By the Lord Chancellor: There are many sayings in the books, to prevent it being laid down as a general rule, that an executor shall pay interest for money used in the course of his trade; but it does not follow that he may keep the estate of his testator for a long course of time idle, from the persons entitled to it by the will. The doctrine I am desired to lay down is, that an executor may keep his testator's money, and apply it to the uses of his trade, without being liable to interest. It has been argued to this extent, that, if the executor is solvent, he shall not pay interest; if he is not, he shall. I cannot see the reason of that case. It is impossible this should have been laid down as the law of the court. I do not say, he shall pay interest on the ground of his having called in a debt which bore interest, 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 say, he shall not, because it might be lost, and if it was he must have answered it. This argument would apply equally to the case, where the executor makes actual interest; for the party to whom it is lent may become insolvent. 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 reason for not applying it. He has not shewn any reasonable cause for keeping the money, but has done it merely for the sake of using it in his trade; he therefore must be charged with interest r. 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 testator's death for paying it, in like manner as heretofore mentioned concerning distribution by the statute t. It is held that the Newton and Bennet, 1 Bro. S 2 Salk. 415. Cha. Rep. 359. t Page 84. statute of limitations is no bar to à legacy, although it may have been due twenty years before demanded" (8). A legacy is a bequest or gift of goods and chattels by will or testament; and the person to whom it is given is styled the legatee, which every person is capable of being unless particularly disabled by the common law or statutes w; as traitors, popish recusants, artificers going out of the kingdom and exercising their trades in foreign parts, persons for the second offence denying the Trinity, or asserting that there are more gods than one y, and some others. This bequest, being of goods and chattels, vests in the executor, as was mentioned in a former part of our work, and the legacy is not perfect without his assent; for if I have a general legacy of 100l. or a specific one of a piece of plate, or horse, or the like, I cannot in either case take it without the consent of the executor 2, whose business it is first to see whether there is a sufficient fund left to pay the debts of the testator, to which the personal estate is always liable, as we have lately shewn. And, in case of a deficiency of assets, all the general legacies shall 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 sufficient without it. So upon the same principle, if the legatees have been paid their legacies, they are afterwards obliged to refund a rateable part, if debts should come in more than sufficient to exhaust the residuum, after the lega cies paid a. A specific legacy, of which we have lately had some description (strictly speaking), is said by Lord Hardwicke to be u 2 Freem. Rep. 32. y Stat. 9 & 10 W. c. 32. z Co. Litt. 111. a 2 Black. Com. 512. (8) But after a lapse of time, forty years for instance, without any demand of the legacy, a court of equity will presume that it is satisfied. Jones v. Turberville, 2 Ves. jun. 11. a bequest of a particular chattel, specifically described and distinguished from all other things of the same kind, or, (in other words) an individual legacy. Money, therefore, if sufficiently distinguished, may be the subject of a specific bequest, as, money in a certain chest.- 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 quantity, whether of money or any chattel, is a general legacy, as of a quantity of stock, and where the testator has not such stock at his death, it is a direction to the executor to procure so much stock for the legateeb. Personal annuities given by will are general legacies, and a devise of an annuity for life charged on the personal estate, where there is a deficiency of assets, shall abate in proportion with the other legatees © (9). с b 1 P. Will. 540. note 1. 4th edit. Hume v. Edwards, 3 Atk. 693. (9) Lord Thurlow has remarked that it is generally a difficult question to decide whether a legacy be specific or pecuniary. Stanley v. Potter, 2 Cox, 182. And it is to be observed, that the same legacies may be specific in one sense, and pecuniary in another; specific, as being given out of a particular fund, and not out of the estate at large; pecuniary, as consisting only of definite sums of money, and not amounting to a gift of the fund itself, or any aliquot part of it. Smith v. Fitzgerald, 3 Ves. & Bea. 5. The ordinary criterion of a specific bequest is, that it is liable to ademption; that if the thing bequeathed is once gone, it is lost to the legatee; and to render it specific, the legatee must consequently be able to fix on the individual thing given. The difficulty which has arisen in many of the cases on this subject has proceeded from not adverting to the distinction between a gift of a sum of money; with a reference to the fund from which it is to be taken, which is termed a demonstrative legacy, and is payable, though the fund out of which it is directed to be paid does not exist at the testator's death; and a bequest of the fund itself, or an aliquot part of it, as a gift "of my stock," or "in my stock," or part of my "stock," which, when the particular stock is referred to, is clearly specific. 