majority">Barrows, J.

To secure a just and legal settlement of all that pertains to the property, liabilities and affairs of persons deceased, the business is confided to a court of special jurisdiction acting under statute provisions at once comprehensive and minute, most' *418of them of long standing and approved practical worth, and seldom invaded by the rage for legislation which is so apt in avoiding one evil to create a score of new ones.

Under this system the property of the deceased goes into the hands of persons who give bond for the faithful performance of their duties, and thus become the representatives, not only of the deceased, but to a certain extent of all those who have any interest in or claims upon his property, however arising, and whether growing out of the acts or contracts of the deceased, or his relations to surviving kindred, friends or objects of his bounty.

A cardinal principle of this system is to secure, as far as may be, a just and equitable distribution of the property among those who have claims on it, giving priority to general creditors over donees, heirs or legatees, and to certain classes of creditors, holding preferred claims, over the general creditors.

But in order that the person charged with this distribution under the direction of the probate court may be enabled to make it, it is necessary that he should have the aid as occasion may require of the courts of common law and of equity to obtain possession of all which ought rightfully to be the subject of the distribution. And in doing this it follows from the fact that he is the representative of all who have an interest in the distribution, that he is entitled to any remedy which any of those whom he represents might have against those who are wrongfully in possession of the fund, Or any portion of it. Hence as the representative of creditors he may have remedies both at law and in equity which would not have been available to the deceased. Caswell v. Caswell, 28 Maine, 232. Martin v. Root, 17 Mass., 222. Holland v. Cruft, 20 Pick., 321. Fletcher v.Holmes, 40 Maine, 364.

"While the decedent, had he lived, would have no right to reclaim a gift of money on the ground that it was needed for the payment of existing indebtment, his creditors could pursue it in his life time in the hands of the donee; and so may his administrator upon proof that without it the property of the donor when he made the gift was insufficient to pay what he then owed.

When such proof is forthcoming the law will imply a promise, •on the part of the donee of the money, to do what the law re*419quires, in an action for money had and received, brought by the administrator, as it will imply such promise even against the protestation of the defendant in other cases where money is wrongfully withheld. Howe v. Clancey, 53 Maine, 130. The question as to the maintenance of the action by the administrator against the donee in case of insolvency of the estate was fully and ably argued and carefully considered by the court with the aid of an elaborate dissenting opinion when this case was first presented, 61 Maine, 277, the main subject of discussion being whether the remedy was not confined to actions by individual prior creditors against the donee, or if any process could be maintained by the administrator whether it should not be in equity.

We think that the symmetry of the law is best preserved, that a multiplicity of suits, and a failure of all remedy for what in many cases might be a grievous wrong may be best avoided, by the decision then reached upon this point, and we adhere to it accordingly.

A donee cannot complain that in place of being subjected to as many suits as there were creditors wronged by his acceptance of the gift, he is required to take his place among other parties having claims upon the estate, protected by the bond of the administrator, and entitled to receive from his hands his just due in the distribution which takes place under the direction of the probate court.

That is the proper forum where the amount to which the donee is entitled shall be finally determined.

The act of the donor has given him a claim upon the money, subject only to the superior claims of those who, according to legal principles and statute provisions regulating probate proceedings, have a better right. That is all which the donor could do, and it is not for the donee to withhold the possession of the fund from the administrator, when without it the demands of those to whom the donor was indebted at the time of the transaction cannot be fully paid. The gift is void as to all that class of creditors, and must be so declared at the suit of the administrator who represents them. Abbott v. Tenney, 18 N. H., 109.

To ascertain whether the money ought to be placed in the hands *420of the administrator, because a part or the whole of it is required for the payment of those having claims superior to those of the donee, is the primary and chief object of a suit of this description.

How much of it is wanted, and how much the donee shall ultimately be entitled-to receive, if anything, are questions which will ordinarily belong to that jurisdiction which was created for the express purpose of adjusting and closing up all the transactions of the deceased. This view of the case will be found to dispose of most of the questions raised at the trial.

When an estate is settled in probate court as an insolvent estate, the claims of all creditors are made to depend upon their pursuing the statute mode of presentation and proof. They can maintain no action against the administrator, except in conformity with those provisions, even though the estate should ultimately prove solvent. McNally v. Kerswell, 37 Maine, 550. Bates v. Ward, 49 Maine, 87.

It is obvious that in cases of insolvency, any remedy which the individual creditor should undertake to pursue against the fraudulent donee would be liable to be greatly retarded, and perhaps ultimately defeated by force of these provisions as to the mode in which he shall proceed against the estate of his deceased debtor. The aim of the law seems to be to produce an equitable pro rata distribution of all that remains of the dead man’s property or effects, and this cannot be done by leaving assets situated like these to be made available only at the option of prior creditors and their individual disposition to litigate. There are doubtless numerous precedents for holding fraudulent donees to answer to the suits of individual creditors, as administrators in their own wrong. But ■ those who are thus liable are by statute made liable to the suit of the legal administrator, it. S., c. 64, § 37.

