French v. Westgate

47 A. 93, 70 N.H. 229

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1899
• Status: Published

Opinion

Chase, J.

The trustee’s power of sale was not left to Ms 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. 1 Per. Tr., s. 248. Equity has jurisdiction to cause such powers to be executed. 1 Sto. Eq. Jur., ss. 533, 1061; P. S., c. 205, s. 1. There is no action at law winch 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. eqMty 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 wMch she entered mto, or, if not, the circumstances may be such that the plamtiff is entitled to relief notwithstanding her opposition. EqMty, having jurisdiction of tMs. matter, can afford complete relief, Mcludmg the assessment of the plaintiff’s damages, if any, growmg 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 eqmty 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.