
    Richmond.
    Anderson, adm’r &c. v. Burwell’s ex’ors.
    
    1849. October Term.
    
    (Absent Cabell, P.)
    1. A testator, after setting apart a fund for the payment of his debts, and after certain specific devises and bequests, directs the remainder of his estate to be sold, and out of the proceeds of sale, gives specific sums to his wife and nephew, and directs the balance to be divided between his sister and niece. And he further directs, that if the fund for the payment of debts is not sufficient, his wife, nephew, sister and niece shall contribute ratably to pay them. The fund proves insufficient, and the legacies are abated; and the fund in the hands of the executor, out of which these legacies are to be paid, is all interest, and therefore does not bear interest. Held : The legacy given to the wife, after being abated, shall be paid with interest.
    2. In this case the testator died in 1791, a suit was commenced in 1818, by the administrator of the wife, against the executors of the executor, for the recovery of the legacy left to her, to which neither the nephew nor the sister, or their representatives, were at any time made parties. In 1845, the final decree was made, which ascertained the amount in the hands of the executor applicable to the payment of the four legacies, and directed the payment of that given to the wife. The administrator of the sister then filed his bill to enforce payment of the legacy to the sister, and made the administrator of the nephew a party defendant, who answered, claiming his legacy. The executors relied on the lapse of time, and shewed facts from which it was inferrible that both legacies had been paid. Held: That independent of the probability that the legacies had been paid, the lapse of time is an insuperable bar to the claims.
    This case was before this Court in 1831, and is reported in 3 Leigh 384, under the style of Burwell’s ex’ors v. Anderson, adm’r &c. It was a second time before this Court in 1843, upon an appeal by Anderson, administrator &c. The appellant claims under the will of Dr. William Pasteur, late of the City of Williamsburg.
    
    
      
      Dr. Pasteur died in 1791, owning a tract of land, with slaves and other property in the county of Goochland, and a considerable property, real and personal, in Williamsburg and in the county of 'York. By his will, after providing a fund for the payment of his debts, and making some specific bequests, he devised all the rest of his estate to his wife for life; and after her death, the whole was to be sold and “ distributed in the manner following: I desire my beloved wife, by her will or otherwise, as she pleases, may have the absolute disposal of £ 500 part thereof. I give my nephew William Pasteur, to be paid to him when he attains the age of twenty-one years, the sum of £ 200 sterling, other part thereof.”
    “ And it is my will and desire, after deducting the two last mentioned sums, that two third parts of the residue be paid to my niece Ann Smith, for her own use, and that the remaining third part of the residue be paid to my friend Nathaniel Burwell of Martin’s hundred, for the use and benefit of my sister Ann Craig, to be always at her disposal, in such manner that her husband Thomas Craig, and the creditors of said husband, may have no power over it. I give to my said beloved wife the absolute property in my chariot.”
    “ It is my will and desire, that if the estate hereby before directed to be sold for the payment of my debts, should not prove sufficient for that purpose, that whatever sum my other estate should be called upon to make up, shall be deducted in equal proportions according to the sums devised in money to my wife, to my nephew, to my niece, and my sister as aforesaid.”
    
      Nathaniel Burwell was appointed executor of the will, and qualified as such.
    This Court, when the case was first here, decided that the legacy of £ 500 to Mrs. Pasteur, was given to her absolutely; and that although she had made no disposition of it, her administrator was entitled to recover it. And it having been ascertained that the fund provided by Dr. Pasteur for the payment of his debts was not sufficient, it was held that the legacies to Mrs. Pasteur and William Pasteur must abate ratably with the bequests to Mrs. Smith and Mrs. Craig. And the rule by which the legacies were to abate was prescribed. After the second decision of this Court upon the case, the cause came on to be heard in the Court below, in March 1845, and the balance found against the executor being all interest, and therefore not bearing interest, that Court held that the money legacies bequeathed by the will of Dr. Pasteur to his wife, his nephew, and his niece and sister, were all in the nature of residuary legacies, and were intended by the will to be placed on a similar footing; and that as the fund was insufficient to pay even the principal of these legacies, interest ought not to be allowed to any of them to the prejudice of the rest. And it appearing by a statement made according to the rule prescribed by this Court, by which these legacies were to abate so as to ascertain the proportion of the distributable fund which belonged to each, that Mrs. Pasteur was entitled on account of her legacy, to 615 dollars 99 cents, and that she was entitled on account of the chariot bequeathed to her, and which had been sold by the executor, and on account of a debt due to her, to the further sum of 251 dollars 32½ cents, on the 1st of January 1816, of which 234 dollars 82 cents was principal, making the whole amount due her 867 dollars 32½ cents, the Court decreed that the executors of Nathaniel Burwell. out of the assets of their testator, if so much they had, and if not, out of their own estate, they admitting assets, should pay to the plaintiff the said sum of 867 dollars 32½ cents, with interest on 234 dollars 82 cents, part thereof, from the 1st day of January 1816, until paid, but without costs. Upon this decree, the plaintiff took out an execution, and the clerk fixed the interest at six per cent, per an
      
