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the terms stated. The meaning of the provision is clear, that all the property of the bankrupt except that specified in the proviso, shall be vested in the trustee, and that also shall pass unless the bankrupt avail himself of the privilege granted him by the law. The contract in question gives to the bankrupt the right to receive at a certain date a specified sum of money, contingent upon his surviving to that date. This is a vested right of property existing in the bankrupt, which passes to the trustee. It is a property right which he could have transferred, and it falls within the comprehensive language of the section which vests title in the trustee. 2 May, Ins. § 459d; Porter v. Porter, 2 Willson, Civ. Cas. Ct. App. § 434; Cameron v. Fay, 55 Tex. 58; Levy v. Van Hagen, 69 Ala. 17; Tompkins v. Levy, 87 Ala. 263, 6 South. 346, 13 Am. St. Rep. 31; Boyden v. Insurance Co., 153 Mass. 544, 27 N. E. 669; Tennes v. Insurance Co., 26 Minn. 271, 3 N. W. 346; Talcott v. Field, 34 Neb. 611, 52 N. W. 400, 33 Am. St. Rep. 662; Evers v. Association, 59 Mo. 429. In the last case it was ruled that there was no joint interest in the policy during the continuance of the life of the insured; that while he lived he had the sole and absolute interest, with a bare contingency resulting to the other party, that, "had he survived to the designated time when the payment of the policies was to inure to him personally, he, and he alone, would have reaped their fruits, and no other one was jointly interested with him"; and that the interest of the beneficiary did not take effect until the insured's interest ceased by death. It does not appear that the policy in that case contained a provision like the one here, providing for a paid-up policy to the beneficiary named in case of default in the payment of premium after three annual premiums had been paid. This provision, even if the doctrine of the Missouri case can be upheld to its full extent, would, as we think, give to the wife a present right and interest in the policy, to receive upon the conditions stated a paid-up policy upon the life of her husband,—a right however, which she could not exercise without his consent, since that would be to deprive him of his right to receive the amount specified at the conclusion of the tontine period.
The case of Ex parte Dever, 18 Q. B. Div. 660, is not in conflict with our conclusion. The policy there was like to the one here, except that the right of option at the conclusion of the tontine period was vested in the wife, and not the husband. The right of the husband to receive anything under that policy rested in the possibility of the wife, at the end of the tontine period, exercising her option to receive a specified sum of money, which, it was argued, under the marital laws of England, would pass to the husband. Whether it would so pass was not determined; but the court ruled that the husband had no property right in the policy which passed to the trustee, because it was something that could only accrue in the exercise of the wife's option on the double contingency which had not happened at the time he obtained his discharge. The court said:
"It was the mere hope of a hope that something might come to him by reason of his surviving the ten years, and of his wife's exercising her option in that particular manner, and it was a mere spes, and there was nothing which could vest in the trustee in bankruptcy."
In re Slingluff (D. C.) 106 Fed. 154, 3 Nat. Bankr. News, 254, 5 Am. Bankr. R. 76, was a case upon an endowment policy, where the specified amount was payable to the bankrupt at the date stated, if he survived, and, if he should die within the period, then to the wife or her legal representatives. Judge Morris in that case delivered an able and exhaustive opinion, covering the whole ground here considered, and reaching the conclusion to which we are compelled.
It remains to consider how this matter should be dealt with by the court below. The trustee takes the policy as of the date of the adjudication in bankruptcy, and subject to all its burdens. He takes it subject to the duty of continuing it in force by the payment of semiannual premiums until the completion of the tontine period. That will involve a large outlay of money, which may prove burdensome to the estate. He also takes the policy subject to the contingency of the death of the bankrupt before the completion of the tontine period, and, if that contingency should happen, he will fail to realize anything, and possibly the bankrupt's estate might lose the amount disbursed in payment of premiums. There would seem to be two modes of practically and equitably solving the problem. One is to ascertain, if it be possible, the actual value of the policy at the date of the adjudication in bankruptcy, and the equitable apportionment of that value among the respective interests in the policy, and then, in analogy to the declared policy of the law as stated in the proviso, to permit the bankrupt, if he so desire, to pay to the trustee that proportion of the actual value which would be coming to him at the time stated and upon the plan suggested, and that the trustee thereupon convey all claim to the policy to the bankrupt. The other plan is to direct a sale by the trustee of the interest of the bankrupt in the policy at the date of the adjudication in bankruptcy. These views are suggested to the court below for its consideration in the equitable disposition of the matter under the rules which we have declared, and because the record furnishes no data from which specific directions may be given.
