Cowles and others against Whitman and another, 10 Conn. 121

Daggett, Ch. J. Among the errors assigned are two, which have been very properly abandoned by the counsel for the defendants below. First, that costs were taxed against them. Surely, such a question cannot be made in this Court; as it is entirely discretionary, according to the course of the court, to allow or disallow costs. Another ground of error alleged, is, that the court admitted the testimony of Nancy Whitman, one of the defendants. This testimony, it appears, was given voluntarily on her part, and against her interest.

This objection, like the other, is quite unfounded ; and as it has not been pressed, no further remark is necessary. Norden v. Williamson & al. 1 Taun. 378. But it is contended, that a bill will not lie for the specific execution of a contract relating to personal chattels merely, because there is adequate remedy at law; and for this position several cases are cited, and many more might be cited. As a general rule, it is true. As contracts for the delivery of corn, flour, stock in banks or in the funds, and the like, may be compensated by damages, courts of equity will leave the parties to their remedy at law.

Buxton v. Lister & al. 3 Atk. 383. 2 Swift's Dig. 17. There can be no difference between these five shares of bank stock and any other like number. The facts, however, on which the decree rests, present no such point.

They are in substance as follows: That it was mutually understood and agreed between the plaintiffs and Lemira, that five shares of the capital stock in the bank should be subscribed for, by them, in her name, and that if more stock should be distributed to her than she could pay for, all the shares beyond what she could pay for should be taken and paid for, by the plaintiffs, and should belong to them. Five shares were subscribed for by them, in her name, and their funds advanced therefor.

After these shares were thus taken, she declared her inability to pay for them, or any part thereof; and insisted, that they should take them and pay for them ; to which they assented. ^ 1 discern here no sale of this stock, nor any contract or agreement to transfer it. None of the cases cited, therefore, apply. On the contrary, I perceive a trust created, within the principles always applicable to this subject. Money is here paid, by these plaintiffs, for stock ; and this stock, by her direction, stands in her name. They are the owners in equity ; she is the owner at law.

They now seek an execution of this trust; and this, by all the rules relating to trusts, comes within the peculiar province of a court of equity. Fraud, accident and trust are said to be the peculium of a court of chancery. It is, however, again insisted, that it appears from the record, that the plaintiffs are and were indebted to the estate of Lemi-ra in a greater sum than the value of the stock; and, therefore, it would be inequitable to take this stock out of the hands of the administrator, until this debt shall have been paid. This objection is founded upon a misconception of the facts found by the court.

The court does not find any indebtedness at all. On the contrary, it says, “ It doth not appertain to this court to inquire into the condition of the accounts between ■the plaintiffs and Lemira, or her administrator ; there being no suggestion or proof that the plaintiffs are not responsible men.” This objection admits, that there are claims of Lemi-ra's administrator against the plaintiffs. What then ?

To the court of probate, where that estate is now in settlement, belongs the adjustment of all such claims ; and only by appeal therefrom is the superior court authorized to hold jurisdiction over them, as will be further shown in the consideration of the remaining error assigned. Besides, the decree proceeds on the ground, that this bank stock never did belong in equity to Le-mira, but at all times to the plaintiffs. Again, it is alleged, as a ground of error, that this decree takes these bank shares out of the hands of the administrator, and out of the jurisdiction of the court of probate. Be it so.

If the shares were never her property, but always belonged in equity to the plaintiffs, as is supposed above, the court of probate ought not to hold them for the payment of debts or for distribution among the heirs. What if a deed of a farm of land had been taken in her name, and paid for, by the plaintiffs ; could it have been successfully contended, that the heirs and administrator could not have been compelled to execute a -conveyance, because the property would thereby be taken from the heirs and creditors ? or because it was inventoried in the court of probate? Cases are cited from 7 Conn. Rep. 307. 8 Conn.

Rep. 278. and 9 Conn. Rep. 196. to prove, that the settlement of cases before the court of probate cannot be drawn, by bill in equity, into the superior court. I fully recognize the principles of those decisions, but do not perceive their bearing on this decree, except strongly to support it. They do sustain the decree against the objection that the claims of Lemirds administrator on these plaintiffs, could be taken into consideration, by the superior court; because they are cognizable by the court of probate, and must there be decided. This, as will be found, is the point in all those decisions.

But it is urged, that the question made in the superior court respecting the right to a transfer of these shares, should have been made before the court of probate. On what ground can this be urged? Can a court of probate order a transfer of property, by the heir or administrator ? Could it order a transfer of these shares ? If so, how could it enforce the order ? No such power is possessed by a court of probate ; nor is it believed, that it has ever been exercised. In the case of Beach v. Norton & al. 9 Conn.

Rep. 196. one of the cases cited by the plaintiffs in error, it is said, by the Judge who delivered the opinion of the court: “ I do not mean to lay down the position, that the aid of a court of chancery can never be properly sought in relation to an estate in settlement before the court of probate. Such aid may be wanted, perhaps, in certain cases ; and a judgment of a court of probate may thereby be affected.” Upon the whole, I consider this case free from difficulty. The decree must, therefore, be affirmed. The other Judges were of the same opinion. Decree affirmed.