The opinion
Appleton, C. J.
This is an action of assumpsit, brought by the administrator of the estate of William Woodman, to recover the sum of seven hundred dollars, given b}r said Woodman to the defendant a few days before his decease. The plaintiff offered to prove the insolvency of Woodman at the date of the gift, and that the estate was rendered insolvent and was so insolvent.
The presiding justice ruled upon the facts, offered to be proved that the action was not maintainable.
. The gift, as between the parties thereto and the heirs of the donor, was valid. So far as the rights of prior existing creditors are concerned it was fraudulent, or evidence from which the inference of fraud must be drawn.
The estate being insolvent, the creditors defrauded cannot institute suits against the donee for the recovery of the money given. The administrator must act for them. He is trustee. It is his duty to protect and enforce their rights. As to them the gift is void, and the money given should be in the hands of the administrator, as a part of the assets of the estate for the payment of its debts.
Assumpsit for money had and received is an equitable action. The gift being void, so far as the plaintiff acts for the creditors, he can recover on the money counts the amount in the defendant’s hands, to be appropriated with the other property of his intestate, for the payment of the creditors entitled thereto and the necessary expenses of administration. The balance, if any, will belong to the defendant. Though the gift may be void as to creditors, it is valid as against the heirs oí’ the giver. Abbott v. Tenney, 18 N. H. 110. It is for the administrator to show the amount required to pay the debts due from the estate to its several creditors, defrauded by his intestate, for that is all which he is - entitled to recover. The remainder, if any there be, belongs to the defendant.
The motion to dismiss cannot avail the defendant. It is not entitled in this suit. It will apply as well to any other cause on the docket as to this. It is not stated in the bill of exceptions that the oath was administered by the plaintiff’s attorney, and if it had *281 been, it is not readily perceived why lie was not as competent to administer it as any other magistrate. Exceptions sustained.
Kent, J., concurred; and Dickerson, Barrows, and Dan-forth, JJ., concurred in the result.