IN BE M'KENNA.
service. It. is not claimed that section 5438 applies to the purchase of clothing from them; nor do I think that the clothing issued to them is used in the military service of the United States. Congress could probably prohibit the purchase of clothing from these inmates, and punish anyone applying it to other purposes than that for which it is issued; but the law in force does not apply to it, and the demurrer must be sustained.
HUSBAND AND WIFE CoNSTRUCTION.
(DiBfIrict Oourt, W. D. Tennessee. September 30, 1881.)
SETTLEMENT ON THE WIFE -
It is a general principle, established by the authorities, that whenever a settlement is made upon a married woman by will, deed, or other conveyance, or by statute, the husband's interests are unaffected, further than the terms of the instrument or statute, either directly or by necessary implication, require; and it is well-settled that neither exclusion during the life of the wife from the rents and profits, restrictions upon his powers of alienation, or the grant to her of powers of alienation, act to destroy his interest after her death, unless the settlement explicitly does so by appropriate terms, or by the exercise of the powers conferred his interest is defeated during her life. . 2. 8ll1B SUBJECT-BANKRUPTcy-TENANOY BY THE CuRTESy-TENNESSEE CoDB, H 2481, 2482-PBOPERTY EXEMPT-REv. ST. § 5045-AssIGNEE'S TITLE-liUBSEQUENTLY-AcQUIRED PROPERTY.
A state statute provided that the interest of a husband in the Teal estate of his wife should not, during her life, be sold or disposed of by virtue of any judgment, decree, or execution against him, nor should the husband and wife be ejected or dispossessed of the real estate of the wife by virtue of any such judgment, sentence, or decree, nor should the husband sell his wife's real estate during her life without her joining in the conveyance in the manner prescribed by law in which married women shall convey lands. The wife was seized of lands when the husband became bankrupt, there being issue of the marriage. Held, that the tenancy by the curtesy initiate passed to the assignee in bankruptcy, subject to the statutory right of the husband and wife to continue to hold the land during her life. lield, also, that this state statute and the bankruptcy act did not exempt from the operation of the bankruptcy the whole tenancy by the curtesy for the life of the'husband, but only so much as was measured by the life of the wife, and that on her death, pending the bankruptcy proceedings, the assignee was entitled to take the land for the remainder of the husband's life. Held, further, that there is nothing in the character of the estate of the husband in his wife's lands at common law, nor as modified by this statute, to prevent its passing to the assignee, subject to the statutory exemption during the wife's life, and that neither at commou law nor under the statute was it property acquired by the death of the wife subsequently to the bankruptcy.
A summary petition by the assignee to recover possession of land withheld by the bankrupt is the proper relllelly, and a plenary suit is not necessary; nor are the children of the bankrupt and his wife, who are entitled to the reversion a tenancy by the curtesy ceases, necessary parties to a petition by the assignee to recover that estate from the bankrupt.
4. REPEAL OF THE BANKRUPTOY LAWS-PROVISO-JURIsDIOTION.
The proviso to the act of congress of June 7, 1878, c. HiO, (20 St. 99,) makes ample provision for continuing the jurisdiction of the court over pending cases.
Petition by the assignee in bankruptcy stating that, at the date of the petition in bankruptcy, the wife of the bankrupt was the owner of certain lands of which she and the bankrupt were then in possessian; that children were born of the marriage, and pending the proceedings in bankruptcy the wife had died; that the bankrupt had not put into his schedule his interest in this land, and was now in possession, claiming his life estate by the curtesy, and in enjoyment of the rents and profits. The prayer of the petition is that the ba'nk. rupt be required to deliver possession to the assignee; that the interest of the bankrnpt be sold; for a. receiver; and general relief. The bankrupt moved to dismiss the petition because(1) The children of the deceased wife were not made parties, and this court cannot proceed against them by petition; (2) the court cannot entertain jurisdiction since the repeal of the act to establish a uniform system of bankruptcy; (3) a summary petition is not the proper remedy; (4) on the facts stated in the petition the assignee is not entitled to recover.
The petition in bankruptcy was filed August 29,1878; the wife died September 18, 1878; and the adjudication and assignment by the register were on November 1, 1878. The Code of Tennessee enacts as follows:
"Sec. 2481. The interest of a hushancl in the real estate of his wife, acquired by her either before or after Iilarriage by gift, devise, descent, or in any other mode, shall not be sold or disposed of by viltue of any judgment, decree, or execution against him; nor shall the husband and wife be ejected from or dispossessed of such real estate of the wife by virtue of any such judgment, sentence, or decree; nor shall the husband sell his wife's reai estate during her life without her joining in the conveyance in the manuel' prescribed by law in which married women shall convey lands. "Sec. 2482. 'rhis exemption of the husband's interest in his wife's lands from sale shall not extend beyond his wife's life." T. & S. Code, §§ 2481, 2482.
W. M. Randolph, (Robt. M. Heath with him,) for motion.
Metcalf d'; Walker, contra·.
