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the provision, which imply this, are so in 2. A statement in such return that "it became separably connected with the modifying necessary to sell the whole amount of the real clause attempting to create a trust as to ren

estate," without any statement of facts show

ing such necessity, is a statement of the treasder the whole provision void for remoteness. urer's opinion only, and is not sufficient to sus

The creation of a trust which cannot vest tain a title under such sale. the object of the trust within the time limited

3. An assignment under the insolvent law

(Rev. St. c. 70, $ 33) does not require a seal. by law will be nugatory. 1 Perry on Trusts,

4. In a real action, where no rents or profits 383; Blagrave v. Hancock, 16 Sim. 371; are sued for, no allowance can be made for Dodd v. Wake, 8 Sim. 615; Sears v. Russell, taxes paid by the defendant. 8 Gray, 86; Brattle Square Church v. Grant,

(Official.) 3 Gray, 142, 63 Am. Dec. 725; Pulitzer v. Report from Supreme Judicial Court, OxLivingston, '89 Me. 359, 36 Atl. 635; Brooks ford County. v. Belfast, 90 Me. 318, 38 Atl. 222. See Slade Action by Charles R. Milliken against John v. Patten, 68 Me. 380.

Houghton. Case reported. Judgment for The trust fund is not separable, and might plaintiff. vest too remotely in the heirs of a child of

Real action to recover possession of Lot 8, William M. Towle born after the death of

range 12, in the town of Byron, Oxford coun. the testator.

ty, known as the "Hiram Gilcreasse Farm." If two constructions may be put upon a

The defendant relied on a tax title. provision in a will, one of which will violate

The parties agreed that, if the court find an inflexible rule of law and the other not,

the title to be in the plaintiff, the court may the construction which will not offend the

also determine whether the defendant had rule is to be adopted by the court. 1 Perry

any right to be reimbursed for taxes paid by on Trusts, 381; Martelli v. Holloway, L. R.

him and interest thereon. 5 H. L. 532

Argued before WISWELL, C. J., and EMIt will be observed that the testator uses

ERY, WHITEHOUSE, STROUT, SAVAGE, the words "and his heirs" technically in

and POWERS, JJ. reference to other devises in this will, and he is presumed to employ them in their le E. Foster and 0. H. Hersey, for plaintiff. gal sense unless the context clearly indicates G. D. Bisbee and R. T. Parker, for defendthe contrary. 3 Jar. on Wills, 707.

ant. It must be held that William M. Towle took a remainder in fee. This is the legiti. EMERY, J. The defendant's claim of title mate effect of the language used in the first rests solely on a tax sale and deed by the section of the provision under consideration, treasurer of the town of Byron for nonpayand even the intent of the testator to re ment of a town tax assessed in 1885 to the strict it by a trust must yield to the rule then nonresident owner. The statutes (Rev. against perpetuities. 1 Jar. on Wills, 293, St. 1883, c. 6, SS 188, 189) were then in force. 295, 296; Gray on Per. $$ 233, 235, 240; De It was explicitly declared by the court in ford v. Deford, 36 Md. 168; Sears v. Putnam, construing that statute in Ladd v. Dickey, 102 Mass. 5. The trust is therefore invalid. 84 Me. 190, 24 Atl. 813, at the bottom of

We answer the prayer of the complainant, page 194, 84 Me., page 814, 24 Atl., that to in behalf of all parties interested, that the show a valid salu "it should appear that he proportion of the estate in which William M. exposed for sale and sought offers for a Towle was interested, and which came at fractional part of said premises sufficient the death of Lucinda L. Towle into the hands to pay the tax and legal charges, and that he of the complainant as executor, vested abso- could obtain no bid therefor. It is not suffi. lutely in William M. Towle and belongs to cient for him to say that it was necessary his estate.

to sell the whole amount so assessed and The expenses of this suit should be paid advertised, no person offering to pay the tax out of the property involved in this decision. and legal charges for a smaller fractional Decree accordingly.

part of said real estate. It must appear that he tried to obtain an offer for the pay.

ment of the tax and legal charges for a frac(97 Me. 447)

tional part of the premises without success." MILLIKEN V. HOUGHTON.

