Conceding that, upon the facts appearing in the case, Carl, if alive, would be estopped to deny that the property attached in the original suit was partnership property, and that the estoppel extended to his heirs, we are nevertheless of *Page 620 the opinion that it did not bind his administrator. The fallacy in the plaintiff's contention to the contrary is in the assumption that in respect of an estoppel the administrator stands in his intestate's shoes. For some purposes this is so. Doubtless, as is said in Fletcher v. Grover,11 N.H. 368, 375, "neither the administrators nor the creditors of deceased persons are entitled to derive greater or other benefits from their contracts, or the equitable relations which they may have held while living with other persons, than the deceased would be entitled to if still living"; and, doubtless, it is also true, that the right of an administrator of a person who has conveyed his property in fraud of his creditors to recover it back is limited to that of his intestate when the estate is solvent. But when, as here, the estate is insolvent, his right is not so limited. "An administrator of an insolvent estate is emphatically the representative of the creditors." Parker, C. J., in Abbott v. Tenney,18 N.H. 109, 112. It is his duty to take possession of all the estate, to the exclusion of the heirs, and apply it to the payment of the debts. And if his intestate has made a fraudulent transfer or conveyance of any portion of his property, the administrator, as the representative of the creditors, may recover so much of it as may be required for their payment. Abbott v. Tenney, supra, 112, 113, 114; Cross v. Brown, 51 N.H. 486, 489,490.
We think the same principle is applicable to the estoppel set up by the plaintiff. Through his authorized agent, the intestate made a false and fraudulent representation that the goods in question were partnership property, when in fact, and as he well knew, they were his property alone. It is entirely clear that the representation did not bind his creditors. As to them, the property continued to stand liable for the payment of their claims, as if the representation had never been made. These claims the administrator was bound to pay if he might obtain the means of payment; and, the property being required for that purpose, his right to it thereupon ceased to be limited to those of the intestate, and he became entitled to its possession in virtue of the rights of the creditors, as their representative.
It follows that the paramount right to the property attached in the original suit, and for which the defendant is sought to be charged as receiptor, being in the administrator, the defence now interposed must be sustained. Scott v. Whittemore, 27 N.H. 309, 313, 321; Healey v. Hutchinson, 66 N.H. 316, 318.
Judgment for the defendant.
PIKE and PEASLEE, JJ., did not sit: the others concurred. *Page 621