And it is in this way alone that the fund can be made available for all who are interested in it, in equal- and just proportions, by a single suit.

The defendant complains that the record of the proceedings in insolvency was admitted to show that the money which she holds was needed for the payment of debts of the deceased, and that *421unless impeached for fraud it was held conclusive as to the matters therein appearing.

We think it was proper evidence, and in a case of this sort indispensable evidence to establish the condition of the estate. To undertake to do it by proof of the various debts would be introducing too many subordinate issues to be properly canvassed in a single trial to the jury.

That it is legitimate evidence may be considered as settled. Bates v. Avery, 59 Maine, 354.

It is also well settled that the decrees of the probate court touching matters within its jurisdiction when not appealed from are conclusive upon all persons. Simpson v. Norton, 45 Maine, 281. Loring v. Steineman, 1 Metc., 204. Merriam v. Sewall, 8 Gray, 316. Potter v. Webb, 2 Maine, 257.

Nor does it make any difference that these proceedings were had in the present case subsequently to the commencement of the suit.

If they are had so as to be put in evidence in the form of conclusive adjudications at the trial it is in season. To postpone the commencement of the suit until their completion might not unfrequently make the remedy worthless.

The defendant’s counsel complains that she was not allowed to go into an inquiry as to each of these creditors’ demands, and to put the plaintiff to the proof of them in this suit, after they had been allowed against the estate by the commissioners of insolvency, and that she ought not to be concluded by the adjudication of the probate court upon those matters. We think there is no valid reason why she should not be so concluded in the absence of fraud, and the ruling allowed her to show fraud, if there had been any.

Shaw, C. J., remarks in Loring, adm'r, v. Steineman, 1 Metc., p. 208, as follows : “But in many cases, courts of peculiar jurisdiction have jurisdiction of the subject matter absolutely, and persons are concerned incidentally only according to their respective rights and interestsand he instances a question of prize, where a court of admiralty, “by adjudicating upon that question settles it definitively in regard to all persons interested in that question whether they have notice or not.” He adds “and we think the distribution of an intestate estate is analogous.” Under our statute *422provisions relative to the establishment of claims against an insolvent estate in the probate court, we think a similar doctrine must prevail with regard to the results reached. In the absence of fraud they stand as conclusive upon all persons whose rights may be affected thereby. Hence the legislature have provided carefully for the right of all whose interests are liable to be affected, to appeal and secure further investigation.

Not only is the general right of appeal from decrees of probate courts conferred upon all whose interests in property are acted upon, but a special right to appeal from the findings of commissioners of insolvency was given by c. 113, § 10, Laws of 1870, and K. S., c. 66, § 11, to heirs-at-law and all creditors, the spirit of which plainly includes donees, whose claims are subject to reduction by reason of existing insolvency, and legatees under a will.

But independently of all this, there is good reason in principle and authority for holding the .proceedings of a court of this peculiar jurisdiction binding upon the rights of those whose .interests they may incidentally affect, nor does this in any manner infringe any constitutional right to trial by jury. Defendant’s counsel misinterprets the ruling as to the admissibility of evidence to impeach the report of the commissioners of insolvency, and to disprove the fact of insolvency. It was not confined to misconduct of the administrator in suffering the allpwance of wrongful claims, or withholding assets. "When the defendant proposed to put in evidence to show that the claims allowed by the commissioners were not due, it was excluded “unless it was claimed that the allowance of the claims was procured by fraud.” But any expectation of showing that the allowance was procui’ed by fraud was disavowed.

The door was opened quite wide enough so far as the ruling went; for mere evidence tending to defeat the claim, unless it conclusively showed it to be unfounded and unjust within the knowledge of the claimant or the tribunal, would be no cause to impeach the adjudication as fraudulent or void. If the doctrine of Caswell v. Caswell, 28 Maine, 232, upon this matter of impeaching the adjudication of the commissioners of insolvency, can be supported, it must be limited to cases where, as there, the illegality of the claim appears upon its face. It was not necessary to the *423decision, for the case was disposed of when the court determined that, while an administrator of an insolvent estate might in certain cases be entitled to the aid of the court sitting in equity to obtain property conveyed by the intestate to defraud his creditors, in order that it might be appropriated to the payment of debts, such process could not be maintained by one of the creditors who had proved his claim against the estate.