      num, instead of five per cent.; the debt having been incurred m 1793.
    At the same term of the Court, Robert Anderson, as administrator of Ann Craig, who, or whose representative) had not before been a party to the suit, asked leave to file an amended and supplemental bill, claiming the legacy of said Ann Craig as unsatisfied; and George W. Richardson, administrator de bonis non of William Pasteur the younger, at the same time asked leave to file his answer to said bill. These motions were opposed by the executors of Nathaniel Burwell, on the grounds that the amended bill was offered by the representative of a new party not claiming in any way under the plaintiff in the suit; and that it was the assertion for the first time of an old and stale claim, asserted after the lapse of more than fifty years, on behalf of parties who never asserted such claims in their lifetime.
    The Court allowed the bill and answer to be filed, and sent the cause to rules for further proceedings to be had thereon.
    The amended and supplemental bill sets up the claim to Mrs. Craig’s legacy; states that William Pasteur the younger, was also entitled to a legacy under the will of Dr. Pasteur, and makes Richardson, sheriff of the county of Fluvanna, and as such administrator de bonis non of William Pasteur the younger, and Nathaniel Burwell’s executors, defendants, and asks for the amount due the plaintiff’s intestate.
    
      Richardson, in his answer, says he has no personal knowledge of the matters stated in the original and amended bills; but he claims from Burwell’s executors the amount of the legacy bequeathed to his intestate by William Pasteur the elder.
    
      Burwell’s executors answered the amended and supplemental bill. They say, that William Pasteur died in 1791; that in 1792, after the death of Mrs. Pasteur, the executor sold all the property and paid the debts and legacies : That in the year 1810, he settled his accounts before commissioners appointed by the Court of probat, and the account was returned to the clerk of said Court, by which it appeared that there was a balance in favour of the executor of £ 328. 3. 8½. That from an account, kept in the books of their testator, between himself and Ann Craig, it appears that from the year 1792, when she is charged with her purchases at the sale of William Pasteur’s estate, to 1796, when the account terminates, he had advanced to her £211. 9. 2½. That they learn from the plaintiff’s supplemental bill, that Ann Craig died after the year 1818 ; and during her life she does not appear ever to have claimed that her legacy remained unpaid. That it had not been set up by her representative until a few months previous. They, therefore, rely upon the lapse of more than fifty years since her right accrued, as a bar to this suit, especially as both the executor and Mrs. Craig are dead, and neither of their present representatives can have any knowledge of the original transaction. That the only knowledge they have of the payment of this claim by their testator to Ann Craig, is that contained in the settled administration account aforesaid, in which they find the sum of £ 211. 9. 2½. charged to her on account of her interest under the will of William Pasteur, in his estate. And this, they have no doubt, was more than she was entitled to, as on that account the executor was in advance to the estate £ 328. 3. 8½. They have no doubt that the items in this account, against Ann Craig, were supported by vouchers before they were admitted by the commissioners, but they do not know where these vouchers now are.
    They say they have no personal knowledge of the mode in which the legacy of £ 200. to William Pasteur, jr., was paid ; but they believe it was adjusted by his purchasing at the sale of the property of William Pasteur, sr., an amount fully equal to the amount of his legacy. That this belief is induced by the fact that after the treaty with Great Britain, known as Jay's treaty, the executor of William Pasteur was obliged to pay large sums of money to British creditors of William Pasteur; and he instituted an action in the County court of Fluvanna against William Pasteur, jr., to recover back the whole or a part of the money paid to him on account of said legacy, which suit, they are informed by a letter written about the time by a gentleman who was counsel in the cause, but who was not present at the trial, was lost through the mismanagement of counsel. That all the distributees of William Pasteur, sr., except Ann Craig, who was very poor, and William Pasteur, jr., did pay back a part, if not the whole, of the money they had received from the executor Nathaniel Burwell, when he was obliged to pay the British creditors. They do not know when William Pasteur, jr., died, but he was alive in 1809, when the suit aforesaid was pending against him; and they rely upon the lapse of time as a bar to the claim, especially as they believe it has been fully paid at least fifty-five years since.
    The defendants filed with their answer the letter referred to, and also a copy of the record in the case against William Pasteur, jr. This was an action of assumpsit founded on an account which purports to be for slaves and other property purchased at the sale by the executor, and money paid by the executor’s agent.
    The cause came on to be heard in March 1848, when the Court made the following decree: The Court regarding the present proceeding by an amended and supplemental bill as virtually a new suit to recover legacies due more than fifty years ago to Ann Craig and William Pasteur, jr., and being of opinion that these circumstances, independent of the presumption from length of time, tend strongly to shew that the claims of both Mrs. Craig and William Pasteur have been satisfied, and being further of opinion that were this less probable, the length of time is itself an insuperable obstacle to the relief asked by the amended and supplemental bill of Ann Craig’s administrator, and by the answer of the defendant, the administrator de bonis non of William Pasteur deceased, because the Courts ought not, upon sound principles of equity, as well as of public policy, to open their doors to parties who have slept on their rights for a time double that which would bar a writ of right, unless perhaps in cases of fraud, doth therefore adjudge, order and decree, that the said amended and supplemental bill be dismissed, with costs. From the decrees of March 1845 and March 1848, Anderson, as the administrator of Mrs. Pasteur, and of Mrs. Craig, applied to this Court for an appeal, which was allowed.
    
