#### FREDERICK N. McWILLIAMS *Ex’r against*J. N. FALCON AND OTHERS.

Where money is given by will, as a portion to a child, or to one to whom the the testator stood *in loco parentis,*or for whose support it was intended to make a provision, or where the legacy is demonstrative, and the fund is productive, it was *held*that the legatee is entitled to interest from the death of the testator.

Cause removed from the Court of Equity of Halifax county.

The bill in this case, was filed by the executor to the will of Dudley Clanton, setting forth that the said testator bequeathed his real estate to be sold for the payment of his debts, and that if that were not sufficient for that purpose, his personal estate should be sold, and he directed that he should sell so much of his other personal estate as would with the surplus, remaining after the payment of his debts, be sufficient to raise, in money, $5000, to be held by the executor as a fund for the benefit of the defendant, Prances, the wife of J. N. Palcon, for her sole and separate .use. He provided in the said will that the executor should pay the interest annually to the said Prances during her life, and if she should become discovert, and should need any portion of the principal for her comfort, then to pay to her so much thereof as might be requisite for that purpose; and after her death, to pay what might remain to certain legatees in said will named. The executor in his bill states that he had to sell all the laud for the payment of the debts, and that he then sold a part of the slaves for the payment of the remainder of the debts, and for the purpose *236of raising the fund in question; that owing to difficulties raised as to his right to the possession of the assets, and having to resort to the assertion of his right by suits iu court, the settling of the estate was postponed for several years from the death of the testator, to wit, about seven years ; and the only question presented by the pleadings, is whether Mrs. Ealcon is entitled to have interest counted on her legacy, and paid to her for this space of time.

The bill calls on the persons next in interest to interplead, and to have the question settled by a decree of this Court, so as to protect him.

Answers were filed bjr some of the defendants, and a demurrer filed as to Ealcon and wife, and the cause removed to this Court.

*B. F.*Moore, for the plaintiff.

*Brnis*and Batchelor, for the defendants.

PbaesoN, C. J.

The general rule, according to the English authorities, is to allow a pecuniary legatee interest after the expiration of one year. There are, however, many exceptions. Among others, where the money is given as a portion to a child, or one to whom the testator stood *in loco peurentis ;*or for whose support it was intended to make provision. In such cases, interest is allowed from the death of the testator; because the object, i. e. to furnish means for subsistence does not admit of delay, and the legatee should not be left to starve. So, when the legacy is demonstrative, and the fund is productive; for instance, notes bearing interest, or bank stock paying dividends, or negroes yielding hires; for the amount of the accumulated interest, or dividends, or hires, certainly does not belong to the executor ; nor has the legatee to whom the corpus, (that is the notes, bank stock, or ne-groes) is given, any right to it; nor should it go to increase the residuary fund, or be treated as undisposed of, and divided among the next of kin. Evidently, there is no principle upon which either of these parties can claim a right to be *237benefited by the delay in settling np the estate, and the rule is to consider the executor as having acted as a trustee, and to hold the accumulation for the use of the party to whose prejudice the delay operated; under the maxim “Equity considers that done which ought to have been done,” and will put the party in the same situation as if it had been done; *Beasely*v. *Knox,*5 Jones’ Eq. 1; *Turnage*v. Turnage, 7 Ired. Eq. 127. In such cases, as interest is allowed on the footing of an accumulation of the fund, and not on the ground that the executor is guilty of laches in withholding money that he ought to have paid, the calculation is made from the death of the testator, and not from the qualification of the executor.

The case under consideration, falls within the principle of both these exceptions ; the interest is to be paid to the mother of the testator “ *annually*for her sole and separate useso, it was manifestly the intention to provide her the means of subsistence. The legacy is demonstrative, and the fund out of which it was to be paid, to wit, the negroes, was productive, and yielded annual profits or hires, and there is no reason why the mother of the legatee should be subjected to loss because of the delay which has taken place in settling up the estate, or that any other person should be benefited by such delay.

The position taken in the answer: that interest should not be allowed until the expiration of two years from the qualification of the executor, is untenable. It is supposed to be a corollary from the act of 1789. That act was intended to remedy the evil of a delay on the part of executors and administrators in- settling up estates, on the pretext of outstanding debts, and it requires 'them to settle up and pay over the assets to the legatees and distributees, at the expiration of two years from the time of their qualification, taking refunding bonds for the benefit of such creditors as may not have been paid ; but it is by no means the policy of the law that they should not settle up sooner, if the condition of the estate will allow it, and no inference or deduction from the statute, is admissible, which woiild tend to defeat the object, in aid of which that statute was passed, and to induce executors and *238administrators to delay making a settlement by exempting them from the payment of interest until after the expiration of two years. Most assuredly, this result cannot be allowed where the intention is to provide the means for the subsistence of the object of the testator’s bounty, or the amount is charged on a productive fund.

Per Curiam, There will be a decree declaring that the legatee is entitled to interest from the death of the testator.