#### JOHN BEASLEY AND ANOTHER *against*THOMAS D. KNOX, *Adm’r.*

Where a legacy is payable out of a fund, consisting of bonds and notes, drawing interest, and the legatee refuses to take the securities themselves, he is, nevertheless, entitled to interest from the death of the testator, but on account of his refusal to take the notes, he shall not recover his costs in a suit for such interest

Cause removed from the Court of Equity of "Washington county.

John B. Beasley died on the-day of January, 1856, having made and published his last will and testament, the first and second clauses of which, are as follows, viz :

“ Eirst of all, I give and bequeath to my son, John Beasley, five thousand dollars out of the bonds and money that may be on hand at my death, to be paid by my executors without charge of commissions.

*2“ Second. I give and bequeath to my son, Joseph, four thousand dollars, in like manner, as above expressed, as well as what I have already given him, making, in all, five thousand dollars, without charge by my executors of commissions.” There was a residuary clause, giving the remainder of his estate to his wife’s younger children.

This will being admitted to probate, at February Term, 1856, (the executors, therein nominated, having died in the life-time of the testator,) the defendant was appointed administrator, with the will annexed, at that term, and entered upon the discharge of the duties of the office. There was no money on hand at the death of the testator, but he left notes and bonds on hand to the amount of $15,000. These, the defendant proceeded to collect, with all convenient speed, and out of the moneys, thus arising, he paid the debts of the estate to the amount of some eight thousand dollars, and has since paid off both the legacies, given to John and Joseph, with interest thereupon, from the end of two years after he qualified as administrator, but refused to pay interest for any greater period.

The bill is brought for an account and the recovery of the interest thereon from the date of the testator’s death.

The defendant, shortly after he qualified, offered the plaintiffs payment of their legacies, out of any bonds or notes on hand that they might select, which they declined, and insisted on the payment in money.

The administrator made one payment to John in 185J, and the remainder of what he insists was due on the 30th of July, 1859, but refused to pay interest from the death of the testator, from January, 1856, to February, 1858. He says, in his answer, that lie could not, consistently with his duties to the creditors, make these payments earlier. The main question, in the case, is, whether these legacies were entitled to bear interest from the death of the testator.

The cause was set down for hearing on bill and answer and exhibit, and sent to this Court.

*3
      *H. A. GilUam,*for the plaintiffs.

Hines, for the defendant.

PeaRsoN, C. J.

Where the will fixes no time for the payment of legacies, they are payable forthwith, and unless the condition of the estate requires delay, it is the duty of an executor to assent to specific legacies, and to pay pecuniary legacies as soon as funds are in hand. “ The statute *allows*executors and administrators two years to settle estates, on the supposition that many estates are complicated, and cannot well be settled in less time ; this, however, was by no means intended to confer, on the residuary legatee, the right to have the fund put out at interest for his *benefit Turnage*v. Turnage, 7 Ire. Eq. 127. According to the principle established by that case, in the absence of any direction in the will, if a slave, for instance, is bequeathed, the executor should assent forthwith, or, if he should deem it prudent to withhold his assent and hires the slave, when he does assent, the legatee will be entitled to receive the amount of the hire. So, if anote, drawing interest, is bequeathed, and the executor retains it to see how the estate will turn out, the legatee is entitled to the interest as well as the note. Eor, the amount of the hire, or of the interest, certainly does not belong to the executor, nor has the residuary legatee any right to it; and where it appears that the delay, although prudent, was not necessary, the specific legatee is entitled to be put in the same condition as if it had not occurred ; under the maxim, “ equity considers that done which ought to have been done,” which is effected by considering the executor as having acted as a trustee for such legatee. ,

In our case, as there was no monejr on hand, the defendant was right, when he offered to pay the legacies in bonds, and the plaintiffs were mistaken in supposing that they were entitled to have the amount of their legacies in money ; but still, as the bonds were drawing interest, the defendant was bound, when he afterwards paid the money, to account for the interest which he had received $ because the accumulation could *4not enure to his benefit, nor to that of the residuary legatees.

There will be a decree for the plaintiffs, but without costs, as their refusal to accept the bonds, was the original cause of the litigation.

Per Curiam, Decree accordingly.