petition and before adjudication a creditor attaches the bankrupt's assets, the trustee may recover the proceeds of the attachment, even though they were less than the percentage to which the creditor would have been entitled in the bankruptcy proceeding.33 The trustee's remedy when title is claimed adversely is, as has been seen, usually a suit in the proper court. This subdivision. should be read in connection with section 23, section 67e and section 70e.34

§ 6. Effect of a general assignment.-A general assignment, being not only a fraud on the act35 but an act of bankruptcy, seems to stand on a different footing from fraudulent transfers per se. The assignment being void by operation of law,36 no title passes, and the general assignee does not become an adverse claimant, but at most an agent of the assignor. Property of the bankrupt in his possession or that of his agent can, therefore, be reached summarily by proceedings in the bankruptcy court.37

87. Property which might have been transferred or levied upon. This subdivision probably includes nearly, if not all, the kinds of property mentioned in the four that precede it, as well as that specified in subdivision (6). All of the other subdivisions are silent as to time. Here, however, there is a distinct reference to "the filing of the petition," and the idea expressed in these words is doubtless implied as to the enumerated kinds of property. The words here are very general and seem to include every vested right and interest attaching to or growing out of property. Thus the property vesting in the trustee is what the bankrupt might have transferred prior to filing the petition, which vests in the trustee at the date of the adjudication.38 If the property in question could have been (1) transferred by, or (2) levied on and

33. State Bank of Chicago v. Cox, 16 Am. B. R. 32, 143 Fed. 91

34. Collier, Bankr., 6th ed., p. 591. 35. In re Gray, 3 Am. B. R. 647. See also section 23 of Bankr. Act.

36. West Co. v. Lea, 174 U. S. 590,

2 Am. B. R. 463.

37. Bryan v. Bernheimer, 181 U. S. 188, 5 Am. B. R. 623.

38. In re Burka, 5 Am. B. R. 12, 104 Fed. 326; Ellison v. Ganiard, 167 Ind. 471, 79 N. E. 450.

sold under judicial process against, the bankrupt, it passes to the trustee; if, not, it does not. Whether the property has a market It must appear that the property in pos

value is immaterial.39

40

session of the bankrupt is subject to claims or liens valid as against his creditors, otherwise it passes to his trustee.* Where under a State statute a plaintiff's interest in a pending action is assignable, and is of such a character as to enable his creditors to obtain a benefit therefrom upon an administration of his estate, such interest has been held to be property within the meaning of this subdivision rather than "a right of action," under subdivision (6).41 The language of clause (5) is sufficiently broad to include not only the property belonging to the bankrupt absolutely; but also such property the title to which is, under a State law, held to be in him, as to his creditors.42 Where a broker purchases stock for a customer and retains the stock as security for the amount due thereon, the relationship of pledgor and pledgee exists between the parties; if the broker is adjudicated a bankrupt the owner of the stock is entitled to a delivery thereof upon payment of the amount due.43 Cases of a miscellaneous character will be found in the note below.44 Section

39. Kizsie v. Winston, Fed. Cas. 7,835.

40. In re Miller, 14 Am. B. R. 439. And see Hewitt v. Berlin Machine Works, 11 Am. B. R. 709, 194 U. S. 296.

41. First Nat. Bank v. Staake, 202 U. S. 141, 15 Am. B. R. 639; Cleland v. Anderson (Neb. Sup.), 10 Am. B. R. 429.

42. In re Tweed, 12 Am. B. R. 648; Chesapeake Shoe Co. v. Seldner, 10 Am. B. R. 466.

43. In re Berry (C. C. A.), 17 Am. B. R. 467, 149 Fed. 176; In re Bolling, 17 Am. B. R. 399; Richardson v. Shaw, 16 Am. B. R. 842, 147 Fed. 659; Hutchinson v. Le Roy, 8 Am. B. R. 20, 113 Fed. 212; In re Swift, 7 Am. B. R. 374, 112 Fed. 315.

44. As to the property of a partnership: In re Rudnick, 4 Am. B. R. 531, 102 Fed. 750; In re Groetzinger, 6 Am. B. R. 399. As to mortgaged realty: In re Kellogg, 7 Am. B. R. 623, 113 Fed. 120; affirmed 10 Am. B. R. 7, 121 Fed. 333. As to the proceeds of a sale under a void execution still in the hands of the sheriff: In re Easley, 1 Am. B. R. 715, 93 Fed. 419; In re Kenney, 2 Am. B. R. 494, 95 Fed. 427, 3 Am. B. R. 353, 97 Fed. 554, affirmed, 5 Am. B. R. 355, 105 Fed. 897. Compare also In re Francis Valentine Co., 2 Am. B. R. 188, 93 Fed. 953; In re Kimball, 3 Am. B. R. 161, and Levor, Trustee, v Seiter, 8 Am. B. R. 459. As to property vested in a receiver in the State court: In re Meyers & Co., 1

70a (5) is inapplicable to property held by a bankrupt under a contract for conditional sale. The " property which prior to the filing of the petition he could by any means have transferred " is property which he could have transferred lawfully on the same terms that he transfers it by law to the trustee. It does not include property of a third party which he was authorized to transfer only on condition that he sold it for value, or on condition that he sold it and held the proceeds for its owner.44a

