Imágenes de páginas
PDF
EPUB

NEW YORK COMMERCIAL Co. v. FRANCIS, U. S. C. C. of App.. Second Circuit, 101 Fed. Rep. 16.

78. PENAL BOND-Sum Certain-Interest in Excess.Where, in a suit on a penal bond in a sum certain, given to secure notes to that amount, defendants paid part of the notes before trial, and at trial it appeared that the balance due, without!interest, exhausted the bond, it was error to render judgment for such bal. ance, with interest, as damages for non payment, since the penalty could not be enlarged. -PEOPLE'S SAV. BANK V. CAMPAU, Mich., 82 N. W. Rep. 803.

79. PHYSICIANS-Certificates.--The law governing the practice of medicine in this State, and authorizing the State board of health to issue certificates to physicians and surgeons, is a police measure. It was not intended, by that act, to protect medical schools or med. ical practitioners from competition in business.-LINCOLN MEDICAL COLLEGE OF COTNER UNIVERSITY V. POYNTER, Neb., 82 N. W. Rep. 855.

Preference.

80. PLEDGE-Assignment for Creditors -An insolvent debtor may prefer one creditor to another by a pledge, where the transaction does not amount to an assignment for the benefit of creditors. -HARING V. HAMILTON, Wis., 82 N. W. Rep. 698.

81. QUIETING TITLE-Bill to Obtain Possession of Land.-A bill by the grantee of the purchaser of land at a mortgage sale, making a defendant of one who had not been a party to the foreclosure suit, but who was in possession of part of the premises, claiming title thereto by gift from the mortgagor, and adverse possession, praying that defendant's title be declared not valid and that complainant be put in possession, was, as to such defendant, a bill to quiet title and obtain possession of land without an ejectment suit, and hence would not lie under article 6, § 27, of the constitution, guarantying trial by jury.-CHANDLER GRAHAM, Mich., 62 N. W. Rep. 814.

V.

82. RAILROAD COMPANIES-Negligence-Fires.-In an action against a railroad company for damages from fire alleged to have been set by sparks from defend. ant's locomotive, the burden is on the plaintiff to prove, not only that the fire was caused by sparks from defendant's engine, but that the emission of such sparks was due to defendant's negligence.-GARRETT V. SOUTHERN RY. CO., U. s. C. C. of App., Sixth Circuit, 101 Fed. Rep. 102.

83. RAILROAD COMPANY-Negligence-Presumptions. -Proof that property has been destroyed by sparks emitted by a passing locomotive creates a presumption of negligence on the part of the railroad company or its employees, either in the construction or handling of the locomotive or in failing to keep it in proper repair.-MCCULLEN V. CHICAGO, ETC. RY. Co., U. s. c. C. of App., Eighth Circuit, 101 Fed Rep. 66.

84. RAILROAD COMPANIES-Statute Requiring Passenger Trains to stop at County Seat.-The requirement that all regular passenger trains must stop at county seats, which is made by the Illinois act of March 21, 1874, § 26, constitutes a direct burden upon interstate commerce in violation of the United States constitution, so far, at least, as that statute requires through interstate passengers trains to stop at such stations when adequate train service has been provided for local traffic.-CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS BY. Co. v. PEOPLE OF TH & STATE OF ILLINOIS, U. S. S. C., 20 Sup. Ct. Rep. 722.

85. RECEIVERS-Accounting - Estoppel to Object.Creditors who stand by and make no objection while the property of their debtor, a corporation in the hands of receivers, is sold by the sheriff under order of the court, and who acquiesce in the manner in which such sale is conducted, will not be heard, upon an opposition to the receivers' final account, filled long afterwards, to complain that the sheriff did not conform to the terms of the order, and sold in lots, when he should have sold in block.-IN RE SHEETS LUMBER CO., La., 27 South. Rep. 809.

[blocks in formation]

to recover damages for a personal injury resulting from alleged negligence in the operation of the road is not removable, as a case arising under the constitution or laws of the United States, solely on the ground that the receiver was appointed by a federal court. The liability which is the subject-matter of the action is one arising under general law or State statute, and not dependent on the constitution or any law of the United States; and the appointment of the receiver was, moreover, made under general equity powers common to all courts of chancery.-GABLEMAN V. PEORIA, ETC. RY. Co., U. s. C. C. of App., Seventh Cir cuit, 101 Fed. Rep. 1.

