French v. Westgate

47 A. 93 | N.H. | 1899

The trustee's power of sale was not left to his discretion, but was to be exercised whenever the cestuis que trust agreed that a sale should be made. It was a power coupled with a trust. I Per. Tr., s. 248. Equity has jurisdiction to cause such powers to be executed. I Sto. Eq. Jur., ss. 533, 1061; P. S., c. 205, s. 1. There is no action at law which would afford an adequate remedy (Kendall v. Kendall, 60 N.H. 527), and the legislature has not given probate courts jurisdiction in such matters. P.S., c. 198. The allegations of the bill state a case that is within equity jurisdiction. If the defendant Nutter has changed her mind and does not now agree to a sale, it does not follow that the plaintiff is not entitled to have the sale made. Nutter may be bound by the agreement which she entered into, or, if not, the circumstances may be such that the plaintiff is entitled to relief notwithstanding her opposition. Equity, having jurisdiction of this matter, can afford complete relief, including the assessment of the plaintiff's damages, if any, growing out of the trustee's neglect and the settlement of the trustee's account. Eastman v. Savings Bank, 58 N.H. 421. It is unnecessary to determine whether equity would take jurisdiction of the accounting if that alone were the object of the suit, or whether it would leave that matter to the statutory jurisdiction of the probate court. Lebanon Savings Bank v. Waterman, 65 N.H. 88.

Motion denied.

All concurred.