The third clause of the will of Mary S. Rounds is as follows : “All moneys or legacies coming to me from any source, I give and bequeath to my brother and sister, including my stepson, Walter B. Rounds, to be divided equally, to share and share alike.” And the first question raised is whether or not said clause creates a specific legacy. We do not think it does. A specific legacy, as the term imports, is a gift of bequest of some definite specific thing, something which is capable of being designated and identified. 1 Roper on Legacies, 190; Case of Walker’s Estate, 3 Rawle, 229, 237; Bradford v. Haynes, 20 Me. 105; 2 Wærner’s Law of Administration, § 444 and *437cases- cited. Had the bequest been of ‘c all moneys or legacies coming to me from my father;’’ of “all legacies coming to me under the Dean will,” of “ all the furniture belonging to me, in my house at A.,” see Derby, Executor, v. Derby, 4 R. I. 414, 432, it would doubtless have been a specific legacy. Gelbach v. Shively et als., 67 Md. 498; Gardner v. Printup, 2 Barb. S. C. 83, 85; Tomlinson v. Bury, 145 Mass. 346.
But there is certainly nothing which strikes one as particularly specific in the phrase, “all moneys or legacies coming to me.from any source.” At any rate it is not clear from the language used that the testator intended to create a specific legacy. And the rule is that a legacy should not be construed as specific, unless clearly so intended. Wallace v. Wallace, 23 N. H. 149, 153, and cases cited; Briggs v. Hosford, 22 Pick. 289.
This being so, the defendant, Thomas M. Rounds, as administrator with the will annexed on his wife’s estate, is entitled to have and receive from the defendant Zechariah Chafee, trustee under the will of Calvin Dean, all moneys or legacies in his hands which belonged to the testator and which would have come to her in her lifetime had she survived Julia Ann Maker, the life tenant, under the will of Calvin M. Dean. Chafee v. Maker, 17 R. I. 739, 741.
The question which arises in this connection, then, is as to the amount which said administrator ■ is entitled to receive from said trustee.
We are still of the opinion, as expressed in Chafee v. Maker, that said trustee is entitled to retain out of the legacy of $3,-000 bequeathed to said Mary S. (Dean) Rounds, under the will of said Calvin Dean, the amount of the note of said Thomas M. Rounds and Mary S. Rounds, for $1,500, and the amount of the note of said Thomas M. Rounds, indorsed by said Mary, for $117.50, which notes are now held by said Chafee as part of the trust estate under the will of said Dean. The proof submitted shows that said Chafee, under an arrangement with said Mary, became the purchaser at the foreclosure sale under the' mortgage given by said Thomas M. Rounds, of the Kingston farm, as a voluntary purchaser, for *438tlie ultímate benefit of the trust estate, and in no other way or manner ; that said Ohafee paid for said farm the sum of $1,545, and took a deed thereof ; that he thereupon, at the request of said Mary, deeded the same premises to her, and that said Thomas and Mary thereupon mortgaged said premises to said Ohafee, trustee, to secure the payment of their promissory note for the sum of $1,500, payable one year after date with interest at six per cent, per annum ; that the said note for $117.50 is the tail end of a note of $1,000, which latter sum said Mary borrowed from said trust estate before her marriage to said Thomas M. Rounds, said note being-signed by her husband solely for her accommodation and to enable her to adjust her accounts with said Ohafee at the time of the purchase by her of said farm, and that said note for $1,500 was given for the sole purpose of enabling the said Mary to become the purchaser, in her own right, of said farm, and as a part of the purchase price to be paid therefor. In brief, the proof shows that the transaction was substantially this : Thomas M. Rounds owned a farm which was subject to a mortgage in the sum of $2,000, given by him. He was unable to pay the amount due on the same, or even the interest thereon, and the result was a foreclosure sale by the mortgagee. At this sale said Ohafee, under an arrangement with said Mary that she should have the. same, became the purchaser of said farm, using a part of the trust funds in his hands, which would ultimately come to her, in the making of said purchase ; that said farm was then deeded to said Mary by Ohafee, in pursuance of said previous arrangement with him ; that she well knew at that timé of the legacy of $3,000 which was coming to her under said Dean’s will, on the death of Julia Ann Maker and that to enable her to give á mortgage back for the purchase price of said farm it was necessary for her husband to join therein; and to sign the mortgage note, which he did, but for her sole benefit and accommodation. Of course, he thereby became personally liable to pay said mortgage note, and so remains, the same not having been paid. That is, as between him and said trustee he assumed the legal liability of paying for property *439which became, and was, the absolute estate of his wife, not by way of advancement, but simply for her accommodation, while as between him and his wife he assumed the liability of paying her debt, which was one that arose out of a contract that the statute expressly authorized her to make, and made her and her legal representatives responsible for. See Pub. Stat. R. I. cap. 166, § 4. If, therefore, said mortgage note is paid by him, his wife’s estate will honestly and justly owe him the amount thereof. If he pays said other note for $111.60, he will thereby pay a debt which was legally hers when contracted, the original note having been given by her while sole, and which was equitably hers at the time of her decease, the original having been paid in part by her and taken up after her marriage, and a new one given, signed by her and her husband, for the balance due.