The treasurer sold the whole tract, but

we nowhere find, either in the recitals in the (Supreme Judicial Court of Maine. April 14,

tax deed, or in the treasurer's return of his 1903.)

doings, or anywhere else, the evidence that TAX TITLE-SALE-RETURN BY TOWN TREAS

the treasurer "sought offers for a fractional URER-INSOLVENCY-ASSIGNMENT -REAL ACTION.

part,” or “tried to obtain an offer for the 1. In making return of his doings in selling

payment of the tax and legal charges for a land of a nonresident for nonpayment of town fractional part of the premises without suctaxes, the town treasurer should state facts cess.” The most the treasurer says is that showing that no bid could be obtained for less than the whole land, and that it was necessary

"it became necessary to sell the whole to sell the whole land in order to obtain the amount of the real estate so assessed and amount of the tax and costs.

advertised, as no person would pay the tax

es, interest, and legal charges for a less to her husband. Shortly after that he as. amount of said real estate." This is merely signed to his daughter all his right to the sun. a statement of the treasurer's opinion, viz.,

insured "in event of death," if she survived

him, but did uot assign the endowment if he that he thought no person would pay the survived 20 years. His trustee in bankruptcy taxes, etc., for a less amount, and that, there. sought by bill in equity against the bankrupt fore, he thought it was necessary to sell the

and the daughter to hold this policy, or its sur. whole amount. The fact might have been

render value at the date of bankruptcy, March

8, 1901. different. Had he "sought offers for a frac Held, that by the laws of Maine (Rev. St. C. tional part" or "tried to obtain an offer" 49, § 94; Id. c. 75, $ 10) this insurance is extherefor, as the court said in Ladd v. Dickey,

empt from the claims of creditors; also by the bankrupt act of 1898.

2. been successful. Had he done so, and with in section 6, 30 Stat. 548, c. 541 (U. S. Comp. out success, and so stated in his return, it St. 1901, p. 3424), that the "act shall not affect would then have been apparent to the court

the allowance to bankrupts of the exemptions

which are prescribed by the state laws." Aud that it was necessary to sell the whole tract.

section 70 of the bankrupt act, 30 Stat. 565 As it is, the necessity does not appear, and [U. S. Comp. St. 1901, p. 3451), provides that we must therefore hold the sale, being of the

the trustee of the bankrupt shall “be vested

by operation of law with the title of the bankwhole tract, to be invalid.


except in so far as it is to The plaintiff shows a prima facie title by property which is exempt," to various enumera chain of deeds from a former acknowl ated kinds of property, and to "property which edged owner. The only objection seriously prior to the filing of the petition he could hy

any means have transferred, or which might made to his prima facie title is that, where

have been levied upon and sold under judicial it passed through the insolvency court, nei process against him.” Heid, that this clause ther the seal of the court nor of the judge must be construed in the light of the terms in was affixed to the instrument of assignment

the earlier part of the same section which ex

cepts exempted property. Any other construcby which the judge assigned and conveyed tion would annihilate all the exemptions spethe insolvent's property to the assignees in cially provided for in the act. the case. The statute (Rev. St. 1883, c. 70, 3. By another subsequent provision in section § 33) then in force did not require any seal.

70 of the bankrupt act of July 1, 1898, 30 Stat.

563, c. 541 [U. Š. Comp. St. 1901, p. 3451), it "An instrument under his hand" was all that

is declared: "Provided, that when any, bankwas required. After considering all the ob rupt shall have any insurance policy which has jections suggested, we are satisfied the plain

a cash surrender value, payable to himself, his tiff has sufficient title to maintain this ac

estate or personal representatives, he may with

in thirty days after the cash surrender value tion.

has been ascertained and stated to the trustee By the terms of the report, if the court by the company issuing the policy, pay or sefind the title is in the plaintiff, it is to deter

cure to the trustee the sum so ascertained and mine whether the defendant has any right

stated, and continue to hold, own and carry

such policy free from the claims of the credto be reimbursed for taxes paid and interest itors participating in the distribution of his eson same. This is an action at law, a real tate under the bankruptcy proceedings, otheraction, in which no rents and profits are

wise the policy shall pass to the trustee as as

sets." Held, that this proviso, instead of enclaimed, and, as the case is now presented,

larging the rights to property in the trustee, no right of reimbursement is shown by the qualifies and limits them. But for it, in states defendant. He is, and presumably has been,

where life policies are not exempted, and po in possession, taking the rents and profits, if

beneficiary is named, the entire interest in the

insurance would pass to the trustee. The proany. When he is asked to account for these, viso limits the amount to go to the creditors to he may perhaps raise the question of allow the "surrender value" only, reserving to the ance for taxes paid.

