liable, as we have lately fhewn *. And, in cafe of a deficiency of affets, all the general legacies fhall abate proportionably, in order to pay the debts; but a Specific legacy is not to abate or allow any thing by way of abatement, unless there are not fufficient without it. So

a 2 Salk. 415.

b Page 64.

2 Freem. Rep. 32. d Black. Com. 2 V. 512. e Defined page 102. Stat. 5 Geo. I. c. 27. 8 Stat. 9 & 10 W, c. 32. b Page 156.

i Co. Lit. III. A fpecific legacy (ftrictly speaking) is faid by lord Hardwicke to be a bequeft of a particular chattel, fpecifically defcribed and diftinguished from all other things of the fame kind, or (in other words) an individual legacy. Money therefore, if fufficiently diftinguifhed, may be the fubject of a specific bequeft, as, money in a certain cheft.-So of stock.-So a bequest of part of a specific chattel may be equally a specific legacy. On

the other hand, a mere bequest of quan tity, whether of money or any chattel, is a general legacy, and the purpose to which a general legacy is to be applied will not alter its nature. I P. Will. 540. Note 1. 4 edit. In the cafe of Ashburner and Marguire, July, 1786, lord Thurlow made many learned obfervations on the diftintion between Specific and general legacies, and decreed the principal of a bond for 3500l. to be a fpecific legacy (notwithstanding the fum was named), and to be adeemed pro tanto, or wholly, by the teftator having received part of it in his life time, as a dividend under the bankruptcy of the obligor, 2 Bro. Cha. Rep. 108.

k Page 201.

upon

upon the fame principle, if the legatees have been paid their legacies, they are afterwards obliged to refund a ratable part, if debts fhould come in more than fufficient to exhaust the refiduum, after the legacies paid1.

WHERE any legacy or perfonal eftate is given to one, his executors, adminiftrators, and affigns, or any real estate to one and his heirs (as is common with refpect to legacies or perfonal eftate to fhew the teftator's intention, and fo with refpect to real eftate, to fhew what estate the devisee or perfon to whom the fame is devised fhould have therein); if the legatee or devifee die before the teftator, what was given them will be loft, the fame as if a legacy, or if real estate fhould be given to one perfon abfolutely, without any memtion of any other perfon to whom it fhould go in cafe of his death; as here on the death of the perfon to whom the perfonal estate is given, if he die before the teftator, the legacy will undoubtedly be loft or lapfed", and fink into the refiduum of the teftator's perfonal eftate; and if wanted for paying debts or other legacies, must be applied by the executor for that purpose; if not wanted, must go to the refiduary legatee if any one is appointed; and if no refiduary legatee is appointed, then the fame fhall be difpofed of in manner heretofore fhewn". And, as to the real eftate, it will be as if no devife thereof had been made, and the fame will descend to the teftator's heir at law. But if the teftator by his will gives a legacy, as it may be, of 2001. a-piece to his children payable at their feveral ages of twenty-one years, or days of marriage, and directs that if either die, his or her fhare fhall go to the furvivor; here, if either of the children die before the teftator, the furviving children fhall have the

1 Black. Com. 2 V. 512.-Legatees on the bequest of part of a specific chat tel, though not liable to abatement with general legatees, yet must abate proportionally amongst themselves upon deficiency of fpecific things bequeathed, or on deficiency of general aflets for payment of debts. So, fpecific legatees of diftin&t chattels fhall abate propor tionably on deficiency of general aflets. IP. Will. 540. Note 1. 4 edit.-Where the refidue is not beyond the value of the legacies, the refiduary legatee takes nothing. But in a cafe under fpecial circumstances, where a teftator meant

the furplus as a legacy to his fon, on a deficiency of affets he was allowed to come in with the other legatees; yet of this cafe the prefent lord chancellor has expreffed a disapprobation. 1 P. Will. 305, 306. Note 2. 4 edit.

m Cafe of Maybank and Brooks, M. 1780. Brown's Cha. Rep. 84. In this cafe it was contended for parol evidence to be let in to prove, that the teftator knew at the time of making the will, that the legatee was dead; but it could not be admitted.

n Page 155, 156.

deceased's