      Stanard & Bouldin, for the appellant.
    The Court below erred in refusing to give interest upon Mrs. Pasteur’s legacy. A legacy in its own nature bears interest at least from the end of the year after the testator’s death, unless some other period is fixed by the will: And this is without regard to the question whether the fund out of which it is to be paid is or is not productive. 2 Roper on Leg. 1245; Lloyd v. Williams, 2 Atk. R. 108; 2 Rob. Pr. 106, 7, 8, and the cases there cited.
    The ground on which interest was refused in the Court below, is, that the fund out of which the legacies were to be paid, was unproductive, and if interest was allowed on Mrs. Pasteur’s legacy, the fund would be exhausted, so that the residuary legatees would get nothing. This objection was suggested in some of the earlier cases, but it has been exploded. Gibson v. Bott, 7 Ves. R. 89; Pearson v. Pearson, 1 Sch. & Lef. 10; 2 Roper on Leg. 1251; Lloyd v. Williams, 2 Atk. R. 108; 2 Lomax’s Ex’ors 154; 2 Maddox Ch. 78.
    
      Another ground taken by the Court below is, that all these legatees are residuary legatees. There is nothing in the will of Dr. Pasteur to authorize this assumption. The will directs that Mrs. Pasteur and William Pasieur, jr., shall be first paid; and then that Mrs. Smith and Mrs. Craig shall have the residue of the fund. The provision of the will providing for the abatement of the legacies had the effect to reduce the sum which Mrs. Pasteur was to receive as her legacy, but not to change its character. If William Pasteur had died before the testator, it cannot be pretended that Mrs. Pasteur would have been entitled to share this fund; and if not she cannot be a residuary legatee.
    We have found no case in which the point involved in this case has been directly decided; but the principle involved in it has been repeatedly recognized. 1 Roper on Leg. 412; Farmer v. Mills, 3 Cond. Eng. Ch. R. 580; Scott v. Salmond, 7 Id. 86; Attorney General v. Poulden, 3 Hare’s R. 555.
    The supplemental bill of Craig's administrator was dismissed on the hearing by the Court below, on the ground that it was filed too late. The bill was filed so soon as a residuum was ascertained to exist. We do not understand that Courts of equity ever refuse relief on the ground simply of lapse of time. In this case there has been no payment away of the fund; no new rights have accrued, no innocent persons are to suffer, no loss of evidence has occurred.
    The executors of Nathaniel Burwell do not pretend that they have paid Mrs. Craig's legacy. Then, did their testator pay it ? These parties attempted to defend themselves upon the ground of the presumption of payment of Mrs. Pasteur's legacy in the case of Bur-well's executors against Anderson, but they failed. That was a specific legacy, and this Court held that the presumption of payment did not exist. It is a fortiori, 
      therefore, that there can be no presumption of the payment of a residuary legacy.
    But further, Nathaniel Burwell made an ex parte settlement of his executorial accounts in 1810; certainly he did not admit then that there was a residuum. If there was no residuum, the residuary legatee could have received nothing; and in fact it was not ascertained that there was a residuum until 1845.
    In this account of 1810, the executor charges Mrs. Craig with £ 211. 9. 2½. on account of her legacy. This was not a payment in money, but by an account of Nathaniel B uno ell against Mrs. Craig. If this is a proper charge, it must be conclusive to shew that he paid no more: And that was much less than the amount to which she was then entitled. But this account shews on its face that it is a private account between Nathaniel Burwell and Ann Craig. There is no proof of it, though there was an attempt and a failure to prove it in 1821, and again in 1826. If then they failed to prove it in 1848, it was not because of the loss of evidence but because it never existed.
    If Mrs. Craig had been a party to this controversy from its commencement in 1818, she could not have had a decree for her legacy until 1845, when the existence of a residuum was first established. She was entitled to nothing unless there was a residuum ; and this question was prosecuted by the specific legatee from 1818 up to 1845. Surely there was no necessity for two suits to establish the same facts.
    
