There was error in sustaining the plaintiffs’ exception upon the first point. The paper-writing signed by the plaintiff and her husband is a valid waiver of any rights the plaintiff may have had to said property as resid-nary legatee. She had power to make the waiver; it recites ■a valuable consideration from the other legatees, and was made in their favor and to settle the construction to a doubtful clause in the will. This was doubtless to facilitate the ■speedy settlement of the estate, which wTas a consideration itself. This is a waiver, not either a bond or executory contract, and it is sufficient that by reasonable intendment it ■should appear that the present defendant was to be released from responsibility in that respect. From the terms of the waiver, the defendant was authorized to act upon.it in construing the will, and having done so, the plaintiff is now •estopped to claim contrary to the agreement.
We concur with his Honor in his ruling upon the second ■exception. It was laches in the defendant to have kept so large a fund belonging to the estate in bank needlessly, and as late as three years after testator’s death. Certainly nothing appears in evidence to rebut this presumption. It was the duty of the defendant to have settled the estate as rapidly as practicable. At any rate, the payment by the defendant of an indebtedness of the estate with his own *384funds, when at the time he had, and had so had for so-long a period a much larger fund belonging to the estate, which he.had left in a bank out of the State where it was not immediately accessible, and which, it is found as a fact by the Court below, there was no need of retaining in said bank,, was negligence, and plaintiff cannot be allowed the’ gratuitous payment made out of his own funds.
Modified.