Upon the presentation by the respondents’ counsel, of a final decree in said case, subsequent to the decision heretofore rendered therein, the complainants’ counsel made an extended reargument of the entire case and filed an elaborate brief, reviewing all the pro*444ceedings connected therewith, and urging that the court had erred in said decision, and particularly in relation to the power of a married woman to bind herself by contract, and of the right of subrogation contended for by him, and ought therefore to reconsider or modify the same, so that it shall be in accord with the well settled law of the land and the previous decisions of this court. In connection with, and as a basis for, a part of his said reargument, he filed a petition foían injunction against the respondent Thomas M. Rounds, administrator, to restrain him from the further prosecution of the settlement of his account before the Common Pleas Division of this court, in which the case is how pending on appeal from the Municipal Court of the city of Providence, on the ground that the Supreme Court having first taken jurisdiction over the same on the bill before us, said account should he settled here, and not in the Municipal Court.
And first then,, as to the criticism of the complainants’ • counsel to the effect that the opinion referred to goes to the extent of deciding that the contracts of a married woman create' a legal obligation binding at law upon her and her legal representatives, or. enforceable at law against her or them, or against her general estate. In Chafee v. Maker, 17 R. I. 139, we held that the notes in. question were equitably the debt of Mrs. Eounds, and hence that the amount due thereon might be retained by Chafee, the complainant in that suit, out of the $3,000 legacy which was payable by him to said Thomas M. Eounds as administrator on her estate. In our former decision in this cause we intended to affirm the doctrine thus expressed, and we now reaffirm the same. We never have supposed, however, nor are we conscious of having decided, that a married woman is legally hound by her contracts, except as provided by statute. We have not said that an action at law could have been maintained against Mrs. Eounds by Ohafee for the recovery of the notes in question, for it is perfectly cle'ar that it could not. But we have said, and we think rightly, that said notes were equitably 'the debt of Mrs. Eounds, and payable out of her estate, for the reason that they were given for, and enured to, her sole *445and separate benefit and accommodation, the principal one having been given in part payment for the farm which was conveyed to her by said Ohafee, which note was secured by a mortgage on said farm given by her and her husband in the manner required by law, and the other by way of a renewal of the balance due on a note originally given' by her while sole and unmarried for the sum of $1,000, for money which she borrowed from the trust estate, which said renewal note was signed by her husband solely for her accommodation and to enable her to adjust her accounts with her trustee at the time of the purchase by her of said farm. In equity and good conscience, therefore, the trustee should be allowed to reimburse himself out of money in his hands belonging to the estate of Mrs. Rounds, for the money advanced to her to enable her to purchase said estate, which estate was by law absolutely secured to her sole and separate use, and also for the balance due on said note of $1,000, given before her marriage with said Thomas; and said trustee should only be called upon to turn over to the administrator, the balance that shall remain after so reimbursing himself. Eor can it be seriously contended that had Mrs. Rounds become entitled to said $3,000 legacy in her lifetime, she could have recovered the same from her said trustee without permitting him first to deduct .therefrom the amount which she equitably owed him on said notes? We think not. And if she could not, then certainly her administrator, who only succeeds to her rights in the premises, can only claim from, said trustee the balance due after deducting her said indebtedness. That the particular language which was used by the coiirt in said second decision relating to the power of a married woman to make contracts which should be binding upon her and her estate if taken by itself, might be misleading, is perhaps obvious. But when taken, as it should be, in connection, with the facts previously set forth therein, no greater force would ordinarily attach thereto than the nature of the case required. In any event, all that we intended to say was, that the notes in question were equitably the debt of Mrs. Rounds, and should be paid out of her estate in the manner aforesaid.
*446And secondly as to the question which the complainants again raise, namely, whether they are entitled to be subrogated under the mortgage referred to in said previous decisions, to the rights of said Ohafee. We stated in our former opinion that the principle of subrogation did not apply in this case, and we are still of' the same opinion. Subrogation applies where one party pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter. Sheldon on Subrogation, § 1, and cases cited in note on page 2. Where a mortgage debt, for instance, is paid by one who is entitled to pay it for his own protection, but is not under any legal liability to do so, he is subrogated by operation of law, to the rights of the mortgagee, the doctrine being founded upon the principle that one who thus pays the mortgage debt is equitably entitled to the mortgage security. As said in Keely v. Cassidy, 93 Pa. St. 319, “The general principle upon which subrogation rests is that whenever any one pays a debt for which he is liable as surety or guarantor, it is equitable that he should be substituted in place of the creditor. ” It is also stated in the same case that “the principle which governs in all cases of substitution is one of equity merely and is to be carried out in the exercise of an equitable discretion with a due regard to the legal and equitable rights of others. ” In National Bank v. Cushing, 53 Vt. 321, 326, the court say : ‘ ‘ It' is only in cases where the person paying the debt stands in the situation of a surety or is compelled to pay in order to protect his own interests, that a court of equity substitutes him in the place of the creditor as a matter of course, without any special agreement.” See also Cole v. Malcom, 66 N. Y. 363; Stevens v. King, 84 Me. 291. By the settlement with the administrator, which we allowed the trustee to make in Chafee v. Maker, supra, the estate of Mrs. Bounds simply paid a debt which she owed. It was not paid by the complainants or either of them, they were under no obligation to pay it, nor was it paid with their money. The assets of Mrs. Bounds’ estate were not diminished and no one was wronged by this proceeding, for the complainants were not *447entitled to her personal estate in gross, but only to the net amofint thereof, — that is, to what remained after the payment of her debts. But the complainants’ counsel urge that the doctrine of subrogation almost universally, if not strictly always and necessarily in a case of this character, — of legatees, — only arises where debts which the legacy moneys are taken to pay are legal debts of the testator; that the doctrine almost universally rests upon the fact that the moneys are .assets in the hands of the executor or administrator, which, so far as he is concerned, he has rightfully used and applied to pay the proper legal debts of the estate ; for if he wrongfully used them he and his bondsmen would he liable personally. And it is because he has so properly applied them in his administration of the estate, an application which, being thus legally and properly made, the legatee could not prevent, that a court of equity, applying this, its own peculiar and exclusive doctrine of subrogation, substitutes the legatee in the place of the creditor thus paid under, and gives him the benefit of, the creditor’s security. He therefore contends that so long as the money which Chafee, trustee, was allowed to retain out of the $3,000 legacy due to the estate of Mrs. Rounds, which money otherwise and rightfully belonged to the legatee under her will, was by way of set off as aforesaid, taken to pay the secured debt of the testatrix, her legatees have the right to be substituted in the, place of said Ohafee under the mortgage.
