But where the whole of the fund is divisible among the creditors, costs will be given as between solicitor and client. Otherwise where there is a surplus, in which other parties are intererested. By. the Master of the Rolls, Anon. 28th June, 1828. MS.

Whether in a suit by a simple creditor the plaintiff is not entitled to costs, although the fund is insufficient for payment of the specialty creditors, Q.

See Contribution, No. I. Note (5), ante. Costs of proving Debt, No. I. Note (3), ante.

(2) Subsequent Interest.

Interest subsequent to the report is only calculated on debts previously carrying interest. Creuze v. Hunter, 2 Ves. jun. 165. S. C. 4 Bro. 316. and cases there cited.

It was formerly held, that interest, when computed by the Master, became principal, and would carry interest. See Bacon v. Clerk. 1 P. W. 480. But now no interest is given on interest reported due, except in the case of a mortgage. Turner v. Turner, 1 J. & W. 47. Perkins v. Baynton, 1 Bro. 574. And see Brown v. Barkham,

1 P. W. 653. Butler v. Duncomb, 1 P. W. 453. Astley v. Powis, 1 Ves. 496.

The not allowing interest to simple contract creditors is often attended with great hardship, operating as an inducement to the residuary legatees, where the funds are bearing interest, to protract the proceedings for their own benefit. See Explanatory paper sub

joined to the Chancery Report, 99.

The following proposition upon this subject is among those subjoined to the Chancery Report.

Proposition 133. That in all cases it shall be in the discretion of the Court, having regard to the circumstances of the assets, to allow or disallow interest from the date of the report to creditors, whose debts do not in their nature carry interest.

(3) Mode of Payment.

For the mode by which creditors obtain payment of the sums reported due to them. See Lechmere v. Brazier, 1 Russ. 75. and Usual Directions, No. XIII. ante.

The plaintiff's solicitor is bound to attend the Accountant-General and the Registrar with the order and report, upon payment of the usual fee. Lechmere v. Brazier, 1 Russ. 78. And see Shortley v. Selby, 5 Mad. 447.

(4) That where the creditor is dead a prerogative administration is necessary. See Usual Directions, No. XIII. ante.

Where it appears by the pleadings that the creditor is an infant, the Accountant General will not pay him, though he has attained twenty-one, upon the certificate of his baptism; but an order must be obtained from the Court. Anon. 2 Mad. Chan. 582.

No. III.

DIRECTION FOR SALE OF PERSONAL ESTATE SPECIFICALLY BEQUEATHED, AND FOR APPORTIONMENT ON DEFICIENCY OF ASSETS.

It is ordered, that the said Master do take an account of the testator's personal estate, specifically bequeathed; and it is ordered that the same be sold by the said defendant, in such manner as the Master shall direct. And it is ordered, that the money to arise by such sale, be paid into the Bank, with the privity, &c. [See Usual Directions, No. X. ante.] And it is ordered, that the said Master do apportion (1) the money to arise, &c. and the monies hereinbefore directed to be paid into the Bank, when paid in, among the creditors of the testatrix, named in the first schedule to his report, according to the sums reported due to them; and he is to make a separate report of the matters aforesaid; and out of the monies to arise, &c. and the monies herein before directed to be paid into the Bank, when paid in, it is ordered, that the several sums to be apportioned to such creditors, be paid to them respectively, or to the legal personal representatives of such of them as may be dead. And for the purposes aforesaid, the Accountant-General is to draw &c. [See Usual Directions, No. XIII. ante.] Morgan v. Earl of Clarendon, M. R. 15th July, 1815. Reg. Lib. A. 1814. fol. 1574.

NOTE.

(1) Where any of the debts carry interest, an account of subsequent interest will be directed before apportionment. Nice v. Kirkby, M. R. 4th March, 1815. Reg. Lib. B. 1814. fol. 353.

No. IV.

DECREE IN SUIT BY LEGATEE.

This Court doth order and decree that it be referred to Mr. C., one &c., to take an account of the personal estate of (1) William Robert Mingay, the testator in the pleadings named, come to the hands of James Mingay, deceased, the sole executor of the said testator, William Robert Mingay, in the lifetime of him the said James Mingay, and to the hands of the defendants, the executors of the said James Mingay, since his death, or any or either of them, or to the hands of any other person or persons, &c. And it is ordered, that what on the said account shall appear to have come to the hands of the defendants be answered by them personally; and what on the said account shall appear to have come to the hands of the said James Mingay in his life, be answered by the defendants, his executors, out of his assets, in a course of administration. But in case the defendants shall not admit assets &c. [See Decrees respecting Executors and Trustees, post.] And it is ordered, that the said Master do take an account of the debts (2), funeral expenses, and legacies (3) of the said testator, William Robert Mingay, and compute interest on such of his debts as carry interest, after the rate, &c. And upon his legacies (4), from the time and after the rate directed by the said testator's will, and where no time of payment or rate of interest is thereby directed, then after the rate of 4 per cent. per annum, from the end of one year after the said testator's death. And it is ordered, that the said Master do cause an advertisement to be published in the London Gazette, &c. for the creditors of the said testator to come in before him and prove their debts; and he is to fix a peremptory day (5) &c. And such of them as shall not come in by the time so to be limited are to be excluded &c. [See Decree in Creditor's Suit, No. I. ante.] And it is ordered, that the said testator's personal estate be applied in payment of his debts and funeral expenses in a course of ad

