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cited pro and con as conclusive each way. In view of the contradictory expressions which we quote from the will, first imposing the duty of working out the trust on the executors eo nomine, and afterwards speaking in the same breath of executors and trustees, it may well be doubted whether any of those decisions are strictly in point, and whether the effect of the will in this respect is not a matter of doubt. We do not, however, find it necessary to determine these questions. Neither do we find it necessary to determine whether the rule which admits executors or testamentary trustees into certain federal courts, and particularly certain courts located in the District of Columbia, including the Supreme Court, from whatever jurisdictions such executors or trustees may have received their appointments, enables executors or trustees qualified by a surrogate of the state of New York to intervene effectually in proceedings in bankruptcy in the district of Massachusetts. The circumstances shown by this record are so peculiar that we are not required to enter upon any such general considerations.
The petitioners, Frederick M. Tucker and Tracy H. Tucker, in the petition filed on July 7, 1904, following the order of May 3, 1904, reserving to Marion E. Tucker, or those who could "properly represent her," the right to proceed further, which petition of July 7, 1904, was denied on September 30, 1905, for the reasons given by the learned judge of the District Court already explained, occupied a peculiar position. They were not only the bankrupts, but they were the executors, or trustees, appointed by the surrogate in the state of New York. They were also the loaners and borrowers of the assets in . question, and the pledgors and pledgees thereof; and, in addition thereto, they were clearly tort-feasors in equity, if not in law, in availing themselves of the assets of the estate for their own personal benefit. Therefore they were not suitable parties to represent in equity any interests whatever, except to take such action as they might deem proper to relieve themselves from jeopardy. Marion E. Tucker did not unite in that petition, and thus personally avail herself of any rights under the order of May 3, 1904; and, plainly, Frederick M. Tucker and Tracy H. Tucker, in the peculiar position which they occupied, were in no sense persons who could "properly represent her" in the terms of the same order. This is so plain that we must presume that the court proceeded on the petition filed on July 7, 1904, without its attention being called to the anomalous condition of parties in the respects we have spoken of. Of course, it cannot be said that it was the duty of the judge of any court, even of a judge standing in certain respects in the position of one administering equitable rules, and, therefore, analogous to that of a chancellor, to bear in mind that the interests of an infant are involved, which ought to be independently represented by some person in her behalf, or that it is the duty of such a judge, if the matter comes to his mind, to act of his own volition in that direction. Nevertheless there can be no question that, if the attention of the learned judge of the District Court had been called to the situation presented to us, he would have declined to act on the petition of July 7, 1904, until Marion E. Tucker was
properly and independently represented. It seems quite certain that the learned judge who entered the order of May 3, 1904, had in view the necessity of guarding this very point, because the terms of that order are clear and special in that direction. Certainly, however this may be, the proceedings on the petition of July 7, 1904, were not such as the order of May 3d contemplated; and there has been no intervention in accordance with that order by Marion E. Tucker personally, or by any one who could "properly represent her.” Therefore, according to the literal terms of that order, the right reserved to her still existed in full force when the petition of May, 1906, filed as of November 27, 1905, now brought before us, was presented to the District Court.
However this may be, there can be no doubt of our right to grant the petition before us. If, notwithstanding the express reservation in the order of May 3d, the proceedings on the petition of Frederick M. Tucker and Tracy H. Tucker of July 7th were in any way effective, they are at least voidable, thus following the analogy of proceedings in equity, which analogy governs courts in bankruptcy in these particulars; so that the order entered on that petition, if not void, could have been avoided by proceedings analogous to a bill of review, or to an original bill as the case may be, filed by the infant, by her next friend or guardian ad litem, or by the guardian of the domicile. The books are full of learning on this point, so that we need only to refer in this connection to White v. Joyce, 158 U. S. 128, 146–149, 15 Sup. Ct. 788, 39 L. Ed. 921. Indeed, in the present case there was no necessity for any formalities whatever. It must be regarded as well settled that the rule relating to the powers of ordinary judicial tribunals, limiting summary proceedings to the term at which judgment is entered, does not apply to proceedings in bankruptcy. In re Worcester County, 102 Fed. 808, 811, 42 C. C. A. 637, decided by us on April 20, 1900; In re Ives, 113 Fed. 911, 913, 51 C. C. A. 541, decided by the Circuit Court of Appeals for the Sixth Circuit on February 10, 1902. Consequently the proceedings on the petition of July 7, 1904, could have been set aside summarily by the District Court on a petition therefor within such a reasonable time that the petitioner could not be, or should not be, charged with laches. We have said that no laches exists here.