bankrupt an interest he would not otherwise

retain. This construction gives effect to the Judgment for the plaintiff for title and

manifest intent of Congress, harmonizes all secpossession and for $1 of damage.

tions of the act, and escapes an otherwise unavoidable conflict between sections 6 and 70, 30 Stat. 548, 565 (U. S. Comp. St. 1901, pp. 3424,

3451). (97 Me. 434)

4. Held, that the assignment to the daughter PULSIFER V. HUSSEY et al. .

“in the event of death" before the endowment

period is not fraudulent as to creditors. The (Supreme Judicial Court of Maine. April 11, assignment to the daughter is not of the whole 1903.)

policy, as it might have been, but only of the

right to the fund if the assured shall die before LIFE INSURANCE-EXEMPTIONS-BANKRUPTCY

the endowment period of 20 years. The right -FRAUDULENT ASSIGNMENT-SUR

thus assigned has no surrender value-that reRENDER VALUE.

mains to the assured for the endowment period 1. At the date of the filing of his petition, -it had no value as to creditors, for it was March 8, 1901, a bankrupt held a policy of in absolutely exempt from their claims under the surance on his life payable to him or his as bankrupt act and the state statute. Even as signs, if he survived 20 years, the date of the his heir the result to the daughter would be the policy being March 1, 1893; but if he died be same, or it could have been accomplished by a fore that time it was payable to his wife if will of the father. she survived him; if not, to his representatives 5. The policy contains this clause: "At the or assigns. In 1900 his wife was divorced from end of the fifth and every subsequent fifth year him, and she assigned her interest in the policy from date of issue the cash value specified in

table of cash surrender values indorsed hereon 1. See Bankruptcy, vol. 6, Cent. Dig. $$ 201, 664. will be paid for this policy, provided it shall

be in furce under its original conditious, and is home office of the insurance company, where legally surrendered thereafter to the home office

it was received and filed August 20, 1900. within thirty days from the close of such pe. riod." The date of the policy was March 1,

The last-named assignment is as follows: 1893. The first surrender period was on March "For One Dollar, in hand paid, and for other 1, 1898, but the policy was not then surren valuable considerations, the receipt and sufdered, and that right to surrender was lost.

ficiency of which are hereby acknowledged, The next period will arrive March 1, 1903, but the bankruptcy occurred March 8, 1901. Held,

the undersigned hereby assign, transfer and that at that date the policy had no surrender set over unto Mrs. Edith G. Gove, daughter, value which the company was bound to recog of Biddeford, Maine, (provided said assignee pize. The surrender value referred to in sec.

be living at the time of the death of the intion 70 of the bankrupt act July 1, 1898. 30 Stat. 565, c. 541 [U. S. Comp. St. 1901, p.

sured), all the right, title, claim, interest, and 3451), refers only to the contract right of sur benefit of the undersigned in and to the prinrender, and not to the result of a negotiation cipal sum insured in event of death by the or act of grace.

Policy of Insurance issued by the Travelers' 6. Section 70 of the bankrupt act of July 1, 1898, 30 St. 565, c. 541 (U. S. Comp. St. 1901,

Insurance Co., of Hartford, Conn., on the life p. 3451), does not include policies payable to a of Charles E. Hussey and numbered 73148. wife or kindred of the assured, but only applies In Testimony Whereof, I have hereunto set to policies payable to the assured or his person

my hand and seal at Biddeford Me. this tenth al representatives.

day of August 1900. Offcial.)

“Charles E. Hussey. [L. S.] Report from Supreme Judicial Court, An "In presence of H. G. Hutchinson. To droscoggin County.

