33 Conn. 476 | Conn. | 1866
We have no doubt of the general equity of the petitioners’ case as against Lucius D. Olmsted, if he was still living, or as against his heirs now that he is dead; but the main fact relied upon in the petition as the ground of equitable relief, as distinguished from the relief which all the creditors of his estate are entitled to, namely, the insolvency of his estate, and which is fully found by the court, must deprive the petitioners of the specific relief sought for in this bill. It can not be claimed that the petitioners have any lien upon this stock. The deceased was indebted to them, and for the better securing of that indebtednsss he agreed to transfer to them, on or before the maturity of certain notes, the subject of that indebtedness in part, the stock in question. But this was never done, and he subsequently died deeply insolvent, and the petitioners now seek the specific execution of this contract on the part of his administratrix, who of course represents all the other creditors of the estate.
This is the whole case. As the legal title to the stock was in Olmsted up to the time of his death, any creditor of his might have attached it; Dutton v. Connecticut Bank, 13 Conn., 498 ; or if he had been forced into bankruptcy, or had assigned it for the benefit of his creditors, his assignee would have held it. Swift v. Thompson, 9 Conn., 63 ; Shipman v. Ætna Insurance Company, 29 id., 245. Indeed the last case is a direct authority in favor of the respondent on every point involved in this, unless some distinction favorable to the petitioners can be drawn from the circumstance that the assignee in that case represented the creditors of a living bankrupt, while in the case at bar the administratrix represents the creditors of an insolvent estate. But there is obviously no ground for any such distinction. Had this stock been attached before Olmsted’s death the lien would have been dissolved for the benefit of all his creditors, though valid against the petitioners had he lived. On his death all the creditors stand upon the same footing, and equality is equity.
We advise the superior court to dismiss the petitioners’ bill'.
In this opinion 'the other judges concurred.