87. SALES-Fraudulent Representations-Rescission. -Where the buyer of goods, in making a statement of his assets and liabilities, falsely stated the amount of his liabilities to be less than they actually were, knowing that the seller had requested such statement as a basis for determining as to his credit, the seller, if he relied on the statement, on discovering such falsity, may rescind the sale, and recover the goods, though the buyer intended to pay for the goods, and did not intend to defraud the seller thereof.-MORRIS V. POSNER, Iowa, 82 N. W. Rep. 755.

88. SALES-Seller's Title - Ignorance of Purchaser.An importer bought cotton under an agreement with plaintiffs, his bankers, whereby they honored drafts for payment, took bills of lading, and received from the importer a trust receipt for the cotton, and as it was sold the sale notes were transferred to them. Defendants, to whom a sale was made, promised to pay plaintiffs, to the importer's account, but afterwards payment was made, by agreement, in a different manner. Other similar transactions had taken place between defendants and the importer, and defendants had never been informed of the agreement between the importer and plaintiffs. Held, that defendants were not liable to plaintiffs for the cotton sold.BROWN V. WILLIAM CLARK CO., R. I., 46 Atl. Rep. 239.

89. SPECIFIC PERFORMANCE-Evidence.-This action was brought to compel specific performance of a contract to sell land, whereby defendants, upon certain conditions, agreed to sell to plaintiffs the land described in the complaint. Upon a trial anew in this court, and upon consideration of the evidence and facts in the record, it appears that long prior to the commence. ment of this action the plaintiffs had transferred, each acting separately and at different dates, all their right, title, and interest arising under the contract of pur chase and sale to these defendants; that such transfers were made knowingly and willingly, without fraud, and upon adequate consideration. Accordingly, held, that the plaintiffs are without quity, and have no standing in court upon which ac aim of specific performance can be predicated.-MAGNUSSON V. LINWELL, N. Dak, 82 N. W. Rep. 743.

90. SPECIFIC PERFORMANCE - Oral Contract Statute of Frauds. Where, in consideration of an oral contract for the renewal of a lease for three years, the lessee was to make certain improvements, and be sued for specific performance, claiming a part performance in having made the improvements, and his evidence did not cleuly show the amount of labor and money ex pended, nor that the improvements were of permanent Value to the estate, nor that they were referable solely to the oral contract, and not to the requirements of the prior lease, a judgment for defendant entered on a motion for a nonsuit was proper.-ANDERSON SCHNEIDER, Wash., 60 Pac. Rep. 1125.

V.

91. SUNDAY LAW-Illegal Sales.-Under St. 1895, ch. 434, § 2, prohibiting business transactions on the Lord's Day, excepting the retail sale of drugs and medicines, where defendant, who carried on a drug business, sold cigars and tobacco on that day, defendant's evidence that he stated to the purchaser when he asked for the articles that he would sell them as drugs was properly excluded, as the evidence offered had no tendency to show that the sale was within the protec

tion of the statute.-COMMONWEALTH V. GOLDSMITH, Mass., 57 N. E. Rep. 212.

92. TAXATION Bills and Notes. -Non-negotiable notes representing loans in Louisiana made by the agent of a corporation doing business therein, when kept within the State by the agent, may be subjected to taxation by the law of the State in which they are held.-COMPTOIR NATIONAL D'ESCOMPTE DE PARIS V. BOARD OF ASSESSORS, La., 27 South. Rep. 801.

93. TAXATION-Grain in Elevators Constitutional Law. Chapter 5 of the Laws of 1899, which relates to the assessment and taxation of grain in elevators, warehouses, and grain houses, does not violate section 176 of the State constitution, which requires that “laws shall be passed taxing by uniform rule all property according to its true value in money." Neither is such act obnoxious to subdivision 23 of section 69 of the constitution, which prohibits the legislature from passing local or special laws for the assessment or collection of taxes; nor to section 11 of the constitution, which requires that all laws of a general nature shall have a uniform operation,-and is a valid enactment.-MINNEAPOLIS & NORTHERN ELEVATOR Co. v. TRAILL CO., N. D., N. Dak., 82 N. W. Rep. 727.