GROSSCUP, Circuit Judge (dissenting). I concur in the opinion that the policy does not fall within the provisions of section 70a relating to a cash surrender value; but am forced to dissent from that portion of the opinion which holds that in virtue of the condition of the policy relating to David Welling's right of election upon the completion of the tontine dividend period, November 27, 1906, Mrs. Welling's vested interest will cease, and Welling's right become a property which could have been transferred April 13, 1901, the date of adjudication, or which might have been levied upon and sold under judicial process against him.
The policy, on its face, contracts to pay Anna B. Welling, if living, or, if not living, the surviving children, the sum of ten thousand dollars within sixty days after satisfactory proofs of death of David Welling, subject, however, to the condition, among others, that upon the completion of the tontine period, November 27, 1906, (the policy not having been terminated previously by lapse or death) David
Welling should have the option: (a) to withdraw in cash the policy's entire share of the assets; (b) to convert such share into a `paid-up policy for an equivalent amount; (c) to continue the policy in force on the ordinary plan, withdrawing the accumulated surplus in cash, or, (d) to continue the policy for the original amount, applying the tontine dividend to the purchase of an annuity for the benefit of David Welling.
Now, the law holds, that in a policy of insurance taken out by a husband on his life, making a reasonable provision for the family after his death, without intent to hinder, delay or defraud creditors, the interest of the wife vests from the moment the policy is issued, and remains vested until the policy matures, unless there is a clear provision to the contrary. The policy under consideration contains no clear contrary provision. The right of Welling to take out, at a given period, the value of the policy in cash, connected as it is with the other alternative, that the policy may continue in force on the ordinary plan, is not in itself a divestment of Anna B. Welling's interest. The alternative-the continuance of the policy in force on the ordinary plan-is a continuance of her vested interest as it was previously. The effect of the contract, taken as a whole, is that the insurance company promises to pay Anna B. Welling, or the surviving children, upon the death of David Welling, the sum of ten thousand dollars, unless on November 27, 1906, David Welling shall have elected to withdraw in cash the policy's entire share of the assets. In such a contract, the interest of Anna B. Welling, though subject at the option of David B. Welling (to be exercised November 27, 1906) to termination, is not, in fact, terminated or divested until the option has been exercised.
Assuming then, that Anna B. Welling has a vested interest in the policy, not terminable November 27, 1906, unless David B. Welling elects to take out in cash the policy's share of the assets, it is clear to me that such right of election is one not transferable, or subject to levy upon judicial process. If the subject matter of the option were a mere future interest or expectancy, disconnected from obligations to, or with the interests of, another, there might be little doubt of its assignability. But that is not its nature or substance. The subject matter of the option is a policy of life insurance-the provision a husband makes for his wife and family in the event of his death. Presumably, the wife has contributed her share toward obtaining the premiums that have enabled the husband to carry along the policy; presumably, too, any other provision for her or the family has been affected by the fact that a life insurance provision is in existence. If disposed of, such a policy, unlike other property, brings no equivalent-once let go it can in many cases never be replaced. An option so intimately interwoven with the wife's interest, and with the obligations due to her from her husband, cannot be exercised against her interests, except in exact accordance with the substantial terms in which the option is formulated and put in force.
One of those terms is that it shall be exercised November 27, 1906. Time, here, so far as Mrs. Welling is concerned, is of the
essence of the option. The interest of the wife, and the sense of obligation of the husband, may be different on that day from that of any day preceding or following. It is, in my judgment, the wife's right that the election-affecting as it does her vital interestsshall be exercised only in view of the considerations that may influence the husband at that time; neither those before nor those after.
Another term of the option is that the election shall be by the husband himself. No one else can stand in his place, or exercise the option under the circumstances and sense of obligation that will influence him. It is the wife's right to have the husband's judgment, not that of a stranger-the judgment of the man who presumably has an interest in her future, not that of a man whose interest in this respect is in conflict with hers. I am of the opinion that a fair interpretation of the spirit of the policy would disallow the exercise of the option of Welling until the day for its exercise had arrived, and would then disallow its exercise, unless it be by the judgment of Welling himself. Such an interpretation, of course, forbids the view that the option is transferable in advance-in this case six years in advance-or was subject to levy by creditors.