Whatever might be our relations to an appeal in the proper sense of the expression, we sit on a petition for review as a court of bankruptcy. Therefore, on this petition, so far as necessary to give full effect to it, we have all the powers of the District Court. Consequently we ought to give complete relief, and therefore we ought to set aside the order of September 30, 1905, which denied the petition of July 7, 1904, vacate the proceedings in reference to that petition, and direct that it be dismissed without prejudice; and we ought further to permit Marion E. Tucker, or some person who "properly represents her," in view of her infancy, to intervene in accordance with the order of May 3, 1904, and as asked for in the petition now before us.
Let there be a decree vacating the order of September 30, 1905, and directing that the petition filed on July 7, 1904, be dismissed with
out prejudice, and further directing that Marion E. Tucker, or some suitable person who can properly represent her, or properly represent her interests under the will of her grandfather, Luther P. Tucker, be permitted to intervene and establish her (or their) claims, if any there be, in accordance with our opinion passed down this day,
In re YOUNGSTROM.
(Circuit Court of Appeals, Eighth Circuit. April 23, 1907.)
L BANKRUPTCY-PETITION TO REVISE_TIME.
An order of a court of bankruptcy confirming an order of a referee denying a claim of certain exemptions asserted by the bankrupt's wife, not being an 'order made specially appealable by Bankr. Act July 1, 1893, C.-541, § 25a, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432), was review. able on a petition to revise, presented within the six months generally limited for invoking the appellate jurisdiction of the Circuit Court of Appeals by Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829 (U. S.
Comp. St. 1901, p. 552). 2. SAME-HOMESTEAD EXEMPTIONS.
Mills' Ann. St. Colo. $ 2133, provides that, to entitle any person to the benefit of a homestead exemption, he shall cause the word “homestead" to be entered in the margin of his record title to the same, which entry shall be signed and attested by the clerk and recorder of the county in which the premises are situated, and, if the property belongs to the husband, the entry may be made by the wife and vice versa. Held, that where the alleged homestead of a bankrupt had not been so designated on the record, when the bankruptcy petition was filed, at the time of the adjudication or the appointment and qualification of the trustee, the premises were not exempt under the state law, and could not be made exempt under Bankr. Act July 1, 1898, c. 541, $$ 6, 21, 70a, 30 Stat. 548. 552, 565 [U. S. Comp. St. 1901, pp. 3424, 3430, 3452), providing for the vesting of the bankrupt's property in the trustee and for the setting
apart of exemptions. 3. SAME-EFFECT OF ADJUDICATION.
On a bankrupt's adjudication, the debtor's entire nonexempt estate is in legal contemplation brought into custodia legis and appropriated to the payment of his debts as effectually as if taken in execution or attachment, subject to the qualification, except as otherwise provided, that the property is appropriated in the same condition and subject to the
same equities as when in the possession of the bankrupt. 4 SAME_VESTING OF TITLE-TIME.
On the appointment and qualification of a bankrupt's trustee, the title to the bankrupt's property is vested in him as of the date of the ad
judication. 5. SAME-EXEMPTIONS-STOCK IN TRADE.
Mills' Ann. St. Colo. 8 2562, exempts to a debtor who is the bead of a family stock in trade not exceeding $200 in value, and section 2563 declares that, when the head of a family shall die, desert, or cease to reside with the same, the family shall be entitled to receive all the benefits and privileges conferred on the head of the family residing with the kame. Held, that where a merchant became a bankrupt and absconded with the intention never to return and deserted his wife, who, with him, had constituted a family, she constituted what remained of the family, and was entitled to the $200 exemption from his stock in trade,
Petition for Revision of Proceedings of the District Court of the United States for the District of Colorado, in Bankruptcy.
Theodore H. Thomas (Thornton H. Thomas, on the brief), for petitioner.
Frank L. Grant (Lewis B. Johnson, Edwin A. Van Cise, Henry T. Rogers, Lucius M. Cuthbert, and Daniel B. Ellis, on the brief), for respondent.
Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.
VAN DEVANTER, Circuit Judge. This is an original petition for the revision in matter of law of an order of the District Court confirming an order of a referee in bankruptcy denying a claim to certain exemptions asserted by the wife of a bankrupt.