94. TAXATION-State Board of Equalization-Powers. -The State board of equalization was empowered by Const. art. 12, § 15, to "adjust and equalize the valuation of the taxable property among the several counties of the State," which limits the rate of taxation to be imposed for such purposes. Held, that the State board of equalization was without power to increase apportionately the valuation of the property in the several counties of the State, and thereby increase the total.-STATE V. FORTUNE, Mont., 60 Pac. Rep. 1086.

95. TAXATION-War Revenue Tax-Stamp on Express Company's Receipt.-An express company is not forbidden by the act of congress of June 13, 1898, known as the war revenue act, from adding to its rates an amount sufficient to cover the cost of the stamp re quired to be affixed to a receipt issued to the shipper, and thereby shifting the burden of the tax upon the shipper, if the rate as increased thereby is not unreasonable.-CRAWFORD V. HUBBELL, U. s. S. C., 20 S. C. Rep. 701.

96. TAXES Payment by Second Mortgagor.-Under Rev. St. 1898, § 1158, providing that when one who has a lien on lands shall pay taxes on the same he shall have a further lien for the amount so paid, with interest, where a second mortgagee paid taxes, his lien was not paramount to that of the first mortgagee, but sim. ply additional to, and of the same nature as, that of his mortgage.-HILL V. BUFFINGTON, Wis., 82 N. W. Rep. 712.

97. TELEGRAPH COMPANY-Mental Suffering - Complaint. Where, in an action against a telegraph com. pany for delay in delivering a message, by reason of which plaintiff was unable to reach his home during the sudden illness of his wife and death of his child, the only element of damage alleged was mental suffering, the complaint was demurrable, since, being an action for tort, mental suffering, without other dam. age, is insufficient to sustain a cause of action.BLOUNT V. WESTERN UNION TEL. Co., Ala., 27 South. Rep. 779.

98. TRADE-MARKS — Injunction. The marking or weaving of the complainant's name on the selvedge or margin of silk manufactured by it is nothing more than a method of marking the manufacturer's name on his goods, and cannot be protected as a patented -process or trade mark, though complainant first introduced the method in this country.-STIRLING SILK MFG. CO. V. STERLING SILK CO., N. J., 46 Atl. Rep. 199. 99. USURY-What Law Governs-Place of Payment.Parties to a loan by a corporation of one State to a resident of another, to be paid to the borrower in bis own State, and secured by mortgage on real estate there situated, will be presumed to have contracted with reference to the laws of the State of the lender, where repayment of the principal of the debt is to be

there made; and the question whether the contract is usurious is to be determined by the law of that State, especially if, under such law, it is valid, while under the law of the State of the borrower it is invalid.— HIERONYMUS v. NEW YORK NAT. BUILDING & LOAN ASSN., U. S. C. C., S. D. (Ala.), 101 Fed. Rep. 12.

100. VENDOR AND PURCHASER-Vendor's Lien.-Where a husband and wife are joint owners by the entirety of property, and contract to exchange it for other property and a certain amount of cash, the wife, on the death of her husband, is entitled to maintain a bill to enforce a vendor's lien against the property conveyed by them, for the unpaid balance of the purchase price. -KULLING V. KULLING, Mich., 82 N. W. Rep. 847.

101. WATERS-Irrigation-Failure of Supply.-A canal company, having contracted to furnish rice farmers a sufficient supply of water to irrigate their lands during the planting season, cannot be held liable for damages which resulted from an insufficient supply, if the same is attributable to the inadequacy of the fall of rain, from which source its canal was to be supplied.— LANDERS V. GARLAND CANAL CO., La., 27 South. Rep. 727.

102. WILLS-Construction-Trust.-Testator gave the income from his estate to his wife for life, remainder to two children and a trustee, who should pay the income from his share to a third child, and, in case he should for seven years at any one continuous period lead a moral life, the trustee should convey to him the remainder of the trust fund. Held, that the trust created by the will was closed when the child had led a moral life for seven years, irrespective of whether the widow was living at the time or not.-ORDWAY V. GARDNER, Wis., 82 N. W. Rep. 696.

103. WILL-Devise-Husband and Wife.-Where testatrix devised a life estate in common to her husband and children in a portion of her realty, subject to the payment of legacies out of the rents, the fact that the husband, who had received no other bequest, administered her estate on failure of her executors to prove the will, and received all the rents from the realty charged, showed no election to take under the will in lieu of his more valuable right of tenancy by the curt esy, and hence the land was subject, at his death, to payment of the legacies, though the husband had received sufficient rents to satisfy the same.-KERRIGAN V. CONELLY, N. J., 46 Atl. Rep. 227.