C. E. H." Bill by James A. Pulsifer against Charles

On said August 10, A. D. 1900, the said E. Hussey and another. Heard on report of

Charles E. Hussey was owing a large part agreed statement, and dismissed.

of the debts mentioned in his schedule of

liabilities and filed in court with his petition Bill by the plaintiff trustee in bankruptcy

in bankruptcy. against Charles E. Hussey, bankrupt, and

Said plaintiff demanded of said Charles E. his daughter, seeking to hold a policy of in

Hussey, to wit, on June 6, 1901, said policy surance on the life of the bankrupt, or its

of insurance, and said Charles E. Hussey resurrender value on March 8, 1901; date of

fused to deliver up the same. Said plaintiff policy, March 1, 1893.

thereupon demanded of said Charles E. HusThe parties agreed to report the case to the

sey the equivalent of the cash surrender vallaw court upon bill, answer, and replication,

ue of said insurance policy, and the said and the following agreements and statement

Charles E. Hussey refused to pay the same, of facts.

and has ever since refused and neglected to On December 12, 1899, Lizzie L. Hussey,

either deliver said policy of insurance to the the beneficiary named in the policy and

plaintiff or to pay him the said cash surrenmentioned in the plaintiff's bill, assigned to

der value. the defendant, her husband, Charles E. Hus

By the written terms of said policy, its sey, or his legal representatives or assigns,

cash surrender value was, on March 1, 1898, all her interest in said policy. A copy of $287.50, and will be on March 1, 1903, said assignment was filed with the agent of

$712.50. But while said policy gives the the insurance company, and by him for

right to the insured to surrender his policy warded to the home office of the company, the only during the 30 days immediately succeedTravelers' Insurance Company, where it was

ing each five-year period from its date, and received as filed on December 19, 1899. A

only provides in terms as to what the cash copy of said assignment was annexed to and

surrender value shall be at those periods, it made part of the statement of facts.

is, nevertheless, the custom of said insurance On July 10, 1900, Lizzie L. Hussey, having company to waive the strict and literal conobtained a divorce from her husband, the struction of the clause in its said policy resaid Charles E. Hussey, claiming that she | lating to the cash surrender value of said had not assigned her interest December 12, policy, and allow said policy to be surren1899, executed another assignment of all her dered and canceled at any time, and to pay interest as beneficiary in said policy to the in consideration of such surrender an indefendant Charles E. Hussey, and a copy of creased sum therefor with each full year's the same was forwarded by him to the home premium paid thereon. In other words, unoffice of the insurance company, where it der said custom, the cash surrender value of was received and filed August 7, 1900. A said policy changes on the 1st day of March copy of said assignment was annexed to and of each year during its life, and does not in. made a part of the statement of facts.

crease on account of anything less than a On August 10, 1900, said Charles E. Hus- full year's premium. sey, without receiving any compensation or Under said custom, the cash surrender valuable consideration therefor, gave to his value of said policy was on March 1, 1901, daughter, Edith G. Gove, a defendant in $522.50, and on March 1, 1902, $615. this case, the writing of that date by him Said policy had no cash surrender value to signed, which was forwarded to the same said Edith G. Gove, the full sum being pay.

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able to said Charles E. Hussey at the expira miums paid therefor within three years with tion of 20 years, if he was living. And, in interest, does not constitute a part of his esorder to have a cash surrender value, said tate for payment of debts

when Hussey and said Gove(if said writing of the intestate leaves a widow or issue,” but August 10, 1900, be valid) must release each descends to the widow and issue, or, if no of their interests in said policy.

widow, to the issue. "It may be disposed of Said insurance policy was thereupon filed by will, even if the estate is insolvent.” in court, and became a part of this agreed Charles has a daughter, Mrs. Gove. statement of fact, and together with said By Rev. St. Me. C. 49, $ 94, "life and acciwriting dated August 10, A. D. 1900, there dent policies, and the money due thereon are remains, pending the final decision of the exempt from attachment, and from all claims case, subject to the trial and final disposition of creditors during the life of the insured, of the court according to the rights of the when the annual cash premium paid does not parties as they should be determined.

exceed one hundred and fifty dollars,” etc. The said Charles E. Hussey has paid the

Under these statutes it is beyond question following sums at the time specified, as pre

that if the policy is within them it could not miums upon said policy of insurance, since be reached by creditors under the laws of tbis the date of bis petition in bankruptcy:


By the bankrupt act of July 1, 1898, § 6, 30 Date Payment Date Due. Reported by Agent. Amount.