Because it was not presented within 10 days after the making of the order sought to be revised, the respondent has moved to dismiss the petition; his contention being that our jurisdiction, under section 246, of the bankruptcy act of July 1, 1898 (30 Stat. 553, c. 511 [U. S. Comp. St. 1901, p. 3432]), to revise in matter of law proceedings in bankruptcy can be invoked only within the ten days limited for taking appeals under section 25a. The decisions upon this and correlated questions have not been harmonious (see Act March 2, 1867, c. 176, 14 Stat. 518, 520, S$ 2, 8; Littlefield v. Delaware, etc., Co., Fed. Cas. No. 8,100; Bank v. Cooper, 20 Wall. 171, 177, 22 L. Ed. 273; In re Good, 39 C. C. A. 581, 99 Fed. 389; In re Worcester County, 42 C. C. A. 637, 611, 102 Fed. 808, 812 ; Steele v. Buel, 44 C. C. A. 287, 104 Fed. 968; In re New York Economical Printing Co., 45 C. C. A. 665, 106 Fed. 839; In re Groetzinger & Sons, 62 C. C. A. 124, 127 Fed. 124; In re Friend, 67 C. C. A. 500, 502, 134 Fed. 778, 780; S. C., 197 U. S. 620, 25 Sup. Ct. 797, 49 L. Ed. 909; In re Holmes, 73 C. C. A. 491, 142 Fed. 391), but, as the order sought to be revised is not one of those made specially appealable by section 25a, and as the petition was presented within the six months generally limited for invoking the appellate jurisdiction of a Circuit Court of Appeals (Act Jarch 3, 1891, c. 517, 26 Stat. 829, § 11 (U. S. Comp. St. 1901, P. 552]), we think the motion to dismiss must be denied (Steele v. Buel, supra; In re Holmes, supra).
One of the exemptions asserted by the petitioner and denied by the order in question was a homestead exemption in certain real property in Colorado. The material portions of the statutes of the state creating such an exemption are as follows (Mills' Ann. St. $$ 2132, 2133, 2131, 2137):
“Sec. 2132. Every householder in the state of Colorado, being the head of a family, shall be entitled to a homestead not exceeding in value the sum of two thousand dollars, exempt from execution and attachment, arising from any debt, contract or civil obligation entered into or incurred after the first day of February, in the year of our Lord one thousand eight hundred and sixty-eight.
**Sec. 2133 (as amended). To entitle any person to the benefit of this act, he sball cause the word "homestead to be entered in the margin of his record title to the same, which marginal entry shall be signed by the owner mak
ing such entry and attested by the clerk and recorder of the county in which the premises in question are situated, together with the date and time of day on which said marginal entry is so made; provided, that in case the husband is the owner of said homestead, the wife may cause such entry to be made and recorded, and the signature of the said entry by the wife shall have the same effect as if entered by the husband, the owner of the property. And, in case the wife is the owner of the homestead, and shall fail to make such homestead entry, the husband may cause the homestead entry to be made, and the signature thereof by him shall have the same effect as if the entry had been made by the wife, the owner of the property.
“Sec. 2134. Such homestead shall only be exempt as provided in the first section of this act, while occupied as such by the owner thereof, or his or her family."
"Sec. 2137 (as amended). That nothing in this act shall be construed to prevent the owner and occupier of any homestead from voluntarily mortgaging or otherwise conveying the same; provided, no such mortgage or other conveyance shall be binding against the wife of any married man who may be occupying the preinises with him, unless she shall freely and voluntarily, separate and apart from her husband, sign and acknowledge the same, and the officer taking the acknowledgment shall fully apprise her of her rights and the effect of signing the said mortgage or other conveyance; and provided, further, that if the owner of said homestead be the wife of any married man who may be occupying the premises with her, no such mortgage or other conveyance shall be binding against said husband, unless he shall sign and acknowledge said mortgage or other conveyance.”
The bankruptcy act invests the courts of bankruptcy with authority to "determine all claims of bankrupts to their exemptions” (section 2, cl. 11); requires the bankrupt to "prepare, make oath to, and file in the court within ten days, unless further time is granted, after the adjudication, if an involuntary bankrupt, and with the petition if a voluntary bankrupt, a schedule of his property,
and a claim for such exemptions as he may be entitled to” (section 7, cl. 8); directs trustees to "set apart the bankrupt's exemptions and report the items and estimated value thereof to the court as soon as practicable after their appointment" (section 47a, cl. 11); provides that "all property of the debtor conveyed, transferred, assigned or incumbered as aforesaid”that is, "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, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt 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 67e); and also provides :
"Sec. 6. This act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the State laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition." "Sec. 21.
(e) A certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt, and if recorded shall impart the same notice that a deed from the bankrupt to the trustee if recorded would have imparted had not bankruptcy proceedings intervened.”
“Sec. 70. (a) The trustee of the estate of a bankrupt, upon his appointment and qualification,
be vested by operation of law