The opinion of the court was delivered by
Isham, J.The judgment in this case was rendered on two promissory notes, payable to Elisha Rix as administrator of the' estate of George S. Lee. Elisha Rix has deceased, and the plaintiff is the administrator de bonis non of the estate of George S. Lee, and the administrator also, of the estate of Elisha Rix; and as administrator of Elisha Rix, has prosecuted these notes, and recovered this judgment; thus treating them as assets, and. as the property of that estate. The notes are merged in the judgment, and the defendant is now indebted upon that matter, only to the estate of Elisha Rix.
The defendant has a claim against the estate of Elisha Rix, which was allowed to him by the commissioners on that estate, and which is perfected as a judgment, by being allowed and recorded in the probate court. Claims of that character are treated as judgments, except they cannot be enforced by the final process of execution. These judgments are therefore mutual in their character, and if they were judgments in the same court, the set off of one judgment against the other woujd be a matter of legal duty, as well as of equitable right. Comp. Stat. 283 § 12. The judgments, not being in the same court, an offset cannot be directed under the provisions of the statute. It is, therefore, to the equitable power of this court, which it exercises independently of the statute, that this application is made. The power to direct such an offset, and the duty ' of the court so to do, as a general rule, has not been questioned. It is fully sustained and enforced by the case of Conable v. Bucklin, 2 Aik. 221.
As these judgments are mutual, and as an offset would be a matter of right, if they were judgments in the same court, it would seem to be a duty equally as imperative and equitable, to exercise that power on this application, that it would be if they were judgments in the same court; for surely, the equity is the same, when *390tlie judgments are in different courts, that it is when they are in the same court. In making an offset of these judgments, the defendant has only secured to him a right, the exercise of which is prevented, for the want of an opportunity to plead the judgment in offset, and of which the plaintiff may deprive the defendant by enforcing payment of his judgment by execution, unless a power of this kind is exercised. In cases of that character, it has been observed, “that the power of setting off judgments, not only of “the same, but of different courts, does not depend upon the “ statute of offsets, but upon the general jurisdiction of the court “ over its suitors, and that it is an equitable jurisdiction, and frequently exercised.” Simpson v. Hart, 1 Johns. Ch. 91. Montague on set off, 7. Baker v. Braham, 2 Black. R. 869.
It is insisted, that this application should not be allowed, as it may unjustly effect the estate of George S. Lee, and divert therefrom the amount of these notes, which were given, and should be held as assets of that estate. It would seem, from the face of the notes, that their consideration proceeded from the estate of George S. Lee, and they undoubtedly would be evidence of that fact, as between the estate of George S. Lee and Elisha Rix as administrator on his estate. It is upon this consideration alone, that Elisha Rix in his life time could have sustained an action on these notes as administrator. This he might have done, and for the same reason, the plaintiff, as the administrator de lonis non on the estate of George S. Lee, might have prosecuted these notes, “for where “ the cause of action is such, that the first administrator may sue “ in Ms representative capacity, the right of action devolves upon “ the administrator de lonis non of the intestate.” This seems to be the doctrine as settled by later authorities, though the rule, formerly, was held otherwise. Catherwood v. Chabald, 1 Barn. & Cress. 150. Partidge v. Court, 5 Price 412. But while these notes could have been prosecuted by Elisha Rix as administrator, in Ms life time, and by the plaintiff as administrator de lonis non on the estate of George S. Lee, it was nevertheless competent for Elisha Rix during his life, to consider himself the debtor of that estate for the amount of the notes, and to hold the notes as his own. That liability was imposed upon Mm, and which he assumed when he parted with the property, or money of the estate of George S. Lee^ and took these notes. From that time, he was the debtor *391to the estate of George S. Lee, to the amount of those notes. In consequence of that indebtedness, he might have held the notes as his own. He could have indorsed them, and thereby have transferred the legal and equitable interest in them to his indorsee, free from any equity, which the estate of George S. Lee might have in the notes. He could have prosecuted them in his own name, and right, and recovered the amount for his own use. These principles are in conformity with the early decisions on this subject, and they are recognized as existing principles by late authorities. In the case from the 1 Barn. & Cress. 150, Abbott, Ch. J., observed : “ that there may be cases, where the administrator of an “ administrator might and ought to sue, viz, if the first administra- “ tor had made himself debtor to the intestate’s estate, for the amount “ of a bill, received in payment of a debt due to that estate — and Best, J., observed, “ that this observation may serve to reconcile “ the various cases which have been referred to.” If Elisha Rix, during his life, had commenced a suit on these notes in his own name and right, he would not have been a mere nominal party on the record, nor would he have been prosecuting the notes as trustee, having the estate of George S. Lee, as cestui que trust; but he would have stood as the holder and owner of the notes, having, in consequence of his indebtedness to the estate of George S. Lee, for their amount, the legal, equitable and beneficial interest in them; and the estate of George S. Lee, for the payment of their claim, must look to the estate of Elisha Rix and his administration bond. If Elisha Rix could have sustained an action on these notes in his own name and right, the plaintiff as his administrator, can prosecute them in the same right, for he succeeds to all the rights which the intestate had. In the commencement of this suit by the plaintiff as administrator of Elisha Rix, and in its prosecution to final judgment, he has treated this claim as assets, and as the property of the estate of Elisha Rix, and subjected the same to every legal and equitable offset, which the defendant has against him or his estate. Under these circumstances, it is not for this plaintiff, as administrator de bonis non on the estate of George S. Lee, to object, nor for this court to refer the offset of one judgment against the other, where they are rendered mutual in their character, by the act of the parties, to the same extent as if they were judgments in the same court.
*392It becomes unnecessary to say anything in relation to the admissibility of the parol testimony offered and admitted by the court; for if the testimony is admissible, the equity, in the offset of these judgments, is apparent. If the testimony is held inadmissible, in the view we have taken of the case, it will not alter the result.
The judgment of the County Coux't, allowing the offset, must be affirmed.