§ 8. Remainders and interests in trust.-Vested remainders,45 even if contingent, pass to a trustee ;46 but do not where the con

tingency is one both of time of vesting and of person." 47 Where the interest of the bankrupt depends on the exercise of a discretionary power in trust, it does not pass to his trustee.48 Under the New York statute 49 the surplus income derived from a trust to receive and apply the rents and profits of real property is inalienable and does not pass to the trustee of the bankrupt beneficiary.50 Where, though title is in the bankrupt, another is the real party in interest under the doctrine of resulting trust, the trustee in bankruptcy will be directed to convey to the real owner.51 Where the bankrupt mingles trust funds with his own so that their identity is lost, the beneficiaries must share pari passu with the creditors.52 But if there has been no mingling, the trustee of a bankrupt estate takes no title, though he has the right to possession and a quasi-interest until the beneficiaries prove their right.53 Trust funds belonging to the bankrupt,54 and life

47. In re Gardner, 5 Am. B. R. 432; In re Hoadley, 3 Am. B. R. 780.

48. In re Wetmore, 4 Am. B. R. 335, 102 Fed. 290, aff'd 6 Am. B. R. 210, 108 Fed. 520. See also s. c. on application for discharge, 3 Am. B. R. 700, 99 Fed. 703. Compare In re Ehle, 6 Am. B. R. 476.

49. N. Y. Real Property Law, section 78.

50. McNaboe v. Marks, 16 Am. B. R. 767; Butler v. Baudoine, 16 Am. B. R. 238n, 84 App. Div. (N. Y.) 215, aff'd 177 N. Y. 530. Contra, In re Baudoine, 3 Am. B. R. 651, 101 Fed. 574; Brown v. Barker, 8 Am. B. R. 450. Compare Smith v. Belden, 6 Am. B. R. 432, for method of reaching such surplus.

51. In re Davis, 7 Am. B. R. 258. See also In re Coffin, 16 Am. B. R. 682, 146 Fed. 181; In re Taft, 13 Am. B. R. 417, 133 Fed. 511.

52. In re Kurtz, 11 Am. B. R. 129, 125 Fed. 992; In re Mulligan, 9 Am. B. R. 8, 116 Fed. 715; In re Marsh,

8 Am. B. R. 576, 116 Fed. 396; In re Richard, 4 Am. B. R. 700, 104 Fed. 792. But where money is entrusted to the bankrupt for safe keeping, and is deposited by him to his credit, it may be claimed by the owner out of the balance of such deposit coming into the hands of the trustee, although it cannot be specifically identified, it appearing that at all times the bankrupt's account at the bank exceeded the amount entrusted to him. In re Royea, 16 Am. B. R. 141, 143 Fed. 182.

53. In re Cobb, 3 Am. B. R. 129, 96 Fed. 821. If the trust is coupled with an interest, he becomes vested with the interest. Walker v. Siegel, Fed. Cas. 17,085.

54. Merrill v. Hussey, 101 Me. 439, 64 Atl. 819, where a father uses money of his sons without their consent to buy a farm, and thereafter sells the farm at a profit, the profits when invested become an asset in the hands of the trustee.

interests vested in him,55 are deemed property passing to the bankrupt's trustee.55 Reference must usually be had to the State statutes and decisions. Cases under former laws are cited in the note below.56

So

§ 9. Dower and curtesy rights. Here also the State law controls. It is the general rule that, if the doweress is the bankrupt and her estate is vested, the trustee takes her interest;57 conversely, if her interest is still inchoate, it does not pass. also of the husband's curtesy; if vested, it passes; if merely initiate, it does not.58 Where, however, the husband, not the wife, is the bankrupt, her inchoate interest is, in most States, sufficiently vested to endure, and the husband's title passes to the trustee subject thereto;59 if the husband dies after his bankruptcy, she is entitled to the same interest she would have taken had he died before it.60 On the other hand, where the wife is the bankrupt, the husband is not entitled to have his curtesy initiate admeasured. Upon the death of a bankrupt the court in which the order of adjudication was entered has exclusive jurisdiction to determine his widow's right of dower out of all the lands of which the husband died seized, including those located in a State other than the State of the bankrupt's residence.61 Cases collaterally valuable are cited in the note below.62

55. Adair v. Adair's Trustee, 30 Ky. L. R. 857, 99 S. W. 925.

56. Nicholas v. Eaton, 91 U. S. 716; Sanford v. Lackland, Fed. Cas. No. 12,312; Durant v. Hospital, etc., Co., Fed. Cas. No. 4,188.

57. Compare In re Watterson, 95 Pa. St. 312.

58. Matter of Russell, 13 Am. B. R. 24; Hesseltine v. Prince, 2 Am. B. R. 600, 95 Fed. 802.

59. In re Forbes, 7 Am. B. R. 42; In re Schaeffer, 5 Am. B. R. 248, 104 Fed. 973; Porter v. Lazear, 109 U. S.

84; Matter of Hawkins, 9 Am. B. R. 598. But see Kelly v. Strange, Fed. Cas. No. 7,676.

60. In re Hester, Fed. Cas. No. 6,437. But see Bosteck v. Jordan, 54 Tenn. 370. The rule is different under the Arkansas statute, In re McKenzie (C. C. A.), 15 Am. B. R. 679, 142 Fed, 383.

61. Hurley v. Devlin, 18 Am. B. R. 627.

62. In re Garner, 6 Am. B. R. 596; In re Rooney, 6 Am. B. R. 478; Hawk v. Hawk, 4 Am. B. R. 463, 102 Fed. 679.