As to specific legacies the law doubtless is, that in marshalling the assets of an estate such legacies cannot he applied in exoneration of a devisee from an encumbrance to which the testator had subjected the devised estate; Johnson v. Child, 4 Hare, 87; 2 Jarman on Wills, *636-637 ; although the devisee is entitled to have his estate exonerated out of the general personalty, unless it is clear from the will that he was to take it cum onere. And such being the rule, if a specific legatee is deprived of his legacy by the payment of a debt secured by mortgage, he is entitled to he subrogated to the rights of the creditor against the land, to the extent of his legacy, or to the value of the personal estate so appro*448priated. And there are cases which hold that the exoneration of a devisee cannot be claimed even as against a pecuniary legatee, and that to the extent to which it is thus exonerated, such legatee is entitled to stand upon the devised estate, in the place of the mortgagee. Wythe v. Henniker, 2 Myl. & K. 635, 645; 2 Wœrner’s American Law of Administration, § 494; Sheldon on Subrogation, § 211. See also the dictum of Brayton, J., in Gould v. Winthrop, 5 R. I. 319, 323, and the dictum of the Master of the Rolls in Selby v. Selby, 4 Russ. 336, 341. But whether this latter doctrine is correct or not we are not now called upon to determine, for the reason that, as we construe the will of Mrs. Rounds, the personal estate bequeathed to the complainants included only what should remain after discharging her liabilities. In short, that the clause, ‘ ‘ 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,” included all the personal estate of the testatrix not otherwise disposed of, and is, therefore, a general residuary bequest; and hence the case falls clearly within the decision of Gould v. Winthrop, supra, which holds that such a bequest is chargeable with all the debts of the testator, and that it is only the rest and residue thereof which passes to the legatee. It is true there is no direction in the will to pay the debts of the testatrix, but every person who makes a will is presumed to know the law, and to make his will in reference to it. And his estate is equally bound without, as with, such a direction, and in the order required by law. ’ And as all the gifts in the will before us, excepting -the one in question, are clearly specific, it is fair to infer that the testatrix intended that this should be subject to the payment of her debts. That a bequest of this sort is residuary, see Walker’s. Estate, 3 Rawle, 229; Hinckley v. Primm, 41 Ill. App. 579; Decker v. Decker, 121 Ill. 341; Waite v. Combes, 5 DeG. & Sm. 676; Cadogan v. Palagi, L. R. 25 Ch. Div. 154. There are, therefore, no equities in the case which the complainants are entitled to urge.
And, finalty, as to said petition for an injunction. It sets *449forth, that the complainants .filed their hill in this case on the 13th day of July, 1892, in which they pray, amongst other things, that an account may be taken under the direction of this court of the personal estate, debts and expenses of said Mary S. Bounds as administered by said Thomas M. Bounds; that since .the filing of their said bill said Thomas has filed his. account as administrator in the Municipal Court of Providence, and that the settlement thereof is now pending on appeal in the Common Pleas Division of this court; and prays that said Thomas may be enjoined from the further prosecution of said account before the Common Pleas Division.
The ground of this petition as stated in the brief is that as this court has concurrent jurisdiction with the Municipal Court over the matter in question, and as it first obtained jurisdiction thereof, it must exclusively adjudicate the same. In Blake v. Butler, 10 R. I. 133, which is specially relied on in support of this contention, this court refused to entertain a bill for the settlement of the administrator’s account, saying that the Court of Probate which granted administration on the estate, was the appropriate tribunal to which the respondent was required to resort for that purpose. It is true that in that case, the account of the administrator was presented to the Probate Court for allowance, prior to the filing of the bill, while in the case at bar it was not presented until after the filing of the bill in this court. But letters of administration had been issued to the administrator in this case and bond had been given by him in the usual way to account to the Municipal Court in his said capacity, before the filing of this bill. So that, while the account which. we are now urged to pass upon had not been presented in the Munipal Court, yet the court had taken jurisdiction of the subject matter in question prior to the filing of the bill in this suit, and, under the authority of Blake v. Butler, supra, " the court which first takes jurisdiction of the subject, must exclusively adjudicate, and neither party can be compelled into another court for anything that may be adjudicated by the first.” We think the more appropriate place for the settlement of the accounts of an administrator in the first instance *450is in the Prohate Court from whence he obtained his authority to administer, and to which he expressly bound himself to account. But, as said in Wood v. Hammond, 16 R. I. 98, 110, “applying the rule invoked by the petitioners most strictly, we do not think it would exclude the court from using other courts as auxiliary to itself.”
James Tillinghast & Theodore F. Tillinghast, for complainants. Joseph C. Ely & Isaac H. Southwich, Jun., for respondents.The petition for injunction is denied, and the case will be allowed to stand to await the settlement of the administrator’s account in the Common Pleas Division of the court.