'soo
95 FEDERAL REPORTER.
pensationfor the defendants' services, aggregate $1,579.39. '.this Slim, the C9mmittee charged proportionally upon the 91 bonds deposited under the agreement of November, 1894, thus reaching a charge of each bond. The apportionment is made upon the theory that too work done before November, 1894, was useful to the bonds deposited under the agreement of that date, and, indeed, was so necesllary, that, jf it had not been previously done, it would have certainly fallen upon the subscribers to that agreement. There ib some force in, this argument, but, after full consideration, I am not able to adopt it. What might have been necessary is after all speculative, and I think it is the safest course to 'lay upon the parties to each agreement no more than the expenses incurred under that particular contract. They authorized no other outlay, and there is nothing to support the charge against them of expenses previously incurred, except the implied ratification that may be inferred from the supposed benefit which they may have derived from such expenses. Under the fact.s in proof, this benefit is so uncertain that .1 do not feel justified in deciding that the defendants' apportionment is correct. The $3,000 paid to the defendants under the agreement with the Southern Railway Company was for expenses and services after June 8th, and is therefore not to be taken into account. The result is that the plaintiff has been overcharged as follows: Total expenses to May 29, 1895, per account Less expenses under agreement or June,
1893.................... 1,646 59
$5,179 39
under agreement of November, 1894............... $3,532 80
-Or $38.82 upon each of the 91 bonds deposited under that agreement,making the plaintiff's share of the expenses $388.20. He was therefore entitled to have refunded in cash $611.80, instead of the $430.80 that he has already received. For the balance ($181), with interest from October 3, 1895, he is entitled to a decree, with costs of suit. In re HEYMAN.
(DIstrict Court, S. D. New York. July 25, 1899.) BANJl:RUPToY-:-PROOF OF DEBTs-RronTs OF BANKRUPT'S SURETY.
, Under Bankruptcy Act 1898, § 57, subd. 1, where a creditor has recelveG partial payment or his debt rrom a surety of the bankrupt, the right to prove the claim, for its entire amount, against the estate In bankruptcy, 1. In the creditor, in preference to the surety.
In BaIlkruptcy. On review of decision of referee in bankruptcy. Meyer & Josephson, for surety. Lyon & Smith, for proving creditor. THOMAS, District Judge. The question for decision is whether a surety may discharge a part of a debt due from a bankrupt, and be at once subrogated pro tanto to the rights of the creditor, prove his claim against the estate. Section 57, sUbd. i, provides;
IN BE HEYMAN.
801
"Whenever a creditor, whose claw against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person lllay do so in the creditor's name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights o·f the creditor."
Rev. St. § 5070 (Bankruptcy Act 1867, § 19), provides as follows: "Any person liable as bail, surety, guarantor, or otherwise for the bankrupt, who shall have paid the debt, or any part thereof, in discharge of the whole, shall be entitled to prove such debt or to stand in the place of the creditor if the creditor has proved the same, although such payments shall have been made after the proceedings in bankruptcy were commenced. And any person so liable for the bankrupt, and who has not paid the whole of such debt, but is stilI liable for the same or any part thereof, may, if the creditor fails or omits to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the general orders, and subject to such regulations and limitations as may be established by such general orders."
Section 57 of the act of 1898 states that the surety may prove the claim in the name of the creditor in case the latter do not make such proof, and enables the surety, in case he discharge the debt in whole or in part, to be subrogated to the rights of the creditor. The construction would be permissible that the surety is subrogated to the rights of the creditor to the extent to which he has paid the debt, but, if he has paid nothing, he must await the action of the creditor; and, itl default of such action, the surety may act for the creditor in the matter of proving the claim. The construction placed upon section 19 of the act of 1867 leads to a contrary conclusion. That section states in terms that the surety who has discharged the debt in whole or in part shall be entitled to prove the debt, or, if the creditor has proved it, to stand in his place. That section further states that, if the surety has not paid the whole of the debt, but is still liable for the same, or any part thereof, he may, if the creditor omits to prove the debt, prove the same, either in the name of the creditor or otherwise, as may be provided, etc. These two sentences of section 5070, Rev. St., on certain state of facts might not entirely accord, but it is considered that the section is the full equivalent, and no more than an equivalent, of subdivision i of section 57 of the act of 1898. In such case it seems suitable to follow the interpretation placed upon section 5070, Rev. St. From the decisions relating to the former act, it appears that the creditor is entitled to prove his full claim in preference to a surety, who has discharged a part of his indebtedness. The authorities tending to establish this holding are: In re Ellerhorst, 5 N. B. R. 144, Fed. Cas. No. 4,381; In re Hollister, 3 Fed. 452; Stewart v. Armstrong, 56 Fed. 171; In re Souther, 2 Low. 322, Fed. Cas. No. 13,184; Bank v. Pierce, 137 N. Y. 444, 33 N. E. 557. See Downing v. Bank, 11 N. B. R. 372, Fed. Cas. No. 4,046. The motion to set aside the order of the referee is denied. 95 F.-51
802
95
REPORTER.
HESSELTINE v. PRINCE et al. (District Court, D. :M:a,ssachusetts. July 6, 1899.) No. 1,011. 1.
, In Massachusetts, under the statutes state,ahusband's interest in, the real estate of hiswite, during her lifetime and, after issue born, Is not property which he could oonvey or, assign, and consequently it will not pass to his trustee In bankruptcy as assets. of his estate. , A husband's interest in hlswife'Ei real estate during, her life is not a Within the meaning of Bankruptcy Act 1898, §' 7-0(3), vesting in a bankl'Upt's trustee "powers 'which he might have exer.cised for his own benefit."
VESTIN'G IN TRUS'fEE-EsTATE :BY CURTESY.
2. SAME"""POWERS.
On demurrer to a,.l)ill in' equity filed by the comas trustee in baIikl'tiptcy, to ,reach d:rtain property alleged to be lls'sets of estate ' & fOf, . ,J Prince, .o.efenda,.nts. i, . . . · ,
In
i
"
·
. ,was a bill inequity filed in the dlstqctcourt, under tp.,e p)'ovisions of thf .ban,\{rupt law, to, reach the a,husbl"lJ.d,. after the birth ofissue, in, the rea1 estate of, his,wife is seised; tile ,wife, being l'ltiUalb:e.,The defendant objectiontothe, ofth-e court; or to the form of procee.ding, the: bill, for, w::I,nt, of equity. It is uecessary,therefore, tq. determilll? if therigh.tqf the husband, whethW' as tenancy the,curtesy initiate, Ot' oth,erwise, passes to the pilnkruptcy, under the present li.!-w.'j'herights of t4e husband in the. property of his wife are liInlted by the statutes and this court is governed by tp.e interpretation Plltupon those statutes by the supreme court of the commonwealth. In Lynde v. ,¥cGregor, Allen, 182, 184, it was, saidbs Mr. Justice flray that,:','tllese statptes are inconsistent with the that husband has any estate in his wife's land whic:ll; he can cOllvey separately during her lifetime, or which will pass to his assignees in .insolvency." The insolvent law of St. c,,118, § 44) vestetl in the in insolyency all the property of. the debtpr which the latter could have lawfully sQld, assigJ;led, or conveyed. .This language is as broad as that of 70(5) of the bankruptact, and hence it must be taken that the husband's right in his wife's real estate above described does not pass the trustee in bankruptcy, See, also, Walsh v. Young, 110 Mass. 396 j 399. Section 70(3) wits relied upon in argument by counsel for the trustee; but, however the husband's right in his wife's real estate should be described, it certainly is not a power. Demurrer sustained, and bill dismissed. with costs against the estate.