The decree is reversed and the cause remanded to the court below with direction to proceed therein in accordance with the views expressed in this opinion.
(113 Fed. 202.)
HUTCHINSON v. LE ROY.
In re HUTCHINSON, Petitioner.
(Circuit Court of Appeals, First Circuit. January 8, 1902.)
Nos. 386, 390.
1. BANKRUPTCY-PROCEDURE ON REVIEW.
The decision of a court of bankruptcy on a petition claiming ownership of funds in the hands of a bankrupt's trustee, where the facts are undisputed, may be reviewed by a petition for revision, under Bankr. Act 1898, § 24b, and not by appeal under that act.1
2. SAME-PROCEEDS OF PLEDGE-RECOVERY FROM TRUSTEE OF PLEDGEE.
A pledgee of a certificate of stock repledged it to a bank, without the knowledge of his pledgor, to secure a debt of his own. He afterwards made a general assignment, and still later was adjudged a bankrupt. The bank sold the securities, and, after its claim was paid, had a sum remaining exceeding the proceeds of such certificate, which it paid over to the assignee, who had been previously notified by the original pledgor of his right to the certificate, subject to payment of his own debt, which he had duly tendered. The assignee had funds in his hands exceeding the proceeds of such certificate at all times until he turned the same over to the trustee in bankruptcy, who thereafter
1Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.
also had at all times funds in excess of such amount. Held, that the original pledgor had the equitable right to follow the fund received by the bank in excess of its debt through the hands of the assignee and into those of the trustee, and to recover from the latter the proceeds of his stock, less the amount of his indebtedness to the bankrupt.
The original pledgor, having no knowledge that his stock had been repledged by the bankrupt until after he had filed his claim as a preferred creditor of the bankrupt estate, cannot be said to have waived any rights, or to have been guilty of laches which would preclude him from thereafter asserting the same against the fund in the hands of the trustee.
In re Dickson, 49 C. C. A. 574, 111 Fed. 726, affirmed as to costs.
Appeal from, and Petition for Revision of Proceedings in, the District Court for the District of Massachusetts.
For opinion below, see 108 Fed. 212.
Addison C. Burnham and Albert S. Hutchinson (Freedom Hutchinson, on the brief), for appellant.
Roland Gray (Ropes, Gray & Gorham, on the brief), for appellee. Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.
PUTNAM, Circuit Judge. These two proceedings were brought to revise the decree of the district court for the district of Massachusetts, sitting in bankruptcy, directing a payment to Le Roy by the trustee in bankruptcy of $6,490.29. As occurred in Re County of Worcester, 42 C. C. A. 637, 102 Fed. 808, and in Re Fisher, 43 C. C. A. 381, 103 Fed. 860, 51 L. R. A. 292, and in Re Dickson (C. C. A.) III Fed. 726,2 the moving party in this court, who is the trustee in bankruptcy, being uncertain as to the nature of his remedy, both appealed, which constitutes the case of Hutchinson v. Le Roy, and filed a revisory petition, which constitutes that of Hutchinson, petitioner. There can be no doubt that the latter proceeding is the correct one, and the appeal must be dismissed for want of jurisdiction.
The proceeding commenced by Le Roy filing a proof of debt. claiming this $6,490.29, but closing the proof with the following, "Deponent claims to be entitled as a preferred creditor." What Le Roy thus sought to accomplish could not be accomplished in that form, as the claim which he intended to maintain was not a preferred debt, under the bankruptcy act of 1898. Subsequently Le Roy obtained leave to amend as follows:
"And now comes the claimant, Stuyvesant Le Roy, and moves to amend his proof of claim heretofore filed by substituting therefor the following:
"The trustee appointed in the above-entitled bankruptcy proceeding received $6.490.29, belonging to this claimant, and forming no part of the estate of the bankrupts. Wherefore this claimant prays that the trustee may be ordered to pay to him said sum, less the amount of the dividend which has already been paid to him.
"This application is made without prejudice to the claimant's right to share as a general creditor for said amount of $6,490.29, in the event of the denial of this prayer for full payment.'"
2 49 C. C. A. 574.