(5) Exclusion of Legatees.

This direction has been extended to legatees. Davis v. Topp, Appendix (7). Gibson v. Stiles, Ib. Ellison v. Airey, Appendix (4). Loder v. Hallett, Appendix (5); and Decree for Administration of Assets. Equity Draftsman, 658.

But this is incorrect. In Anon. 9 Price, 210. the Lord Chief Baron observed upon this practice in the Exchequer, and directed that it might be corrected in future. He observed, that the reason why creditors are excluded, unless they should come in within a limited time, is because they could not be known to the Court, or ascertained, unless they should appear, and parties interested were not to be delayed by the laches of creditors; but that did not apply to legatees, who were entitled to have a proportional part of the fund set apart for the satisfaction of their legacies.

And see Decree in Creditors' Suit, No. I. Note (4), ante.

Contribution.

A direction for contribution is sometimes added. Davies v. Topp, Appendix (7). But see Contribution, No. 1. Note (5), ante.

APPENDIX (1).

Direction for Delivery of Specific Legacies.

And it is further ordered, that the specific parts of the testatrix's personal estate, remaining in the hands of the defendant, be delivered by the defendant to the plaintiffs. Nieman v. Cartony, L. C. 24th of April, 1771. Reg. Lib. B. 1770, fol. 275.; S. C. (Newman v. Cartony) 3 Bro. 346. note.

APPENDIX (2).

Direction for Delivery of Specific Legacies.

And it is further ordered, that the specific legacies be delivered or retained, according to the said testator's will. Davis v. Bayly, 8th Feb. 1748. Reg. Lib. A. 1747. fol. 266. S. C. 1 Ves. 84.

[It appeared by the answer of the executrix, that the testator in his lifetime had by parol directed her to give his gold watch, and articles of jewellery to different persons, and at the same time gave the defendant other trinkets.]

APPENDIX (3).

Direction as to Interest on Legacies.

It is further ordered, that the said Master do take an account of his (the testator's) legacies, and compute interest thereon at the rate

F

of 47. per cent. per annum, from the time the same respectively carry interest. Fenoulhet v. Passavant, L. C. 11th March, 1754. Reg. Lib. A. 1753. fol. 524. S. C. 1 Dick. 253.

APPENDIX (4).

Direction as to Interest on Legacies.

And the said Master is also to take an account of the said testator's debts, &c. and legacies, and compute interest on such of the said debts and legacies as carry interest, from the time such interest ought to commence. And all the creditors and legatees of the said testator are to be at liberty to come before the said Master and prove their debts, and make out their demands respectively, and for that purpose the said Master is to cause an advertisement to be published in the London Gazette, and therein appoint a peremptory day, and such of the said creditors and legatees as shall not come before the Master and prove their debts and make out their demands within that time, are to be excluded the be nefit of this decree. Ellison v. Airey, L. C. 13th July, 1748. Reg. Lib. A. 1747. fol. 699. S. C. 1 Ves. 111.

APPENDIX (5).

Direction as to Interest on Legacies.

And that it be referred to Mr. K. one &c. to take an account of the said testator's debts, funeral expenses, and pecuniary legacies, and to compute interest on such of his debts as in their nature carry interest, as also to compute interest on his said legacies, at the rate of 41. per cent. per annum, from the time the same ought to have been paid, according to the said testator's will. And the said Master is to cause an advertisement to be published in the London Gazette for the said testator's creditors and pecuniary legatees to come before him and prove their respective debts, and claim their respective legacies within a time to be therein limited, or in default thereof, they will be excluded the benefit of this decree. Loder v. Hallet, L. C. 3d April, 1742. Reg. Lib. B. 1741. fol. 305.

APPENDIX (6).

Direction for securing Annuities.

And any of the legatees and annuitants mentioned in the said testator's will are to be at liberty to come before the said Master to claim their legacies or annuities; and as to any annuities thereby

given which are a charge on the said testator's personal estate only, the said Master is to see a sufficient part of the said testator's personal estate set apart and appropriated to answer such annuities during the continuance thereof. Trodd v. Downes, L. C. 18th May, 1742. Reg. Lib. B. 1741. fol. 406. S. C. 2 Atk. 304. cited 2 Ves. jun. 568.

APPENDIX (7).

Direction for Contribution by Legatees.

And for the purposes aforesaid, the said Master is to cause an advertisement to be published, &c. for the creditors and legatees, &c., and such of them as shall not come in, &c. are to be excluded, &c., but such creditors, not parties, &c. and legatees are in the first place to contribute, &c. Davies v. Topp, M. R. 25th Feb. 1780. Reg. Lib. A. 1779. fol. 228.