IN RE M'KENNA.
HAMMOND, D. J. The proviso to the act repealing the bankruptcy laws makes ample provision for continuing the jurisdiction of the cases pending at the time of the repeal; and there is court over no force in the objection that the court lias no jurisdiction "since the repeal of the act to establish a uniform system of bankruptcy." Act June 7, 1878, c. 160, (20 St. 99;) Re Richardson, 2 Story, 571; Re Ankrim, 8 McL. 285; Carr v. Hilton, 1 Curt. 231; Re King, 3 FED. REP. 839; Re Hyde, 6 FED. REP. 587. That a petition like that filed in this cause is the proper remedy for the assignee, and not a plenary suit by bill or an action at law, seems well established by the authorities. Re How, 18 N. B. R. 565; Re Ettinger, ld. 222; Re Ketchum, 1 FED. REP. 840; Re Nichols, ld. 842; Re Moses, ld. 845; Re Campbell, 17 N. B. R. 4; Re Swearinger, ld. 138; Re Peltasohn, 16 N. B. R. 265; S. C. 4 Dill. 107; Re Benson, 16 N. B. R. 377; Re Betts, 15 N. B. R. 537; Re Boothroyd, ld. 368; Re Thompson, 13 N. B. R. 300; Re Wright, 8 N. B. R. 430; Be SpeMer, 6 N. B. R. 255; Re Kempner, ld. 521; Re Pierce, 7 Biss. 426; Re Smith, 2 Hughes, 307. Whether the estate that the bankrupt had in the land of his wife at the date of the filing of his petition in bankruptcy passed to his assignee depends upon a prDper construction ,of the Tennessee statute. T. & S. Code, §§ 2481, 2482. At common law he was, on ,that date, a tenant by the curtesy initiate, al).d about the character of that precise estate there has been much conflict in the books, and mnch confusion. I dQ not, ftom authorities consulted, find that it has been ever settled or agreed upon whether the husband, before or after issue born, is in possession of his estate by virtue of this tenancy, or that which he has by virtue of the marriage, considered irrespectivelyof the birth of issue, or the possibility of such birth. Often it is unimportant whether he is in by the one or the other, but in the conflicts that arise over marriage settlements, grants to the wife by deed or will, the statute of limitations, dissolutions of the coverture by divorce, and the effect of conveyances by the husband and the wife, one or both, the nature of this tenancy by the curtesy initiate has been freely discussed, but in some respects remains unsettled. Too much force is sometimes given to the death of the wife, and even to the birth of issue, when either is thought to originate this estate by the curtesy, and it is sometimes said, as it is argued in this case, that prior to the death of the wife it is a possibility only,-something like the spes successionis of the heir apparent or presumptive to an estate, that does not pass to a voluntary assignee, or to an involun-
tary assignee, by operation of law. This is not true of the estate at any period from the moment of marriage and seizin of the wife down estate; if issue be born, by her death. to the consummation of Whether, before seizin by the wife, husband's possible curtesy in lands belonging to the wife would be assignable, in law or in equity, by treating the conveyance as a covenant to assign, or not, certainly, from the very moment of such seizin, he becomes a tenant by the curtesy, and that is undoubtedly the initial point at which this estate in the particular land vests in him, no matter whether it originates in the seizin or the marriage relation. And from that moment, although he may be in possession by virtue of the marital right, or jure uxoris, as it is sometimes calied, he is also in possession by virtue of this estate by the curtesy, if the two be separable at all. Some of the authorities say he is in by both by a kind of remitter, and possibly they may in some sense be said to unite or merge into each other, though neither will destroy or absorb the other. But, whatever the distinctions may be in this regard, and however for all purposes this matter may be determined, for the purpose of giving effect to his conveyances, and for the purpose of being subjected to his debts, it is vested in him whenever the necessary seizin of the wife occurs. If he convey, or it be assigned by operation of law after seizin, even before issue born, the estate by the curtesy passes, and his assignee holds, as he held it, subject to be devested by the failure of issue occurring by the death of the wife without having given birth to a child born alive; or, whether issue be born or not, by the death of the husband terminating the estate in the life-time of the wife; and in some peculiar circumstances, perhaps, by other events. The mistake is often made of supposing that the survivorship of the wife defeats the tenancy by the curtesy. Her survival has no such effect. His death terminates his life estate necessarily, whether it occurs before or after that of the wife. But it does not follow that this defeasible and determinable character of the estate reduces it to a bare possibility, or makes it an estate called into being by the happening of a contingency-either that of the birth of issue or the death of the wife in the life-time of the husband. The husband has, at best, only a life estate, and of course his death ends it, whether it happens before or after the death of the wife; and what the books mean by saying that her death consummates this tenancy by the curtesy is that from that time on there is no marital relation furnishing him any other right to possession or ownership of her lands than that which he has derived through this curtesy of the law. The death of the wife neither originates nor