Lead Opinion
Although the bill prays for the specific performance of a contract relating to personal property, for breach of which there is ordinarily an adequate remedy at law, the court is of opinion that, as the property in question was contracted to a trustee in aid and enforcement of the provisions of a trust mortgage, a court of equity has jurisdiction of the subject matter of the bill. The stock in question was to be transferred upon request; but no request was made upon the intestate during her lifetime. As against a solvent estate, we think this would not render the bill demurrable; and as we construe the bill, no specific allegation of insolvency appears.
Demurrer overruled. *Page 191
The case then came on for hearing on bill, answer, and proofs.
Addendum
It appears from the proof in this case that there are debts outstanding against the estate of the intestate beyond the amount of the assets that have come to the hands of the administrator. The defendant as administrator is as much bound to distribute the estate of the intestate among her creditors as the complainant is under the mortgage. The complainant might at any time during a period of ten years in the lifetime of the intestate have required a transfer of the stock to him, but he did not see fit to do so. At her death it went to her administrator by operation of law, and we do not see that the complainant has any claim in equity superior to that of the defendant to receive and distribute its proceeds among her creditors. The case of CityFire Insurance Co. v. Olmsted,
Bill dismissed.