• The trustee has in hi's hands said legacy of $3,000, and interest thereon, which, not being a specific legacy, as herein-before determined, belongs, in the first instance, to the administrator with the will annexed, to be used, so far as necessary, in the payment of the debts of the testator. Now, why should not the amount of said notes be offset by the trustee against said legacy, in his settlement with the estate of Mrs. Rounds ? Suppose Mrs. Rounds had outlived Julia Ann Maker, the life tenant of said legacy. Could she have equitably claimed from said trustee the full amount of said legacy, notwithstanding she had practically received from him, by way of an advance thereon, the amount of said notes ? In other words, would the court have compelled him to pay said legacy in full and then resort to his security for the repayment of said $1,500, and to look to said Thomas for the payment of said note of $111.50 ? We think not. Eor in equity and good conscience the trustee would only have owed her the balance between the amount of said notes and the amount of said legacy. See Armour v. Kendall, 15 R. I. 193. Moreover, if the law allows husband and wife to treat each other as debtor and creditor, which they practically did in this case, the offset aforesaid should certainly be allowed. Does it ?
*440In Hodges v. Hodges, 9 R. I. 32, which, was a bill in equity for an accounting, the plaintiff having made advances for the improvement of his wife’s real estate and for the payment of taxes, insurance and interest thereon, and having also received moneys for sales and leases of her real estate, the cause was referred to a Master to take the account, and upon exceptions to his report- for not allowing compensation to the plaintiff for personal services and interest on the advances made by him, the court, while overruling the first exception, because the decree was not broad enough to authorize the Master to allow compensation for services, yet sustained the other exception, holding that on money lent and on money paid on account, or to the use or benefit, or at the request of another, interest was always allowed, and then added : “Under the law as thus stated, and we think correctly-stated, the plaintiff is entitled to interest on his advances, unless, by reason of the relation of husband and wife, the case is an exception to the ordinary rule. No authority has been cited to show that the rule is subject to any such exception, and if husband and wife choose, to treat each other as lender and borrower, we do not see why the contract of loan should not carry with it its usual incident of interest, the same with them as with other parties, assuming, of course, that there i s nothing in the transaction which would make it inequitable to require payment of interest.”
It also appearing in said case that the husband considered himself jointly liable with his wife for the payment of a debt secured by a mortgage on her property, the court, while-holding that the plaintiff should be charged with said debt in the account, yet suggested that provision might be made in the final decree, for its payment out of the wife’s property and for his protection, if equity so required. We do not overlook the fact that in the case referred to, the wife’s property was in the hands of a trustee appointed under the statute, but we do not see that this affected the question of the equitable rights of the husband and wife. In Steadman v. Wilbur, 7 R. I. 481, this court substantially held that the relation of débtor and creditor might properly subsist be*441tween husband and wife. That was a case where the wife having property of her own under the statute, loaned money to her husband on his promise to repay it, and he afterwards conveyed to her real estate, through a third person, by way of repayment of the loan; and it was held that the conveyance was good at law as against his creditors, if it was no more than a fair equivalent for the loan. See also Franklin Savings Bank v. Greene, 14 R. I. 1; Barrows, Keene, 15 R. I. 484, and cases cited; Elliott v. Gower, 12 R. I. 79; Livingston v. Livingston, 2 Johns. Ch. 537; 2 Bishop on the Law of Married Women, § 360, and cases cited in note 1. The cases of Angell v. McCullough, 12 R. I. 47, and Moulton v. Smith, 16 R. I. 126, cited by the plaintiffs’ counsel, do not, as we understand them, control the decision of the question now before us. The former was a bill in equity to establish a lien on the wife’s separate estate for the building of a house on her land, under a contract made with the wife alone, and neither authorized or approved by the husband. The question raised was whether the real estate of a married woman was under the statute chargeable in equity for her contracts, in the same manner and to the same extent, as her separate equitable estate would be; and the court held that it was not, the statute not empowering her to enter into contracts relating to her real estate except by deed jointly with her husband. And hence, to hold her liable in such a case, would have the effect of making contracts which are void at law valid as charges in equity. In the case at bar, as we have already seen, the contract out of which the debt of $1,500 arose was not only not void at law, but was expressly authorized by and made in strict accordance with the law.