      Cooke, for Burwell's executors,
    submitted a printed argument.
    In support of the proposition that legacies bear interest when the executor has assets, the counsel for Anderson referred to 2 Roper on Leg. 1245, et seq.; Lloyd v. Williams, 2 Atk. R. 110; 2 Rob. Prac. 106, 107 and 108, and the cases there cited; 2 Lomax’s Dig. 154; and he could easily have referred to a hundred other cases to the same effect. For there is no doctrine better established.
    But, to.make the doctrine useful to Anderson, administrator of Mrs. Pasteur, he must shew that Col. Burwell, executor of Dr. Pasteur, had assets in his hands wherewith to pay interest on her legacy.
    The Court of appeals, in its decree of December 10, 1831, took great pains to settle every principle which could bear on the question of the amount of assets in Col. Burwell's hands, subject to these legacies.
    It is impossible that anything can be more perspicuous.
    It is admitted by the counsel, that those principles have been carried out in the paper, which is the basis of the decree complained of, so far, at least, as to ascertain that the residuum, divisible on some terms, or on some principles, among Elizabeth Pasteur, William Pasteur the younger, Ann Smith and Ann Craig, is 4392 dollars 82 cents. They admit, too, that, according to the doctrines of this forum, reviewed and affirmed by this Court, in this very controversy, (3 Leigh 348,) there is no power in Venice which can make Col. Burwell liable for one dollar of interest on the 4392 dollars 82 cents, the whole of it being interest. They admit, too, that if it be conceded that Mrs. Pasteur cannot recover interest from any quarter, the court below has correctly decided that 615 dollars 99 cents is the true amount of her abated legacy.
    Whence, then, is the interest claimed for Mrs. Pasteur to come ?
    The learned counsel answer that it must come out of the shares or legacies of her co-legatees, Ann Smith and Ann Craig. And they have cited, in order to sustain this doctrine, that Mrs. Pasteur has a right to devour her co-legatees, the sister and niece of her husband and testator, a number of English authorities, namely, Roper on Leg. 412; Farmer v. Wills, 4 Cond. Eng. Ch. R. 86 ; Scott v. Salmond, Id. vol. 7, p. 86; Attorney General v. Poulden, 3 Hare 555.
    But these authorities merely set forth the undisputed doctrine that where a testator gives to A 500 dollars, and to B the residuum of his estate, A will receive interest on his legacy, to the diminution of B’s residuum.
    But this will of Dr. Pasteur is not such a will as I have just stated. It is a will of a special and peculiar character, and received an exposition by this Court, in Burwell v. Anderson, on the 10th December 1831.
    The Court, after pointing out, in detail, and with great precision, the mode of ascertaining the amount and character of the fund remaining in the executor’s hands, goes on to say:
    “ After having ascertained the true state of the executorial account, the commissioner should proceed to state an account, in order to ascertain the proportion of their legacies which the respective legatees were entitled to receive, after payment of the debts of the estate, in which statement the whole of the pecuniary legacies, including the risiduary legacies, are to abate proportionally. In order to attain the result, the commissioner should first ascertain the whole amount of the principal of the estate, then deduct that portion first appropriated by the will to the payment of debts, and the balance will shew what would have been the residuum (if not reduced by debts) out of which Mrs. Pasteur was to have received her five hundred pounds, and William Pasteur's nephew his £ 200 sterling ; and after deducting these, Mrs. Craig would have had one third of the residue, and Mrs. Smith the balance. And thus, the proportion of their respective legacies, in case the residuum was unimpaired, is ascertained.
    “But as the residuum was, in fact, greatly reduced by debts, the legacies must abate, and as by the will the abatement is to fall upon all the legacies, and not on 
      