S. C. 1 Bro. 525.

So in Gibson v. Stiles, L. C. 18th July, 1741. Reg. Lib. A. 1740. fol. 550.

No. V.

DECREE ON FURTHER DIRECTIONS IN SUIT BY LEGATEES.

[The residue was given to charitable uses.]

[Inter alia] His Honour doth order that it be referred to the said Master to compute subsequent interest on the legacies, except, &c. And to tax the plaintiffs and the defendants Henchman &c. to whom costs are given by the said decree, their subsequent costs. And it is further ordered, that what is reported due for the legacies given to such of the parties and legatees as are not mentioned in the said report to be under age, or femês covert, and the interest thereof, be paid to them respectively, out of the cash in the bank in this cause, and that what shall be reported due to them for subsequent interest on their said legacies, be also paid to them out of the said cash in the bank in this cause. And the plaintiff Dorothy Bowden's legacy and interest is to be paid to her, or to such person as she shall appoint, for her separate use, out of the said cash in the bank. But before the actual payment of the legacy and interest given to the plaintiff Decima late

Warnell, now wife of John Yorke, in regard, she is now resident at Wotton Bassett, Wilts, C. B. Clerk, L. L., Esq. and T. B. Gent, all of &c. or any two of them, are desired to attend her and examine her, separate and apart from her husband, &c. [See Decrees respecting Femês Covert, post.] But in case the said plaintiff shall not consent that her said legacy and interest shall be paid to her husband, then he is to lay proposals before the said Master, &c. [See Decrees respecting Femês Covert, post.] And it is further ordered that the said defendant Humphry Henchman, be at liberty to retain his subsequent costs, and do pay the said other parties their subsequent costs, when taxed, out of the balance remaining in his hands of the said testatrix's estate, if the same shall be sufficient for that purpose, and do pay the residue of such balance (if any) into the bank, with the privity of the Accountant-General of this court, to be placed to the credit of this cause. But if such balance shall not be sufficient to pay the said subsequent costs, then the said parties are to be at liberty to apply to this court to have such deficiency made good out of the said cash in the bank in this cause. And it is further ordered that the interest, already reported due on the legacies given to Elizabeth and Mary Bowden, the infants, and also the subsequent interest be paid to the plaintiff John Bowden their father, who hath maintained them out of the cash in the bank in this cause. And it is further ordered, that the capital of their said legacies be placed out &c. [See Decrees respecting Infants, post.] and the interest of such securities is from time to time to be

paid to their said father for their maintenance, so long as he shall continue to maintain them. And the said infants are to be at liberty to apply to this court to have the said securities transferred or assigned to them when they shall respectively become entitled to the payment of their legacies. And it is further ordered, that the sum of 5001. the interest whereof is given to Anne Knipe for her life, be laid out &c. in the name and with the privity of the Accountant-General of this court, who is to declare the trusts thereof, subject to the further

order of this court, and the interest thereof is from time to time to be paid to the said Anne Knipe during her life, and on her death, the parties interested therein are to be at liberty to apply to this court touching the same. And his Honour doth declare that the defendant Ettricke the infant is, as heir at law to the said testatrix, entitled to the surplus of the money arising by sale of her real estate. And it is further ordered that what shall be coming to the said defendant on account thereof, be for his benefit laid out, &c. in the name, and with the privity of the said Accountant-General, who is to declare the trust thereof accordingly, subject to the further order of this court. And the said defendant is to be at liberty to apply to this court for the same when he shall attain his age of twenty-one years. And the said Accountant-General is to draw &c. [See Usual Directions, No. XIII. ante.] And any of the parties are to be at liberty to apply, &c. [See Usual Directions, No. XIX. ante.] Bowden v. Henchman, M. R. 1st December, 1747. Reg. Lib. A. 1747. fol. 87,

NOTE.

Where the Master had found a legacy to be due to the representatives of the legatee, and the legacy was directed to be carried to the account of the personal representatives of the legatee, subject to the further order of the Court, and the fund was not to be sold or transferred without notice to the plaintiff, who was entitled to the residue, the legatee, who was one of the executors of the testator, having, in fact, forfeited the legacy by not proving the will, the Court, on the petition of the plaintiff, ordered the fund to be paid to him without. directing a re-hearing. Banksdale v. Abbott, 3 Russ. 186.

No. VI.

DIRECTION FOR ABATEMENT.

And in case his (the testator's) personal estate shall not be sufficient for the payment of his legacies, then the legatees are to abate in proportion to be settled by the said Master. Barnard v. Bevan, M. R. 1st July, 1748. Reg. Lib. A. 1747. fol. 591.

For minutes of decree for setting a value on annuities, and for abatement of legacies. See 2 Newl. Pract. 348.