Dewey, J.
The legacy given by the will of Archibald Nelson to Rice Nelson, did not discharge the notes held by the testator against Rice Nelson. There is nothing in the case to authorize such an assumption, nor any legal principle which would require us to give the will that effect. Such is the proper construction of the will, irrespective of any evidence of the parol declaration of the testator, to which we give no effect.
The only real question of difficulty in the present case is, whether the fact of the existence of such liabilities, on the part of Rice Nelson, to the estate of his late father, can avail the defendant, in this process against him as trustee of the goods, effects and credits of Rice Nelson. The apparent equity of the case is entirely with the defendant. The testator made the defendant his residuary devisee, giving him all his real and personal estate, subject to the payment of his debts and legacies, and constituted him sole executor *572of his last will and testament. The effect of this disposition of the estate is, to give 'to the defendant a direct pecuniary interest in the debt due from Rice Nelson. The defendant has ail the assets, and is bound to pay all the debts and legacies. As executor, there could have been no difficulty in making the set-off. If sued, as executor, for the legacy, by Rice Nelson, he might, as executpr, institute a suit upon the notes, and one judgment would be properly set off against the other. The cases of Procter v. Newhall, 17 Mass. 93, and Hancock v. Hubbard, 19 Pick. 167, do not deny the right of set-off, if a suit is brought against an administrator, by the heir of an intestate, for his distributive share. On the contrary, they sanction that doctrine, and only hold that, in making the decree of distribution, the judge of probate cannot make any deduction from the share of any of the heirs, on account of any debt due by them to the estate of the intestate. For reasons which do not appear, the defendant declined acting as executor, and an administrator, ivith the will annexed, was appointed, who, by force of such appointment, became the legal representative of the testator; and all actions to enforce payment of debts due to the estate must be sued in his name.
The case on the part of the plaintiff shows the legacy to Rice Nelson, and sufficient evidence of an acceptance thereof; and the devise to the defendant on condition of his paying the debts and legacies of the testator, and an acceptance by the defendant of the legacy upon this condition; all which facts being shown, Rice Nelson could have maintained an action against the present defendant, to enforce the payment of the legacy to him. Swasey v. Little, 7 Pick. 296. The further point to be settled is, whether the benefit of a set-off, such as would have been allowed if the defendant had accepted the trust of executor, and was now acting in that capacity, is lost by reason of the appointment of another person as administrator with the will annexed. A technical difficulty would undoubtedly arise in applying the statute of set-off, in a case like the present, if this had been an action *573at common law, by the legatee against the defendant, as residuary devisee, charged with the payment of the legacy. But the court have recognized the principle of sustaining a defence to an action, by allowing demands to operate by way either of set-off or of payment, although existing in the form of demands on the part of the defendant against another person than the plaintiff, where it was necessary so to do, to prevent fraud or manifest injustice. The cases of Stockbridge v. Damon, 5 Pick. 223, and Sargent v. Southgate, 5 Pick. 312, are of this character. The cases, that have arisen against persons sought to be charged as trustees, are, however, more in point, and very fully sanction the principle of allowing to the party “every legal and every equitable set-off in his own right, or in the right of those with whom he is privy.” Hathaway v. Russell, 16 Mass. 473. Allen v. Hall, 5 Met. 266. Whenever you seek to charge a party as trustee, by reason of credits, and not as the holder of specific articles of personal property, you open to him a broad equity; and the balance only, after all equitable allowances, is the sum for which he is to be charged as trustee. Applying the principle of these decisions to the case at bar, they will fully justify us in discharging the trustee, as having no credits of the debtor in his hands, that could be properly attached or held under this process. The notes of the debtor, although payable to the testator, and in form to be collected in the name of his legal representative, are-really the property of the defendant, and he alone has any pecuniary interest in them. If collected by the administrator, it would be for the use of the defendant. We think that the defendant, under the circumstances of the present case, ought not to be charged as the trustee of Rice Nelso
Defendant discharged.