Page:Federal Reporter, 1st Series, Volume 9.djvu/48

IN BE m'kENNA, S3 �penned," (Re Marsh, 1 Atk. 158,) when the creditors only took "all such interest in lands as the bankrupt may lawfully depart with- all," — Comegys v. Vasse, 1 Pet. (original edition,) 200, — it was at first determined that only such interests as were alienable at law passed to the assignee, but afterwards it was held that such as were assign- able in equity also passed; and possibilities coupled with an interest came to be regarded as assignable. Our bankruptoy aot was in- tended to relieve us of all this trouble by using the most comprehen- sive terms, and there oan be no doubt that every character of property belonging to the bankrupt himself passes. Bars possibilities — such, for instance, as the hope that oue has that his father or other rela- tive ynU. die intestate, leaving him an inheritaiice — do not pass ; but I cannot see that the tenancy by the curtesy, either at common law or nnder this statute, is of that character. �It is also argued, in support of the position that this estate of the husband did not pass, that "the assignee in bankruptoy does not take the •whole legal title as heirs and executors do, but only such estate as the bankrupt has a beneficiai interest in;" and this is true. If he has not a beneficiai interest in a tenancy by the curtesy initiate, it is difficult to see why he has not. He has not so great benefit under the statute as he had at common law, for there are restrictions on his powers of alienation and restrictions on the right of his creditors to subject his interest to their debts; but in neither respect has his interest been wholly demolished, and the assignee only claims by this petition that beneficiai interest which the statute left to him. This above-quoted formula is often found in the author- ities, but I do not find that it has ever been applied to save to the bankrupt any property that belonged to him, but only such as belonged to third persons and which was held by him under some kind of trust relation. In the earlier stages of bankruptoy legislation, when the statutes were not so elaborate as now, it was a principle resorted to and established by the courts to save to third persons their rights in property which the bankrupt held for them, and to prevent the devolution of such trusts on the assignee, who did not become a general administrator of the bankrupt's legal and equitable powers over all property, doing in his stead for others what the bankrupt was required to do, but was restrained in his title to the property of the bankrupt which creditors could apply to their debts. The assignee, for example, takes subject to a wife's right of dower, to ber right of survivorship ; subject to her right to an equitable v.9,no.l— 3 ��� �