The defendant further objects that supposing the proceedings in insolvency admissible and importing absolute verity, they are insufficient to make it appear that Woodman was insolvent when he made this gift and therefore insufficient to establish the right of the plaintiff to have the gift returned as assets of the estate for the payment of debts and charges of administration. It is easy to suppose cases where this would be so. But the evidence introduced here shows the date of the gift very near the time of Woodman’s decease, and during his last illness, and that the bulk of the debts which he owed, (to an amount considerably exceeding all that he possessed including this money) originated prior to this transaction. In the absence of any evidence tending to show that he gained or lost or transacted any considerable amount of business after this, we think there is enough to authorize the jury to find, as the instructions required, that the estate was insolvent by reason of debts existing at the time when the gift was made. The jury could not have failed to understand that it was the solvency of the donor at that point of time which was in question, and that it was incumbent upon the plaintiff to prove that he was insolvent then.

It should be understood that it is not the representation of insolvency and the decree of the judge of probate for the appointment, of commissioners which is regarded as conclusive evidence of the fact of insolve ncy. The evidence would be imperfect without the report of the commissioners, and the accompanying documents and the decree thereon, together with the other proceedings establishing the amount of the assets. In eases where a longer time had elapsed between the gift and the decease of the donor, of course other evidence would be necessary to make out what the plaintiff is bound to prove in order to entitle him to a verdict. But these *424proceedings in insolvency in the probate court are the proper , foundation and are conclusive, as to the facts therein set forth unless impeached (as all judgments are liable to be) for fraud. Nor is it of any importance that some'portion of the debts thus proved before the commissioners of insolvency accrued after the date of the gift.

The proof shows and the jury found that, unlike the case of Usher v. Hazeltine, cited for the defendant, Woodman was in debt beyond his means of payment when he gave this money to the defendant. The proper distribution is to be made, as we have seen by the probate court, and with the data before them, it is not perceived that there will be any difficulty in arriving at a just apportionment.

Under existing statutes the defendant could not be a witness as to what occurred before the death of Woodman, unless the administrator offered his own testimony in relation to it. It. S., c. 82, § 87. Nor as to such matters does chapter 145, Laws of 1873, aid the defendant. The suit was pending when the statute was passed. Nor was the witness prevented from stating any thing which occurred since the death of Woodman that was material. Nor was she questioned by plaintiff’s counsel as to what occurred before Woodman’s death.

The defendant further complains that there was an inconsistency in the finding of the jury that Woodman agreed beforehand with the defendant that if she would take care of him while he lived he would give her the $700 and that she performed her part of the agreement, and the further finding that he gave her the $700 in part in consideration of friendship and affection and not wholly for her services, and that this inconsistency was brought about by erroneous instructions upon this point.

We think the instruction taken as a whole so far as it relates to the effect of friendship and affection upon the validity of the contract was correct.

If the making over of the $700 to the defendant by Woodman was partly a gift; or to use the language of the instruction, “if Woodman in and by that transaction made, not such a contract as he would make as a business transaction simply, but was influenc*425ed to it in part by friendship and regard for the defendant it would invalidate it.”

The mingling of any intention or design in the contract which the law regards as fraudulent will vitiate it. Brinley v. Spring, 7 Maine, 241. Welcome v. Batchelder, 23 Maine, 85. Holland v. Cruft, 20 Pick., 321. Martin v. Root, 17 Mass., 222. It is true that in the cases just cited there was more or less testimony indicative of positive fraudulent purpose and design. But the contract is just as much invalidated as to all those against whom it would operate as a fraud in law, as though there had been actual fraudulent intent on the part of the donor ; while in the absence of such fraudulent purpose participated in by the donee the same results would not follow in respect to the rights of heirs that are suggested in Martin v. Root; but the right of the donee, innocent of all fraudulent design, would be protected in the probate court to such distributive portion, if any, as she might be entitled to by virtue of the donor’s good will evinced by the act of gift. This right was recognized in the instructions given. We do not perceive that the substantial rights of the defendant were infringed at the trial save in one particular. She had rendered services in pursuance of the agreement she made with Woodman in connection with the reception of the gift which the jury have found were worth six dollars a week from the last of August to Dec. 25, when he died. They were rendered during his last illness and in the expectation of payment. They constituted a preferred claim against his estate which the administrator would be obliged to pay in full before proceeding to pay the general indebtment. Such claims need not be laid before the commissioners. Flitner v. Hanley, 18 Maine, 270. S. C., 19 Maine, 261.

Circuity of action should be avoided.

Her liability here is strongly akin to that of an administrator in his own wrong and he would have a right to retain whatever sums received by him which, if withdrawn from his hands, the rightful administrator would be compelled to pay. Tobey v. Miller, 54 Maine, 480.

The plaintiff must remit $102 and interest thereon from the *426date of the writ, February 16, 1869, to the date of the verdict at the April term, 1874, as of the latter date, and thereupon the entry will be Motion and exceptions overruled.

Appleton, C. J., Walton, Dickerson, Danforth and Peters, JJ., concurred.

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