Hesseltine v. Prince

LOWELL, District Judge. This was a bill in equity filed in the district court, under the provisions of the bankrupt law, to reach the interest of a husband, after the birth of issue, in the real estate of which his wife is seised; the wife being still alive. The defendant raised no objection to the jurisdiction of the court or to the form of proceeding, but demurred to the bill for want of equity. It is necessary, therefore, to determine if the right of the husband, whether it be properly described as tenancy by the curtesy initiate, or otherwise, passes to the trustee in bankruptcy, under the present law. The rights of the husband in the property of his wife are limited by the statutes of Massachusetts, and this court is governed by the interpretation put upon those statutes by the supreme court of the commonwealth. In Lynde v. McGregor, 18 Allen, 182, 184, it was said by Mr. Justice Gray that “these statutes are inconsistent with the hypothesis that the husband has a.ny estate in his wife’s land which he can convey separately during' her lifetime, or which will pass to his assignees in insolvency.” The insolvent law of Massachusetts (Gen. St. c. 118, § 44) vested in the assignee in insolvency all the property of the debtor which the latter could have lawfully sold, assigned, or conveyed. This language is as broad as that of section-70(5) of the bankrupt act, and hence it must be taken that the husband’s right in his wife’s real estate above described does not pass to the trustee in bankruptcy. See, also, Walsh v. Young, 110 Mass. 396, 399. Section 70(3) was 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.