104. WILLS-Election by Widow-Homestead.-Under Comp. Laws 1897, §§ 8935, 8936, providing that when a widow shall be entitled to elect whether to take under the will or be endowed of the lands of her husband she shall be deemed to have elected to take under the will, unless within one year after the husband's death she shall commence proceedings for assignment of dower, a widow, by failing to commence such proceedings within one year after her husband's death, and by petitioning the probate court to proceed under the will, and allow her a reasonable sum instead of her dower, waives her right to dower.-KOSTER V. GELLEN, Mich., 82 N. W. Rep. 823.

105. WITNESS - Communication of Party with Decedent. Under a statute prohibiting the examination of a party to an action in regard to any personal transac tions between such person and a person deceased at the time of the action, parties defendant in an action by an heir to quiet title to inherited' land, where the defense is made that the land was inherited by a bastard child of the decedent, will not be allowed to testify to transactions, conversations, and illicit relations with deceased.-MCCORKENDALE V. MCCORKENDALE, Iowa, 82 N. W. Rep. 754.

106. WITNESS- Credibility.-The testimony of a witness whose reputation for truth and veracity in the neighborhood in which he resides is shown to be bad is not necessarily destroyed, but should be considered, and given such weight as, under all of the circumstances, the jury believe it entitled to. It should be disregarded if the jury believe it entitled to no weight.— HIGGINS V. WREN, Minn., 82 N. W. Rep. 859.

Central Law Journal.

ST. LOUIS, MO., AUGUST 3, 1900.

Can a charge of perjury be predicated upon an oath taken before a mere de facto officer? It is a general rule of universal application that the acts of an officer who comes into possession of an office under the forms of law and who assumes to act, are deemed to be legal and binding as to the public, and all persons who have any interest in the things done by him, and that the acts of a de facto judge cannot be collaterally attacked. It was claimed in the recent case of State v. Williams before the Supreme Court of Kansas that an exception to this rule is made in cases of perjury and some English courts apparently support the view that per: jury cannot be assigned on an oath administered by an officer de facto. Rex v. Verelst, 3 Camp. 432. Some of the courts of this country have followed the doctrine of the English cases, examples of which are Biggerstaff v. Com., 11 Bush, 169; Muir v. State, 8 Blackf. 154; Staight v. State, 39 Ohio St. 496. The case last cited was again considered by the Supreme Court of Ohio in State v. Gardner, 54 Ohio St. 24, and the court there remarked that the person who administered the oath in that case had received no appointment and had taken no oath, and as he lacked color of title he could not be regarded as an officer de facto. Therefore the Ohio case cannot be regarded as an authority for the English view. In Bishop's New Criminal Law, § 464, it is said that "the author submits that the English doctrine dates from a period long since the revolution; that the judges propounding it did not think of the true reasoning applicable to the question; that so did not such American judges as have followed it, and that the ac. curately considered law of perjury, while it requires a jurisdiction in the tribunal and the like, punishes false swearing to a relevant matter before it whenever it holds the parties bound by its judgment." Citing Haward v. Sexton, 1 Denio, 440; People v. Cook, 8 N. Y. 67. In Lambert v. People, 76 N. Y. 220, this question was considered, and, while there was a division of opinion

on some phases of it, the court held that a de facto title is sufficient to authorize the lawful administration of an oath, and that a commission regular on its face is unimpeachable. Some members of the court appear to have followed the doctrine of Rex v. Verelst, supra, holding that an oath administered by a person who never had any power to act, and where there was an entire want of authority from the beginning-a mere intruder in fact-could not be made the basis of a prosecution for perjury. In such a case something more must be shown than that a party has merely acted as an officer; but it is held that, where an appointment has been made by the appointing authority, and the officer has the color of office, and a semblance of competent authority, he is to be regarded as an officer de facto, and the matter of subsequent disability, non-residence or the like cannot be made the subject of inquiry in a perjury case.

The Kansas court following this rule in the Williams case, says that "in this country the de facto doctrine applies to the fullest extent, and we can think of no good reason why an exception should be made for the protection of those guilty of swearing falsely when their testimony may be made the basis of a conclusive judgment in either civil or criminal proceedings."