Stat. 548, c. 541 (U. S. Comp. St. 1901, ‘p. Mar. 1, 1901 Apr. 23, 1901

$30 85

3424), it is provided that “this act shall not June 1, 1901 Aug. 28, 1901

30 85 affect the allowance to bankrupts of the ex. Sept. 1, 1901 Nov. 27, 1901

30 85

emptions which are prescribed by the state Dec. 1, 1901 Jan. 21, 1902

30 85 Mar. 1, 1902 May 29, 1902

30 85

laws in force at the time of the filing of the June 1, 1902 July 31, 1902

30 85 petition in the state wherever they bave had

their domicile for the six months or the great. Argued before WISWELL, C. J., and

er portion thereof immediately preceding the WHITEHOUSE, STROUT. SAVAGE, PEA

filing of the petition.” This provision perBODY, and SPEAR, JJ.

vades and qualifies the whole act, and is to H. W. Oakes, J. A. Pulsifer, and F. E. be read into all its subsequent language. It Ludden, for plaintiff. Geo. F. & Leroy Ha is equivalent to saying that, whatever gen. ley, for defendants.

eral expressions may appear in other parts of the statute, they must all be taken subject

to this unqualified expression. STROUT, J. The defendant Hussey was

By section 70, 30 Stat. 565 (U. S. Comp. St. decreed bankrupt on March 8, 1901. March

1901, p. 3451), of the same act, it is provided 1, 1893, he obtained a policy of insurance up

that the trustee of the bankrupt shall "be on his life, which was in force when he be

vested by operation of law with the title of came bankrupt and is still in force. His

the bankrupt

except in so far as it wife, Lizzie L. Hussey, was the beneficiary

is to property which is exempt," to various named in it. By its terms the amount insur

enumerated kinds of property, and, fifth, to ed was to be paid to Charles E. Hussey, or "property which prior to the filing of the petihis assigns if he survived 20 years, or, if he tion he could by any means have transferred, survived his wife, then to his legal representa or which might have been levied upon and tives or assigns. But if he did not survive sold under judicial process against him." If 20 years, and his wife survived him, then this clause 5 should be given literal effect, it the amount was payable to her. It also con would destroy all exemptions specially protained provision for surrender at certain times vided for in section 6 of the act. It must be according to the "cash surrender values" in

construed in the light of the term in the earl'. dorsed thereon. Lizzie L. Hussey was di er part of the same section, which excepts vorced from her husband, and afterwards, on exempted property, manifestly referring to July 10, 1900, executed an assignment of all the exemption in section 6. her interest in the policy to her former hus. This construction barmonizes section 6 and band, Charles. August 10, 1900, Charles as

that part of section 70 with the evident legis. signed to his daughter, Edith G. Gove, one of lative intention. There immediately follows the defendants, provided she be living at the in section 70 the language: "Provided, that time of his death, all his right to the sum in when any bankrupt shall have any insurance sured “in event of death," but not assigning policy which has a cash surrender value pay. the endowment to her if he survived 20 years. able to himself, his estate or personal repre

Plaintiff, as trustee in bankruptcy of sentatives, he may within thirty days after Charles, claims to hold this policy, or its sur the cash surrender value has been ascertained render value at the date of bankruptcy. and stated to the trustee by the company issu. Whether it is to be regarded as assets in the ing the policy, pay or secure to the trustee the hands of the plaintiff is the question pre sum so ascertained and stated, and continue sented.

to hold, own and carry such policy free from By Rev. St. Me. c. 75, $ 10, “money received the claims of the creditors participating in the for insurance on his life, deducting the pre distribution of his estate under the bankrupt.

cy proceeding, otherwise the policy shall pass , guage of the first part of section 70, or the to the trustee as assets."

imperative language of section 6. Section The policy in this case had a surrender 70, in defining the property passing to the value to Charles at each successive five years trustee, says the title of the bankrupt passes after its date. The plaintiff claims under to the trustee, "except so far as it is to the recited proviso.

property which is exempt" (which exempArbitrary rules for the construction of stat tion is defined in section 6) to all the then utes afford slender aid in their consideration, | following enumerated species of property. and not infrequently mislead. To so construe The opinion also treats the proviso as to inthe different provisions of a statute so as to surance policies, as an independent, positive, produce a harmonious whole, in accord with and controlling enactment, unaffected by the the apparent legislative intent, is the object exception which applies to all the after enaimed at, and to be accomplished, if it can umerated property. This case, and that of be done consistently with its terms, although Steele (D. C.) 98 Fed. 78, were reversed by detached sentences or paragraphs may indi the Circuit Court in Steele v. Buel, 44 C. C. cate a different view.