      the residuum alone, the commissioner will make the following statement: as the whole residuum, if unimpaired by debts, is to the five hundred pounds legacy, so is the real residuum, as reduced by the debts, to the real sum due Mrs. Pasteur on account of the legacy of five hundred pounds.”
    On this exposition comment is unnecessary. It is a total extinction of Mrs. Pasteur's jus devorandi—or right of eating up her co-legatees.
    2. But the petitioner, Anderson, insists that the Court below should have allowed him costs, viz: in the decree of 1845.
    The answer to this claim is, 1. That the decree was not a final one, as will presently appear; and so it was not necessary to decide the question of costs, though it might have been done.
    2. But if the decree is to be considered as final, then I say that the Court properly refused to give Anderson his costs. And for this I refer to Pearson v. Pearson & al. 1 Sch. & Lef. 10.
    In this case, as far as regards Mrs. Pasteur's claim to the legacy of £ 500, there were grave doubts whether she took anything. Nay, as late as 1831, it was strenuously urged by able counsel, that she took nothing, but a mere power to dispose of £ 500, which she never exercised, and which died with her.
    Before I leave this part of the case, I beg leave to suggest that the decree of the Court below is erroneous, in omitting to state the rate of interest on the interest-bearing part of the decree against the executors. They are decreed to pay 234 dollars 82 cents, “ with interest thereon from the 1st day of January 1816, till paid.” It ought to have been 5 per cent. For want of such specification, the plaintiff Anderson, obtained from the clerk ah execution for the amount of the decree, including the 234 dollars 82 cents, with interest at the rate of six per cent. And though he did not place the execution in the hands of the sheriff, he received the six per cent, interest, as an authenticated copy of the receipt of his agent, now before me, shews. I ask that the decree may be corrected in this particular.
    The fact that Ann Craig’s administrator and William Pasteur’s sheriff-administrator de bonis non, who are the actors in this new suit, arc, in it, preferring, for the first time, their respective claims to a legacy which fell due more than half a century before this proceeding or new suit was commenced, is one which no ingenuity can explain away, or get round or over.
    A large portion of the argument by Anderson’s counsel, is devoted to the establisment of the proposition that the peculiar circumstances of this case repel and repudiate the presumption that these legacies have been paid by Dr. Pasteur’s executors. If the learned counsel had succeeded in this effort, (which they assuredly have not,) they would have but established an immaterial proposition.
    
    For, if the adjudicated cases establish any principle, they establish this, that stale and ancient claims are rejected and repudiated by Courts of equity, simply because they are stale and antiquated, and on grounds of public policy, even though there be no ground to presume payment, but the contrary. Look at the doctrine of Lord Camden, in Smith v. Clay, quoted in 5 Leigh 171, and see if any thing is said there about a presumption of payment from lapse of time, and no demand made :
    “ A Court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale claims, where the party has slept on his rights, and acquiesced for a great length of time. Nothing can call this Court into activity, but conscience, good faith and reasonable diligence; where these are wanting, the Court is passive and does nothing. Laches and neglect are always discountenanced, , and, therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this Court.”
    Again, Judge Carr says, in Carr v. Chapman, 5 Leigh 173:
    