ministration, and then in payment of his legacies. And for the better taking of the said accounts &c. [See Usual Directions, No. II. ante.] And it is ordered, that all parties be paid their costs of this suit, to be taxed by the said Master out of the said testator's estate. And this Court doth reserve the consideration of all further directions until after &c. [See Usual Directions, No. XV. ante.] And any of the parties are to be at liberty to apply, &c. [See Usual Directions, No. XIX. ante.] Mingay v. Corrall, V. C. 10th June, 1815. Reg. Lib. B. 1814. fol. 1093.

NOTES.

(1) Personal Estate specifically bequeathed.

The account is usually confined to the personal estate not specifically bequeathed. See Decree in Creditor's Suit, No. I. ante.

In Geary v. Beaumont, 3 Mer. 433. The Master of the Rolls said, that where no debts are due from the testator, the Court has nothing to do with the specific legacies, and must confine its administration to the effects not specifically bequeathed; and on that ground held, that a specific bequest to an executor could not be applied in satisfaction of a devastavit committed by him. But the Court will order specific legacies to be delivered to the legatees. Nieman v. Cartony, Appendix (1). Davis v. Bayly, Appendix (2). Lord v. Calton, Decrees respecting Real Assets, No. IX. post. And see Decree for Administration of Assets, Equity Draftsman, 660.

Where the personal estate consisted chiefly of debts due to the testator, the produce of which was bequeathed to the plaintiffs, and had been received in part by the executrix, and an account had been directed of the personal estate "not specifically bequeathed," on a motion to rectify the minutes, the latter words were omitted. Barnes v. Foster, V. C., 5th of March, 1825, MS. See Decree in Creditor's Suit, No. I. Note (6), ante. And Decrees respecting Real Assets, post.

(2) Account of Debts.

Formerly, creditors were not allowed to come in under a decree in a suit by a residuary legatee. See Sims v. Ridge, 3 Mer. 464. But now the Court will not interfere in favour of legatees until the debts are paid, and the fund is clear. See Exp. Salter, 2 Dick, 771. Warter v. 13 Ves. 94.

(3) Account of Legacies.

It is said by Lord Redesdale, 137, that in a suit by a single legatee for his own legacy, unless the personal representative of the testator, by admitting assets for the payment of the legacy, warrants an immediate personal decree against himself, by which he alone will be bound, the Court will direct a general account of all the legacies of the same testator, and payment of the legacy claimed rateably only with the other legacies, no preference being allowed amongst legatees in the administration of assets. Otherwise as to creditors. See Decree in Creditor's Suit, No. I. ante. But such bills are now out of use. See Mr. Bell's Evidence,

Chancery Report, Appendix (A), p. 390.

For mode of claiming legacy. See 1 Turn. Pract. 195.

(4) Interest on Legacies.

In Crickett v. Dolby, 3 Ves. 13. the above direction for the computation of interest is stated by the Master of the Rolls to have been the form universally. But this does not appear to have been invariably the case. Fenhoulhet v. Passavant, Appendix (3). Ellison v. Airey, Appendix (4). Loder v. Hallett, Appendix (5).

For the rules as to the time from which interest on legacies is to commence, and the exceptions to them. See 2 Roper on Legacies,

172.

Decrees in Ireland do not contain any direction for computing interest on legacies, but the direction to take an account of legacies is understood to include an account of interest. See Birmingham

v. Kirkman, 2 Sch. and Lef. 447.

Annuities.

An annuity given by will is payable from the death of the testator. Gibson v. Bott, 7 Ves. 96, 7. Fearns v. Young, 9 Ves. 553.

Unless a contrary intention appears. Houghton v. Franklin, 1 S. & S. 390. Storer v. Prestage, 3 Mad. 167.

Whether it is payable from the death, where it is given out of a residue, Q. See Storer v. Prestage, supra.

See Tenant for Life of Residue, No. IX. Note, post.

Directions will be given for securing annuities. Trodd v. Downes, Appendix (6). And see Decrees respecting Real Assets, No. VIII. post.