The action stood continued for advisement until this term ; and now the Court expressed their opinion that the testimony given at the trial, of the oral declarations of the testator, ought not to have been admitted; it went to set up a will by parole, instead of the written will of the testator himself.
In case of a copy of a will filed and administration granted in this state under the statute of 1785, c. 12, the administrator may be held to pay debts due to creditors here, if any such are claimed of him; but legatees, who claim only from the bounty of[*429] the testator, mus* resort to the country of the testator, where the will was originally proved, and by the laws of which his effects are to be distributed, to obtain the bounty they claim.
For both these reasons the verdict must be set aside, and a new trial granted; and upon such new trial the defendants are to be permitted to set off any legal claims they can establish as creditors to the estate of the deceased, (a)
[Vide Dawes vs. Head, 3 Pick. 128. — Harvey vs. Richards, 1 Mass. Rep. 407, and the remarks of Mr. Justice Story upon the case of Richards vs. Dutch.—Ed.]