Krumbaar v. Burt , 2 Wash. C. C. 406 ( 1809 )

WASHINGTON, Circuit'Justice.

The cases quoted by Mr. Chauncey abundantly prove that a possibility, whether belonging to the husband or wife, would not pass to the assignees of the husband becoming bankrupt, if it were not for the strong expressions used in the English statutes of bankruptcy. The husband may extinguish his wife’s choses in action by a release, and he may, in equity, assign away a possibility, to which she is entitled; so far as that, a court of equity will compel a specific performance when the right vests, provided the assignment was made for a valuable consideration. But this, which is called an assignment, is nothing more than a covenant, and passes nothing at law. If, however, a specific execution of the agreement may be enforced in equity, then the bankrupt may part with it, which brings the case within the statute of 13 Eliz., and more strongly within the words of the 5 Geo. III. But this possibility forms no part of the estate of the bankrupt, to which he is entitled in law or equity, of which the commissioners can take possession, under the fifth section of the bankrupt law of the United States, nor, consequently, such as they could transfer to the assignees under the sixth section: nor is it a debt due to the bankrupt, so as to come within the provisions of the thirteenth section nor did the estate vest in the bankrupt, previous to his certificate, so as to be embraced by the fiftieth section: nor, finally, is it a debt, duty, or demand, within the fifty-sixth section, upon which the assignees could, at any time before the certificate, have instituted a suit. Why the legislature of the United States, with the English statutes in their view, did not think proper to include contingent interests of this kind, in the assignment of the bankrupt’s effects, it is impossible for this court to say; but it is most clear, that by no construction of the law, however liberal, can this interest of the husband be decided to pass to the assignees. Judgment must therefore be for the plaintiff’.

Mr. Rawle, after the opinion was given, mentioned the eighteenth section of the bankrupt law, which had escaped his attention at the argument But THE COURT, after argument, determined that this section related only to a discovery by the bankrupt, and rather seemed confined to dispositions which he had made; but, at all events, it was a proper provision, and did not imply that all the interest which might be disclosed, was therefore to be assigned; for. as possibilities and contingent interests might fall in between the commission of bankruptcy and the certificate to which the assignees would undoubtedly be entitled, it was very proper that a full disclosure should be made of expected and contingent, as well as of vested rights. But this section does not. require an assignment of such rights, while they are contingent.