      a Equity, always averse to stale claims, will not be ‘called into activity,’ in aid of legatees after a great lapse of time; especially if the original parties are all dead, [as in the case of Anderson v. Burwell,] and their representatives allege their inability to furnish the accounts. It was said that this rule did not apply to residuary legatees; but I think it applies to them especially ; for their claim always involves a settlement of the whole accounts of the administration.”
    Again, in Bonney v. Ridgard, 1 Cox 145, (referred to by Judge Carr, in Carr v. Chapman, 174:)
    “ Lord Kenyon considered the transaction one which would have been set aside, and relief given, if the bill had been filed in time; but upon the length of time that had elapsed, between the plaintiff's’ right accruing, and their prosecuting it, he refused relief.” Not a word is said about a presumption of compensation or satisfaction of the claim.
    In the same page, (174,) Judge Carr quotes with approbation the opinion of Lord Erskine, in Hillary v. Waller, 12 Ves. R. 239. Judge Carr says, “ The general ground of presumptions from length of time, is also very clearly taken by Lord Erskine in Hillary v. Waller. He considers the doctrine as founded on reason, the nature and character of man, and the result of human experience.”
    “ It resolves itself (says Lord Erskine) into this, that aman will naturally enjoy what belongs to him.”—“It has been said you cannot presume unless you believe. It is because there are no means of creating belief or disbelief, that such general presumptions are raised,” &c. &c.
    
      Again, Judge Carr, in p. 175, at the bottom, refers to Hercy v. Dinwoody, 2 Ves. jr. R. 87:
    
      “ There a bill was filed by creditors for an account: it was filed recently and answered; it remained in Court with but few further proceedings, and, thirty-three years after, the executors being dead, the bill was revived against their representatives and devisees; the master of the rolls refused the account and dismissed the bill. It was contended, there, that the matter being in suit, and the defendants called on to account, they could not discharge themselves by a payment or settlement in pais; and therefore that this case was not open to the presumption applicable to others.
    The master of the rolls admitted this, but said, “ For the reasons given in Deloraine v. Browne, 3 Bro. C. C. 633, independent of the question of satisfaction, but on account of the very neglect, and the mischief and disturbance that may arise to families, though the presumption of satisfaction is not so strong, yet the laches and neglect may be such as to make it matter of public policy, that the party guilty of it shall abide by the consequences.”
    
    It is abundantly clear, from these authorities, that it is not incumbent on the two surviving executors of Col. Burwell, executor of Pasteur, to contend that these legacies must be presumed to have been paid. The doctrine they have a right to rely on is, that these two actors, viz : Ann Craig’s administrator and William Pasteur, jr.’s, administrator de bonis non, have forfeited by their laches, all claim to the assistance of a Court of equity.
    This is a naked, unmitigated case of sleeping for half a century and more. Neither the bill of Ann Craig’s administrator, nor the answer of William Pasteur’s administrator de bonis non, attempts to explain or excuse the long delay that has taken place.
    
      But if the defence were merely, that, after so great a lapse of time, so long a non-claim, payment ought to be presumed, it would equally be borne out and sustabled. The mere fact of non-claim for fifty odd years’ raises a strong presumption that there was no claim, or rather that it was discharged at an early day.
    
