c executor OF the lady cross v lyndsey and COVILL SC Eq can ab asset  devastavit in the case of lyndsey and Covill it be admit that a administrator  or executor in some case though he commit a devastavit in law a executor or  administrator once become full responsible by actual receipt or possession of  apart of his testator or intestate property for the due administration thereof  can at law find his discharge in respect of the same as against a creditor  seek satisfaction out of the asset either on the score of inevitable accident  as destruction by fire or loss by a of the various mean which afford excuse to  ordinary agent and bailees in case of loss without any negligence on their  part cross v smith east may the relieve in equity holt v holt Charles can as a  administrator in London before the fire have lease of house c and a great  surplus of asset above and beyond what will pay debt and legacy pay all as  they be demand and after the fire come destroy the house which be the great  part of his asset and then a debt upon a bind start up and the administrator  be relieve against this Even have the system of insurance be establish at the  period in question as firm as it be at present which it be not it can scarce  have be maintain that the administrator be bind to be more provident than the  intestate himself and to insure the property which be previous unprotected by  that precaution though to allow a once exist insurance to expire will be a  grave laches still to make the equity of the decision unquestionable it seem  necessary to assume what do not distinct appear upon the report videlicet that  no payment be pay until a reasonable period have elapse after the testator  death so that the bind creditor in case of a legacy it be admit that it be not  due till demand and the executor or administrator shall pay interest but from  the time of the demand this must be understand with some qualification  interest on a legacy unless express give be allow for delay of payment only  Hearle v Greenbank atk therefore if the party have receive due notice of his  legacy be not beyond the sea and labour under no disability it seem  inequitable that he shall claim interest before a demand of his legacy as the  executor or administrator may be presume to have keep the necessary fund  unemployed anticipate the demand at the close of a year after the testator  death before which time no legacy without special direction be Payable salk in  note to smell v Dec and by the express direction of the stat pound car c S no  distribution can be make of a intestate effect but the stat Geo c S provide  that where by reason of the infancy or absence beyond the sea of any person  entitle to a legacy or residue of personal estate such legacy or residue can  be pay the executor or administrator instead of employ the legacy or residue  for his own private advantage or even for the increase of the general asset  shall pay the same after deduct the duty Chargeable thereon into the bank of  England with the privity of the accountant general of the court of chancery to  be place to the account of the person for who benefit the same shall be so pay  and such money when pay in shall be lie out without any formal requestfor that  purpose in the purchase of per cent consolidate annuity which with the  dividend accrue thereon shall be transfer to the person entitle thereto on  application to the court of chancery by petition or motion in a summary way  the executor however be not bind to pay such legacy into the bank before the  expiration of a year from the testator death it shall be observe also that  although the stat cite authorize the payment of money out of court on motion  the practice where a gross sum be seek to be pay out of court be to require a  petition et semble that if no demand be prove in the cause it will be from the  time of the bill exhibit freeman er p have due time before such payment to  give notice of his demand for in case where asset be from the time of their  devolution inadequate to discharge all demand precipitate payment of any  particular one will be evidence of fraud and although here that evidence may  be rebut it will yet be just contend that if a executor venture premature to  pay creditor upon simple contract who can not be compelled to refund Hodges v  Waddington Ventr he thereby voluntary take upon himself all responsibilityto  the extent at least of such payment both as to the sufficiency and security of  the asset for the discharge of debt of a high nature as to legatee pay out of  due course of administration the creditor if his remedy against the executor  fail may compel they to refund Noel v Robinson vern whether the executor or  administrator can on a subsequent discovery of the deficiency of asset compel  a legatee who he have voluntary pay to refund be former shake questioning see  the last cite case also Newman v Barton vern coppin v coppin p wms which  support the negative of the proposition while Edward v freeman p wms be a  authority for the affirmative in Johnson v Johnson Bos pull Lord Alvanley c I  point out the distinction now general acquiesce in that if the executor seek  relief in equity he may succeed but that he can maintain a action at law see  post c b p note when the debt be upon record no notice be necessary the  executor or administrator must take cognizance thereof at his peril Littleton  v Hibbins cro Elizabeth and a decree in equity be as bind in this respect as a  judgement at law Searle v lane vern whether fill a bill upon which no decree  have be obtain ought to stay payment of other debt of equal degree have be  question Searle v lane where above but Darston v earl of Oxford p wms note  have decide that it do not a similar rule obtain at commonlaw where commence a  action will not divest the executor of his right of give a preference between  claimant of equal degree Britton v Bathurst lev see however anon dyer a but  where a decree or a judgement have be obtain the executor will be protect in  payment of debt even of low degree if he have be guilty of no laches in omit  to plead debt of a high nature of which he have notice Davis v monkhouse  FitzGib corbet case Leon in brook v Jennings I Mod it be say by three judge  that debt upon simple contract may be pay before bind unless the executor have  timely notice give they of such bind and such notice must be by action the  four judge however Wyndham dubitaba and in equity at least notice by process  of court will hardly be esteem necessary if clear knowledge of the fact  through other mean be establish this must be understand with some  qualification interest on a legacy unless express give be allow for delay of  payment only Hearle v Greenbank atk therefore if the party have receive due  notice of his legacy be not beyond the sea and labour under no disability it  sems inequitable that he shall claim interest before a demand of his legacy as  the executor or administrator may be presume to have keep the necessary fund  unemployed anticipate the demad at the close of a year after the testator  death before which time no legacy without special direction be Payable salk in  note to smell v Dec and by the express direction of the stat car c S no  distrivution can be make of a intestate effect but the stat Geo c S provide  that where by reason of the infancy or absence beyond the sea of any person  entitle to a legacy or residue of personal estate such legacy or residue for  his own private advantage or even for the increase of the general asset shall  pay the same after deduct the duty Chargeable thereon into the bank of England  with the priity of the accountant general of the court of chancery to be place  to the account of the person for who benefit the same shall be so pay and such  money when pay in shall be lie out without any formal request for that purpose  in the purchase of per cent consolidate annuity which with the dividend accrue  thereon shall be transfer to the person entitle thereto on application to the  court of chancery by petition or motion in a summary way the executor however  be not bind to pay such legacy into the bank before the expiration of a year  from the testator death it shall be obsderved also that although the stat cite  authorize the payment of money out of court on motion the practice where a  gross sum be seek to be pay out of court be to require a petition freeman er p  where interest only be apply for that may be do on motion anon mad Lord  Shipbrook v Lord Hinchingbrook Ves Skinner v sweet and wife Cooper the same  rule be establish in the court of exchequer see the notice to that effect  price the necessity admit in the text of a previous demand to entitle a adult  legatee to interest be however a point upon which authority differ Slanings  case pop Jolliffe v crew Prec in Charles smell v Dec salk and c p post support  the opinion that where no particular time of payment be fix a demand must be  make before interest will begin to run but in Churchill v speak vern the  contrary be decide unless that case may be distinguish and take to have  proceed on the ground of influence possess by the executrix over the legatee  as to Gibson v Bott Ves and the numerous other case which state it to be the  invariable rule to compute interest from the end of a year from the death  except when the will direct any other time they do not touch the present  question as they necessary imply that a demand have be make in the most formal  manner by suit though legacy be not sueable at commonlaw yet a strong analogy  may be draw from the rule there that in a action against a executor upon a  bind for performance of his testator will encore priest be a good plea fringe  v lews Leon