10. The assent of the executor 'to a spe cific legacy is requisite to vest the title in the legatee. 1 Waeh. Va. 308; 1 Bail. So. C. 504; 1 Harr. &J. Md. 138; 2 Ired. Eq. No. C. 34; 12 Ala. iv. s. 532; 4 Fla. 144; 11 Humphr. Tenn. 559; 2 Md. Ch. Dec. 162. This will often be presumed where the. legatee was in possession of the thing at the decease of the testator, and the' executor acquiesces in his right. See 4 Dev. No. C. 267 ; 3 Leigh, Va, 682; 6 Pick. Mass. 126; 6 Call. Va. 55: Abatement. The general pecuniary lega cies are subject to abatement whenever the assets are insufficient to answer the debts and specific .legacies. The abatement must be upon all pro rata, 4 Brown, Ch. 349, 850 ; 13 Sim. Ch. 440 ; but a general pecnniary legatee is not bound to abate in favor of the residuary legatee. 1 Story, Eq. Jur. 555 575 ; Brightly, Eq. Jur. 387, 388, 389. Spe cific legatees must abate, pro rata, when all the assets are exhausted except specific de vises, and prove insufficient to pay debts. 2 Vern. Ch. 756. In New York, "they must contribute to make up the shire of a child born after -the execution of the _vrill, and - not provided for in it. .5 Paige, Ch. N. Y.
588.. , , 11. 4demption qf legacies.' A specific leg-, acy is revoked by the sale or change of form of the thing bequeathed: as, by converting, a ,gold chain into a cup,'.or vrool into cloth, or cloth into garments, .2 Brown, Ch. 108, 112; but the .change of the form of a security' is not an ademption. 23 N. H. 212. A de-' monstrative. legacy is not adeemed by the, sale or change of the fund. 5 Barb. N.Y..; 312 ; 10 Beav. Rolls, 547; 15 Jur. 982; •16; id, 1130: A legacy to a child is regarded .1)1 courts of equity as a portion for such child : hence, *hen the testator, aftersiving such a' legacy; settles the child and gives'a portion,. it is regarded as an ademption of the legacy;... And, it will make no• differenceAhat thepor 'tion given in settlement is less than the leg-• aoy: .it will still itdeem the legacy pro tanto. 2 Vern. Ch. 257 ;. 15 Beav., Rolls .565 ; 1 P. Will. 681 ; 5 Mylne & C. 29; 2' Story, Eq.. Jur. 1111-1113..
Payment. A legacy given generally, if no. time of payment be named, is due at the death of the testator, although not ,payable' until the executor has time to settle .the. estate in due course of law.
12. An annuity given by will shall eom-. mence at the death of the testator, and the: first payment fall due one year thereafter. 3 Medd. Ch. 167. A distinction is taken be tween an. annuity and- a legaey to enjoy the interest during lip.. .In th.e latter case, no'. interest. begins to accumulate until. the end: of one year from the death of the testator. 7. Ves. Ch. 9.6; 2 Roper, Leg. 1253.(i But this paint. is left. in Some'doubt in the American. cases. The following; hold that' 'a child's. portion„ payable at a certain age, draws terest from the death of the testator, Tilyk-. man, C. J., 5 Binney, 477, 479 ;- 4 Rawle, Penn...113,119 ; but this rule. does not apply'. when any other provision is made for the. cihild. .6 Paige, Ch. N. Y. 299.
13. Wherelegatees are under disabilities,,. as , infancy or Cciverture, the executor cannot discharge1iimself by payment; except to some: party, having a legal right to receive the same, cin th.e part of the le.gatee, which in the ease.
of an infant is the Iegally-appointed guard ian, and in the ease of a married woman. the husband ; but in the latter case the ex-. ethitor may .decline to pay the, legacy until, the husband make a suitable pp:Avalon csit of .it for , the wife, according to the .order the court of chancery. See, on the alien+, points, l'P. Will. 285; 1 Johns. Ch. N. Y. 3; 9_,Vt. 41; _I Drewr. 71, .The. proper. course in such cases is for the executor to deposit the money on interest, subject to the order of the court Of chancery. 2 Williams, Exec. 4th Am. ed. 1206-1220. The executor is lia ble for interest upon legacies, whenever he has realized it, and in general he is liable for interest after the legacy is due. 2 Wil liams, Exec. 1283 et seq. But he may excuse himself by paying the money into the court of chancery. 2 P. Will. 67. So, toe, if the testator is compelled to pay the money out of his own funds on account of the devastavit of a co-executor, and the matter has lain along for many years on account of the infancy of the lecratees no ihterest was allowed under the special circumstances until the filing of the bill. 9 Vt. 41.
The proper remedy for the recovery of a legacy is in equity. 5 Term, 690.
13. Satisfaction of debt by legacy. In courts of equity, if a legacy equal or exceed the debt, it is presumed to have been in tended to go in satisfaction, Prec. in Chane. 240; 3 P. Will. 353; 4 Madd. 325 ; but if the legacy be less than the debt, it shall net be deemed satisfaction pro tanto. 2 Salk. 508; 1 Ves. Sen. Ch. 263; 2 Hou. L. Cas. 153. But courts allow very slight circumstances to rebut this presumption of payment: as, where the debt was not contracted until after the making of the will, 2 P. Will. Ch. 343 ; where the debt is unliquidated, and the amount due not known, 1 P. Will. 299 ; where the debt was due upon a bill or note negotiable, 3 Ves. Ch. 561; where the legacy is made payable after the debt falls due, 3 Atk. Ch. 96 ; where the legacy appears from the will to have been given diverso intuitu, 2 Ves. Sen. Ch. 635 ; where there is express direction in the will for the payment of all debts and legacies, or the legacy is expressed to be for some other reason, 1 P. Will. 410 ; see, also, 3 Atk. Ch. 65, 68; 2 Story, Eq. Jur.
1110-1113 ; Brightly, Eq. Jur. fi 382, 391 ; 2 Dev. & R. Eq. No. C. 66 ; 3 Wash. C. C. 48 ; 6 Penn. St. 18. The American cases do not favor the rule that a legacy is prima' facie payment,: 12 Wend. N. Y. 67 ; 2 Hill, N. Y. 576; 2 Gill & Md. 185; and its soundness was early questioned in England. 1 P. Will. 410. ' Release of debt by a legacy. If one leave a legacy to his debtor, it'is not to be regarded as a release of the debt unless that appears to have been the intention of the testator. 4 Brown, Ch. 227 ; 15 Sim. Ch. 554.
Where one appoints his debtor his execu tor, it is at law regarded as a release of the debt, Coke, Litt. 264 ; 8 Coke, 136 a ; but this is now controlled by st`atute in England and in many of the United States. But in equity it is considered that the executor is still liable to account for the amount of his own debt. 11 Ves. Ch. 90, nn. 1, 2, 3 ; 13 id. 262, 264.
Where one appoints his creditor executer. and he has assets, it operates to discharge the debt, but not otherwise. 2 Williams, Exec. 4th Am. ed. 1118-1123. See, gene rally, Toiler, Williams, on Executors, Roper en Legacies, Jarman on Wills.