Hawk v. Hawk , 102 F. 679 ( 1900 )

ROGERS, District Judge

(after stating the facts). It is plain from the language of the petition that it is based and proceeds upon the theory that the personal property, the proceeds of the sale of which are now in the hands of the trustee in bankruptcy, and the distribution of which proceeds it is the object of the' petitioner to enjoin, was the property of the bankrupt before and at the time of his adjudication, and that it was personal property. It does not require authority to show that the bankrupt at any time prior to his adjudication in bankruptcy might have disposed of this personal property without the consent of his wife, and, so far as she is concerned, for any purposes that he might have seen fit. When he was adjudicated a bankrupt by operation of law, the same title which he held at the date of his adjudication was, upon his appointment and qualification, vested in his trustee. Bankr. Law 1898, § 70. The petition does not represent that the relief which the petitioner desires rests upon a claim which she has against her husband’s estate. She does not. claim by the petition that she has a debt against him, or that she has a claim against him based upon any contract, implied or otherwise, or that she is entitled to a judgment because of any tort or trespass or other thing for which she might ¡recover a judgment at law against him. 'She bases her petition solely upon the provisions of the statute of Arkansas above quoted. By the very terms of that statute, “the wife so granted a divorce against the husband shall be entitled to one third of the husband’s personal property absolutely,” etc. This one-third interest in the personal property of the husband is to be vested by the decree of the court in the wife when the divorce is granted. Prior to the time such decree is entered, the wife has no debt or claim to the property under this statute. It is not a debt, or a claim, or anything that can be reduced to a judgment, prior to the decree of divorce; nor is it contended by the counsel for the petitioner that it is a claim or debt which the wife has against the husband. On the contrary, the supreme court of Arkansas, in Beene v. Beene, 64 Ark. 522, 43 S. W. 969, in construing the statute referred to, have said that:

“The legislature seems to have enacted that statute for the purpose of putting an end to all after controversies as to dower rights, and to settle the matter when a divorce is granted dissolving the marital bond. Hence the allowance to the divorced wife, who is entitled at all, is exactly or substantially the same as would be her dower interest in case of the death of her husband; that is to say, one-third for life of all the real estate of which he had been seised of an estate of inheritance at any time during the marriage, except such as she has relinquished in due form.”

But a wife has no dower rights in the personal property of her husband until after his death; nor has a wife any rights, under this statute, until the decree of 'divorce is rendered in her favor. She, therefore, is not a creditor, within the meaning of the bankrupt law, or otherwise; nor does she acquire any rights under the statute above referred to until after her divorce. But if it were contended that she were a creditor, or that the claim which the statute confers is in the nature of a debt, the contention could not be maintained. By the very terms of the bankrupt law, the word “creditor” “shall include any one who owns a demand or claim provable in bankruptcy.” Bankr. Law 1898, § 1, cl. 9. “Debt shall include any debt, demand or claim provable in bankruptcy.” Id. § 1, cl. 11. “Any person who owns debts, except a corporation, shall be entitled to the benefits of this act as a voluntary bankrupt.” Id. § 4. It is clear that the claim set up in this petition, if it may be called a claim at all, is not one provable in bankruptcy. The precise question presented in this case is necessarily novel, but there are some cases under the old bankrupt law which tend to throw light upon the subject, — among others, the following cases: In re Garrett, Fed. Cas. No. 5,252; In re Cotton, Fed. Cas. No. 3,269.

In the case of In re Foye, Fed. Cas. No. 5,021, Judge Lowell held that:

“The costs of an attachment laid by the wife of the bankrupt in a libel for divorce are not provable in the bankruptcy, and are not an equitable charge against the assets of the assignee.”

. In Beers v. Hanlin, 3 Am. Bankr. Rep. 745, 99 Fed. 695, District Judge Bellinger held that:

“An unliquidated claim is not a provable debt in bankruptcy, and when arising out of a tort must be reduced to a judgment, or, pursuant to the application to the court, be liquidated as the court may direct, in order to be approved. Where, therefore, the only alleged creditor is one who had an unliq-uidated claim for tort, unreduced to judgment at the time of an alleged preferential transfer, she is not a ‘creditor’ who can insist that such transfer is an act of bankruptcy.”

In that case the editor of the American Bankruptcy Reports, in a footnote, states that the claimant seems to have no standing in court from any point of view; and so it seems to me in this case that the petitioner, having no claim provable in bankruptcy, never having had any right in the personal property, the proceeds of which is in controversy, at any time, which she could assert as against her husband before his bankruptcy, or against his trustee, in whom it was vested after his bankruptcy, can have no standing either in the bankrupt court or in a court of equity, from, any point of view.

As to whether or not the bankrupt in this case, when discharged, will be relieved from any decree which the state court may render in the divorce case, this court is not called upon to determine;. and what sort of a decree the state court may render with reference to the bankrupt’s real estate now vested in his trustee this court does not undertake to decide. The only question it decides at this time is that, assuming all the facts stated in the petition to be true, the petitioner has no standing in this court from any point of view.