4 Ves. 750. Parrott v. Worsfold, 1 Jac. & 66 In a late case Lord Thurlow citing a variety of cases pertaining to specific and general legacies, made many learned observations on the distinction between them; and his lordship held the bequest of a bond for 3500l. to be a specific legacy, but that the same was not adeemed by the testator having received part of it in his lifetime, as a dividend under the bankruptcy of the obligor; it appearing to be the testator's intention that the legatee and her children should have the debt secured as a provision for them. In the same case where a legacy was "of my 1000l. East-India stock," it was clearly held to be specific, and adeemed by the testator's having sold the stock. And where testator reciting that he was possessed of a certain sum in navy bills, bequeaths it. This was held to be a specific legacy, and to pass only such navy bills as he possessed at his death * (10). d Ashburner and Maguire, 2 Bro. Cha. Rep. 108. e Pitt v. Camelford, 3 Bro. Cha. Rep. 160. Walk. 602. In the case of a specific bequest of stock, an error in the description of it, as if stock of one denomination be given, and the testator have only stock of a different kind, will not vitiate the legacy, if it be manifest that the testator intended the stock, though misdescribed, should pass. Door v. Geary, 1 Ves. sen. 255. Penticost v. Ley, 2 Jac. & Walk. 207. But if the testator have not any stock, the legacy fails, and nothing passes by the gift. Evans v. Tripp, 6 Madd. 91. So in other cases of error demonstrationis, the misdescription will be rejected, and the bequest, though specific, will carry the thing misdescribed, if consistent with the testator's intent. Thus, a gift of a grey horse will pass a black horse, which is not strictly grey, if it be found to have been the testator's intention that it should pass by that description; but if the testator had no horse, the executor is not to buy a horse. Id. Ibid. The late decisions have leant much grey against specific legacies requiring a clear indication of intention to make a legacy specific. They are referred to in Apreece v. Apreece, 1 Ves. & Bea. 365. n. (a). See also, Mann v. Copland, 2 Madd. 223. Barker v. Rayner, 5 Madd. 208. (10) The principle of ademption by receiving or selling the thing given is, that the thing given no longer exists; for if, after the receipt or sale of it, it could be demanded, that A specific legacy, as it has in some respects the advantage, so in other respects it has the disadvantage of a general would be converting it into a pecuniary instead of a specific legacy. Fryer v. Morris, 9 Ves. 360. In respect to the application of the doctrine of ademption, a distinction prevails between a demonstrative and a specific legacy. In the former case, the destruction of the fund or security will not operate as an ademption of the legacy. Thus, where the bequest was of 500l. "we have now out upon mortgage," which the testator afterwards called in, Sir William Grant held that this was not an ademption, the characteristic of the legacy not depending on the particular security on which the money might be placed, which the testator considered as merely accidental, and only mentioned as descriptive of the present situation of the money. Le Grice v. Finch, 3 Meriv. 50. See also Attorney General v. Parkin, Ambl. 566. But if the bequest assume the character of a specific bequest, as, if the security or the fund itself be specifically given, the legacy will fail if the security or fund does not exist at the testator's death. Therefore, where there was a bequest of two policies of insurance upon life, and the amount of the policies was received by the testator, the legacy was held to be adeemed. Barker v. Rayner, 5 Madd. 208. In the earlier cases a distinction was taken, on the question of ademption, between voluntary and compulsory payments, and proceeding upon the animus adimendi, it was held, that where a testator received a debt which he had specifically bequeathed without solicitation, and ex mero motu of the debtor, it was no ademption; but that where it was paid to him by the debtor, upon his application, or by compulsion, it was an ademption. Partridge v. Partridge, For. 228. Crockatt v. Crockatt, 2 P. Wms. 164. Rider v. Wager, Ib. 328. In the case of Ashburner v. Maguire, Ambl. 401., Lord Thurlow entered very fully into the consideration of all the cases which are to be found on this subject; and in that case, and also in Stanley v. Potter, 2 Cox, 180., he altogether repudiated the principle of the animus adimendi, as tending to inexplicable confusion; and held that when it was once determined that the legacy of a debt was specific and not demonstrative, that the only safe and clear way was to adhere to the plain rule; that there is an end of a specific gift, if the specific thing do not exist at the testator's death. It may be questionable from the cases of Coleman v. Coleman, 2 Ves. jun. 639. and |