In a recent case before the United States Circuit Court of Appeals for the Seventh Circuit-In re Jerome L. Taylor-a question of interest concerning the United States Bankruptcy Act arose. The Bankruptcy law provides that any natural person except a wage-earner or a person engaged chiefly in farming or the tillage of the soil

may be adjudged an involuntary bankrupt upon default or an impartial trial. The alleged bankrupt did not appear or answer, but the appellant who had obtained a lien upon this property, appeared and set up the fact in an answer. There was nothing in the petition to bring the alleged bankrupt within the terms of the statute. It did not allege what the defendant's business or occupation was, and there was no allegation to show that he did not come within the excepted classes.

"Farmers and wage-earners," says United States Judge Bunn, in deciding the case,

"constitute a large majority of the people. These are excepted from that portion of the clause relating to involutary bankruptcy, and the petition should either have shown what the business of the defendant was, or that he did not come within the excepted classes. The answer set up this fact, the allegations of which, when the case was submitted on the pleadings, without proofs taken, must and would have been taken as true had not the court sustained the exceptions of the petitioners to the appellant's answer. The answer was a good and valid answer to the petition and the exceptions to it should not have been sustained by the court. The statute expressly provides that creditors other than the original petitioners may file an answer and be heard in opposition to the prayer of the petition. If they can appear in the case and file an answer, then it follows that they can set up any facts which go to defeat the proceeding.

The

If the answer made by the appellant was true, then it was not a case for involuntary bankruptcy and should have been dismissed. If Taylor was simply a fariner or chiefly a farmer, and engaged in the tilling of the soil, there was no authority or jurisdiction under the law to force him into bankruptcy. appellant might gain a rightful preference by obtaining judgments, as it did and issuing executions, which, in the hands of the sheriff became a lien upon the defendant's property. This being the case, and the appellant being the real party in interest it would be very strange if it could not set up the only plea which could avail to protect its property rights, so legally acquired. If the facts alleged in the answer were true it had a vested right which could not be taken away by the default of the defendant in the bankruptcy proceeding to appear and answer nor without due process of law and a hearing in court. These the appellant has not had. If the petitioning creditors wish to contest the question raised by the answer, there should have been a replication put in denying the allegations and a trial had before an adjudication was made. Simpson v. Ready, 12 M. & W. 740; Vavasour v. Ormrod, 6 B. & C. 430; Potter's Dwarris on Stat. & Cons., 119; Maxwell Land Grant Co. v. Lawson, 151 U. S. 586; Leidigh Carriage Co. v. Stengel, 2 Am. Bank. Rep. 383; Sturges v. Croninshield, 4 Wheat.

122; Geo. M. West Co. v. Lea Bros. & Co., 2 Am. Bank. Rep. 463."

NOTES OF IMPORTANT DECISIONS.

CORPORATIONS-PROMOTER.-In Hayward v. Leeson, 75 N. E. Rep. 656, decided by the Supreme Judicial Court of Massachusetts it appeared that promoters of a corporation, subsequent to the creation thereof, and while they were the sole stockholders, voted to issue its corporate stock to themselves in payment for services rendered in securing options of land, which they assigned to the corporation. The stock so issued equaled the estimated profits to be derived from such options. Thereafter the promoters invited the public to subscribe to the stock, without disclosing the facts as to such stock to the subscribers, or getting their consent to the payment of such remuneration. It was held that they were guilty of a fraud, and the company can, without returning the lands acquired under the options, maintain an action for the recovery of such stock, or damages for the loss thereof; that promoters of a corporation, who have incurred expenses and paid out money in procuring options for the benefit of the prospective corporation, are entitled to reimbursement therefor on creation of the corporation and that persons who were promoters of a corporation, and who, while they were the sole stockholders, procured the issuance to themselves of shares of the capital stock of the corporation in payment of secret profits made by them from the sale of property owned by them to the corporation, may be compelled to account for the shares so received, with dividends thereon received by them, or the proceeds of a sale thereof by them, if sold, with interest from the date of the sale, or for the fair market value of the stock at the time of its issuance, or, if it had no market value at the time of issuance, for the reason that the corporation was not yet launched, then the value at the time a market value may be found to have been established.