Moulton v. Smith, was a bill in equity by the administrator of the husband to establish a lien upon his wife’s separate personal estate for her funeral expenses, for probate charges, physician’s bill, grave stones, etc.
The court allowed the plaintiff to recover, under Pub. Stat. R. I. cap. 189, § 1, for his wife’s ■ funeral expenses, together with the expense of administering the estate, but disallowed the charge for the physician’s bill as being a debt *442which the wife was unable to contract, and also as one which should be regarded as the personal debt of the husband. We fail to see that this case has any bearing upon the one now before us. It is as much the duty of a husband to furnish medical attendance for his wife in her illness, as it is to provide her with the ordinary necessaries of life. And it is matter of common knowledge that the wife is not responsible therefor. See Methodist Episcopal Church v. Jacques, 1 Johns. Ch. 456.
Whether, therefore, we treat the said notes as constituting an equitable debt against the estate of Mrs. Rounds in favor of the trustee directly or an equitable debt against said estate in favor of her husband, it makes no difference, so far as the result is concerned, for in either case it is a debt which said estate should pay and discharge before any distribution is made-amongst the legatees of the residuum, under her will, it being the statutory, not the equitable estate of -the testatrix that is holden therefor.
But the plaintiffs contend that even if these notes were the proper debts of Mrs. Rounds, yet, by her mortgage, she expressly charged them upon her said North Kingstown farm, and hence that the defendant, Walter B. Rounds, took said farm under her will, cum onere, and was not, and is not, entitled to have it exonerated by the legacy in question. In support of this position he cites, inter alia, Gould v. Winthrop, 5 R. I. 319. In that case it was held that the devisee of an estate mortgaged by the testator, whether mortgaged before or after the making of the will is entitled to have the land devised to him exonerated from the mortgage debt, out of the personal property of the testator not specifically given, as the primary fund for the payment of debts; unless, indeed, there be a clear intention indicated by the will, that the devisee should take cum onere. As in the case at bar, the mortgage' debt in question, as already determined, was the debt of the testatrix, and as there is nothing in her will to show an intention that the devisee of said farm should take it subject to said mortgage, we fail to see wherein the case cited sustains the plaintiffs’ claim. The giving of a mortgage on said *443farm to secure the payment of said debt, did not have the effect of making it a charge thereon, in the sense that the mortgage must first look to that for payment, but simply to insure payment from some source, when due.
January 3, 1894.From the conclusions to which we have thus arrived, it will be apparent that the principle of subrogation contended for by the plaintiffs, does not apply in this case. The offset to be made simply has the effect to pay the debts of the testatrix, and not therefore to diminish the net assets of the estate, or to deprive the residual legatees under the will, of anything belonging to them.
As to question six, in the issues of fact submitted to us, viz., “Has said Thomas M. Rounds paid any, and if any, what, debts and expenses of his .said wife’s estate, which he is entitled to retain, and repay the amount thereof to himself, out of said legacy, as alleged in his answer, ” we make no answer, preferring to leave this matter in the hands of the probate court, where it properly belongs in the first instance. Blake v. Butler, 10 R. I. 133, 137; Wood v. Hammond, 16 R. I. 98, 110.
We therefore decide that the amount due on said notes may be retained by said Ohafee, trustee, out of the $3,000, and interest thereon, payable to said Thomas M. Rounds, administrator as aforesaid.
After the foregoing decision was rendered, the complainants filed a petition to enjoin the respondent Thomas M. Rounds from further prosecuting the settlement of his account as administrator on the estate of Mary S. Rounds, which he had presented to the Municipal Court of the City of Providence since the filing of the complainants’ bill, and which was pending on appeal in the Common Pleas Division of the Supreme Court. The case was then reargued.