A. 287, 104 Fed. 968. In Re Boardman (D. In this statute, in section 6, there is ex- c.) 103 Fed. 783, the policy was an endowpressly exempted from the operation of the ment one. The case arose on petition of the act the exemptions given by the state. Later bankrupt for an order upon the trustee who in section 70, which defines the property pass had possession of the policy to deliver it to ing to the trustee, it is prefaced with the him. In denying the petition upon the statement, "except in so far as it is to prop ground that the trustee had some interest in erty which is exempt," and then follows, in the policy, the District Judge cited with apthe same section, all subject to the exemption, proval Diack's Case (D. C.) 100 Fed. 770. In the property which he might have conveyed, that case the policy was an endowment, payand the provisions as to life policies.


able to the assured if he survived 15 years, reading the section, the intention appears to "or, should he die before, then to his wife, if be clear that all its terms apply only to prop- living; if not, then to" the insured's personal erty not exempt by the state laws.

representatives. For some years Mrs. Diack Instead of enlarging the rights to property paid the premiums, and it was held that “as in the trustee, this proviso further qualifies the trustee cannot require Mrs. Diack either and limits them. But for it, in states where to accept a paid-up policy, or to suffer the life policies are not exempted, and no bene policy to lapse and thus obtain immediate ticiary is named, the entire interest in the in payment of the surrender value, the bankrupt surance would pass to the trustee. But the should be required, unless Mrs. Diack shall proviso limits the amount to go to the cred elect to surrender, to execute an assignment itors to the "surrender value," reserving to to the trustee of his interest in the surrenthe bankrupt an interest he would not other der value of the policy, which "should be wise retain. The proviso is in the interest made payable out of the proceeds of the polof the bankrupt, and not in that of his credit. | icy when it matures, or whenever sooner ors; for whether payable to his estate at paid.” The case does not discuss the condeath, or as an endowment to the insured aft struction of the bankrupt act which is preer a definite period of years, only its cash sur sented to us. render value at the time of bankruptcy is se In Re Scheld, 44 C. C. A. 233, 104 Fed. 870, cured to the creditors, and the ultimate fund, 52 L. R. A. 188, in the Ninth Circuit, it was if an endowment policy, is retained by the held that policies payable to the bankrupt or bankrupt, and if an ordinary life policy to his personal representatives passed to the the beneficiary, if any; if not, to the heirs trustee under section 70, but that policies of the insured.

payable to wife or children did not pass. This construction of the statute will give In Re Slingluff (D. C.) 106 Fed. 154, a case effect to the apparent intention of Congress, in Maryland, in which state a policy like that and harmonize all sections of the act, and before the court was not exempt by the state escape an otherwise unavoidable conflict be law, it was rightly held that it passed to the tween sections 6 and 70.

trustee. We do not find that this question has been In Re Holden, 51 O. O. A. 97, 113 Fed. 142, passed upon by the Supreme Court of the the court held to the doctrine of the Scheld United States, but there are several decisions Case, of the District and Circuit Courts which are In Re Welling, 51 O. C. A. 151, 113 Fed. not in harmony. These decisions of learned 189, policies of insurance were not exempt judges are entitled to great respect, but are by the laws of the state. The case, therenot conclusive upon this court.

fore, is not an authority upon the question In Re Lange (D. C.) 91 Fed. 361, where the under consideration. insurance was by endowment policy, In Steele v. Buel, 44 C. C. A. 287, 104 which by the laws of Iowa was exempt, the Fed. 968, three Circuit Judges sitting, CaldDistrict Court held that the surrender value well, Circuit Judge, delivered an able and went to the trustee, but in this case we think well-considered opinion, in which is adopted sufficient weight was not given to the lan the same construction of the statute we have


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