INTOXICATING LIQUOR-TRIAL-PERMITTING JURY TO TASTE.-In People v. Kinney, 83 N. W. Rep. 147, decided by the Supreme Court of Michigan, it was held that where a bottle of cider is admitted as evidence in a prosecution for selling fermented liquor, it is not error to permit the members of the jury to taste the contents, where the evidence tends to show that the cider is in the same condition as when purchased. The court said in part:

"After Mahoney had given his testimony, the prosecution offered the bottle of cider in evidence. Counsel for respondent objected to this offer on the ground that it was incompetent, irrelevant and immaterial. The court said: 'Unless the evidence in this case shows that the contents of

this bottle is in the same condition it was on October 5th, it would be of no value as evidence; but, if the evidence has any tendency to show it in the same condition, it would be admissible.' It was received in evidence, and the court then said: There is a tumbler, gentlemen, if you want to taste of it-any of you.' Respondent's counsel objected to these remarks of the court, instructing the jury that they might taste it. The argument of respondent's counsel here is that if the jury, by tasting it, smelling or drinking it, as they were ordered by the court, thereby acquired knowledge or formed opinions of its properties as to whether it was hard or fermented cider, those tasting or smelling it could not give evidence to their fellow-jurors without being sworn. There is nothing in the record showing or tending to show that any of the jurors smelled or drank of it, nor is there any evidence that the bottle was placed in their bands for examination. The record is entirely silent upon that subject; but, even if it had been handed them and they had tasted it, we think it would not have been error. The testimony of Mahoney, who put it in the bottle, tended to show that it was in about the same condition as when sold by the respondent."

BANKRUPTCY-ASSETS-LIFE INSURANCE.-In Morris v. Dodd, decided by the Supreme Court of Georgia, it is held, reversing the lower court, that a policy of insurance on the life of a bankrupt, though payable to his legal representa tive, does not, if it have no cash surrender value, vest in the trustee as assets of the bankrupt's estate. Accordingly, where a husband. within four months prior to the filing of his petition in bankruptcy, transferred to his wife an insurance policy on his life, which before such transfer was payable to his legal representatives, it was erroneous, on the petition of the trustee, filed upon the death of the bankrupt, pending the proceedings in bankruptcy, for the court to enjoin the widow from collecting, and the insurance company from paying to her, the amount due upon the policy; it appearing that it had no cash surrender value, either when the transfer was made or the petition in bankruptcy was filed. The court says in part:

"Section 67e of the Bankrupt Act of 1898, provides that all conveyances, transfers, assignments or incumbrances of his property, or any part thereof, male or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors or any of them, shall be null and avoid as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed,' etc., 'shall *** be and remain a part of the assets and estate of the bank

rupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. Section 70a of the act provides: The trustee of the estate of a bankrupt, upon his ppointment and qualification, *** shall *** be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, *** to all *** (5) property which prior, to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him: provided, that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum ascertained and stated, and continue to hold, own, and carry such policy free from claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets. Under the view we take of the question presented for determination, it is immaterial that the policies of insurance were transferred by the bankrupt to his wife within four months prior to the filing of his petition in bankruptcy. Upon the hearing, there was no evidence submitted for the trustee that either of the policies had any cash surrender value, either at the time of the transfer or at the time of the filing of the petition in bankruptcy, but there was much evidence in behalf of the defendants that the policies had no such value at either of the times indicated. If the policies, then, had no cash surrender value, we are of the opinion that they would not vest in the trustee, as assets of the bankrupt's estate, even if no changes had been made in them, and they had, to the date of his death, remained payable to his legal representatives. The exact point was decided in Re Buelow (D. C.), 98 Fed. Rep. 86, where it was held: 'A policy of insurance on the life of a bankrupt, which has no cash surrender value and no value for any purpose except the contingency of its becoming valuable at the death of the bankrupt if the premiums are kept paid, does not vest in the trustee as assets of the estate; and the court directed the trustee to deliver the policy to the petitioners, the bankrupt and his wife. District Judge Shiras, in Re Steele (D. C.), 98 Fed. Rep. 78, while holding that where a bankrupt held a policy payable to himself, his heirs or legal representatives, the surrender value thereof would be part of the assets of his estate in bankruptcy, very clearly intimated that this would not be so if the policy had no cash surrender value. To the same effect, see In re Lange (D. C.), 91 Fed. Rep. 361. In the case of Ætna Nat. Bank v. United States Life Ins. Co. (C. C.), 24 Fed. Rep. 770, it was held that a bill in equity could be maintained by creditors of a deceased debtor to reach premiums

« AnteriorContinuar »