    But the record of the action of Pasteur’s executors against Pasteur, shews that the executors contended, in 1802, that young Pasteur had received, in purchases and cash, above £ 400. They were defeated, it seems, by the mismanagement of their counsel, in 1808. There can be little doubt that Pasteur set up his legacy of £ 200 sterling as an offset against the claim of the plaintiff. If he did not—if the legacy was then unsatisfied—why did he not, while his blood was hot with litigation, bring a suit for his legacy ? The parties were at war about the state of their accounts, in 1808. The war ceased: it is not renewed till after the lapse of thirty-seven years; and then, not by Pasteur, nor by Pasteur’s first personal representative who, it must be presumed, got the books and papers of his intestate into his possession, but by a sheriff-administrator de bonis non, who frankly admits that he knows nothing about the claim, good, bad or indifferent.
    Then, as to the presumption that Ann Craig’s legacy was paid. Gentlemen say that there is no proof that any part of it was paid.
    Have gentlemen forgotten the A B C principle, that these County court settlements are prima facie evidence for the executor. The recorded settlement made in this case in 1810, credits the executor with £ 211. 9. 2½. paid to Ann Craig “under the will.” If the answer filed in this cause by the executors be true, the items making up this sum ran on from 1792 to 1796 ; though in the settled account it is dated 1809. Gentlemen say that there was due to Ann Craig, as of May 1806, 1156 dollars 28 cents. I have not examined their statement or calculation; but concede it to be so. If on the sum of £ 211. 9. 2½., or 704 dollars 87 cents, interest from 1794, the medium date of their payments, be calculated at 5 per cent., the amount will be 1127 dollars 75 cents, or within 28 dollars 53 cents of the alleged amount of the legacy.
    This was the state of things in 1806. In 1810 the account was settled by the executor, and no further payments had then been made. But Col. Burwell, for all that appears in this record, (and in fact,) survived this settlement several years, say seven. Ann Craig was exceedingly needy, and must be presumed, as she lived till after 1818, to have asked and received further payments or advances by the executor.
    But it is said that the executors of the executor do not claim that more than £ 211. 9. 2½. has been paid to Ann Craig. The answer is, that they know little or nothing about the matter, except that in a book of Col. Burwell, they find an account stated, beginning in 1792 and ending in 1796, shewing payments to Ann Craig of £ 211. 9. 2½. For aught they know, their testator may have made payments after the settlement, the evidence of which is now lost. They say they know not where the vouchers are.
    But after all, the great question of the case is, will this Court of equity entertain a bill for a legacy exhibited fifty odd years after the legacy was due, in which bill not even an attempt is made to account for, or excuse the delay.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that Dr. William Pasteur by his will having directed that out of the proceeds of the residuum of his estate, directed to be sold, there should be paid a legacy of £ 500 in favour of his wife Elizabeth Pasteur, and a legacy of £ 200 sterling to his nephew William Pasteur; and that, after deducting these sums, the residue of said proceeds should be paid, in given proportions, to his niece Ann Smith, and for the use and benefit of his sister Ann Craig: the effect of these provisions was to constitute his said neice and nephew residuary legatees of said proceeds, in reference to the said pecuniary legacies to his wife and nephew. But that the said will having also directed that if a certain fund, thereby appropriated to the payment of the testator’s debts, should prove inadequate for that purpose, then that the deficiency should be made up by deducting the amount thereof, in ratable proportions, from the legacies bequeathed as aforesaid to his wife, nephew, niece and sister; the effect of this provision was to place them all, in reference to the testator’s creditors, upon the same footing, to wit, that of residuary legatees ; without, however, in any wise disturbing the relation above mentioned in which they stood in reference to each other. After the reduction, therefore, of the said several legacies requisite for the payment of debts, the reduced sums payable to the said Elizabeth Pasteur and William Pasteur, on account of their legacies, stood upon the same footing as if those reduced sums had been specified in the will, as the pecuniary legacies bequeathed to them respectively. And as according to the well settled rule of equity, pecuniary legacies payable out of the residuary estate bear interest until payment, whether the fund out of which they are to be paid be productive or unproductive, it follows that though the residue of the estate in the hands of the executor, after payment of debts, consisted wholly of interest, yet that the abated legacy of Mrs. Pasteur ought to carry interest at the rate of 5 per cent, per annum, from the 1st day of January 1793 until paid.

The Court is therefore of opinion, that so much of the Chancellor’s decree of the 31st of March 1845, as fails to allow interest on 615 dollars 99 cents, the abated legacy of Mrs. Pasteur, at the rate of 5 per cent, per annum from the 1st day of January 1793 till paid, is erroneous.

And the Court is further of opinion, that by a clerical misprision, the said decree of the 31st of March 1845, is also erroneous in giving interest at 6, instead of 5 per cent, on 234 dollars 82 cents, also found in favour of Mrs. Pasteur, and which, with a portion of interest which had accrued thereon prior to the 1st of January 1816, and the said sum of 615 dollars 99 cents, her abated legacy, makes the aggregate sum of 867 dollars 32 cents directed to be paid to the appellant.

And the Court is further of opinion, that the said decree of the 31st of March 1845, is moreover erroneous in refusing to allow to the appellant his costs by him expended in the prosecution of his original bill.

And the Court is further of opinion, for the reasons assigned by the Chancellor, that the claims to the pecuniary legacy of £ 200 sterling to William Pasteur, and the residuary legacy to Ann Craig, ought not to he sustained ; and therefore that there is no error in the decree of the 14th of March 1848.

It is therefore adjudged, ordered and decreed, that so much of the decree of the 31st of March 1845, as is in conflict with the foregoing opinion, be reversed and annulled, and that the residue thereof, and the decree of the 14th of March 1848 be affirmed, with costs to appellant : and the cause is remanded to the Chancery court to be proceeded in according to the principles above declared.  