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the provision, which imply this, are so inseparably connected with the modifying clause attempting to create a trust as to render the whole provision void for remoteness.

The creation of a trust which cannot vest the object of the trust within the time limited by law will be nugatory. 1 Perry on Trusts, 383; Blagrave v. Hancock, 16 Sim. 371; Dodd v. Wake, 8 Sim. 615; Sears v. Russell, 8 Gray, 86; Brattle Square Church v. Grant, 3 Gray, 142, 63 Am. Dec. 725; Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635; Brooks v. Belfast, 90 Me. 318, 38 Atl. 222. See Slade v. Patten, 68 Me. 380.

The trust fund is not separable, and might vest too remotely in the heirs of a child of William M. Towle born after the death of the testator.

If two constructions may be put upon a provision in a will, one of which will violate an inflexible rule of law and the other not, the construction which will not offend the rule is to be adopted by the court. 1 Perry on Trusts, 381; Martelli v. Holloway, L. R. 5 H. L. 532.

It will be observed that the testator uses the words "and his heirs" technically in reference to other devises in this will, and he is presumed to employ them in their legal sense unless the context clearly indicates the contrary. 3 Jar. on Wills, 707.

It must be held that William M. Towle took a remainder in fee. This is the legitimate effect of the language used in the first section of the provision under consideration, and even the intent of the testator to restrict it by a trust must yield to the rule against perpetuities. 1 Jar. on Wills, 293, 295, 296; Gray on Per. §§ 233, 235, 240; Deford v. Deford, 36 Md. 168; Sears v. Putnam, 102 Mass. 5. The trust is therefore invalid. We answer the prayer of the complainant, in behalf of all parties interested, that the proportion of the estate in which William M. Towle was interested, and which came at the death of Lucinda L. Towle into the hands of the complainant as executor, vested absolutely in William M. Towle and belongs to his estate.

The expenses of this suit should be paid out of the property involved in this decision. Decree accordingly.

(97 Me. 447)

MILLIKEN v. HOUGHTON. (Supreme Judicial Court of Maine. April 14, 1903.)

TAX TITLE-SALE-RETURN BY TOWN TREAS

URER-INSOLVENCY-ASSIGNMENT

-REAL ACTION.

1. In making return of his doings in selling land of a nonresident for nonpayment of town taxes, the town treasurer should state facts showing that no bid could be obtained for less than the whole land, and that it was necessary to sell the whole land in order to obtain the amount of the tax and costs.

2. A statement in such return that "it became necessary to sell the whole amount of the real estate, ," without any statement of facts showing such necessity, is a statement of the treasurer's opinion only, and is not sufficient to sustain a title under such sale.

3. An assignment under the insolvent law (Rev. St. c. 70, § 33) does not require a seal.

4. In a real action, where no rents or profits are sued for, no allowance can be made for taxes paid by the defendant.

(Official.)

Report from Supreme Judicial Court, Oxford County.

Action by Charles R. Milliken against John Houghton. Case reported. Judgment for plaintiff.

Real action to recover possession of Lot 8, range 12, in the town of Byron, Oxford county, known as the "Hiram Gilcreasse Farm." The defendant relied on a tax title.

The parties agreed that, if the court find the title to be in the plaintiff, the court may also determine whether the defendant had any right to be reimbursed for taxes paid by him and interest thereon.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

E. Foster and O. H. Hersey, for plaintiff. G. D. Bisbee and R. T. Parker, for defendant.

EMERY, J. The defendant's claim of title rests solely on a tax sale and deed by the treasurer of the town of Byron for nonpayment of a town tax assessed in 1885 to the then nonresident owner. The statutes (Rev. St. 1883, c. 6, §§ 188, 189) were then in force. It was explicitly declared by the court in construing that statute in Ladd v. Dickey, 84 Me. 190, 24 Atl. 813, at the bottom of page 194, 84 Me., page 814, 24 Atl., that to show a valid salc "it should appear that he exposed for sale and sought offers for a fractional part of said premises sufficient to pay the tax and legal charges, and that he could obtain no bid therefor. It is not sufficient for him to say that it was necessary to sell the whole amount so assessed and advertised, no person offering to pay the tax and legal charges for a smaller fractional part of said real estate. It must appear that he tried to obtain an offer for the payment of the tax and legal charges for a fractional part of the premises without success."

The treasurer sold the whole tract, but we nowhere find, either in the recitals in the tax deed, or in the treasurer's return of his doings, or anywhere else, the evidence that the treasurer "sought offers for a fractional part," or "tried to obtain an offer for the payment of the tax and legal charges for a fractional part of the premises without success." The most the treasurer says is that "it became necessary to sell the whole amount of the real estate so assessed and advertised, as no person would pay the tax

es, interest, and legal charges for a less amount of said real estate." This is merely a statement of the treasurer's opinion, viz., that he thought no person would pay the taxes, etc., for a less amount, and that, therefore, he thought it was necessary to sell the whole amount. The fact might have been different. Had he "sought offers for a fractional part" or "tried to obtain an offer" therefor, as the court said in Ladd v. Dickey, supra, was his duty, he might perhaps have been successful. Had he done so, and without success, and so stated in his return, it would then have been apparent to the court that it was necessary to sell the whole tract. As it is, the necessity does not appear, and we must therefore hold the sale, being of the whole tract, to be invalid.

The plaintiff shows a prima facie title by a chain of deeds from a former acknowledged owner. The only objection seriously made to his prima facie title is that, where it passed through the insolvency court, neither the seal of the court nor of the judge was affixed to the instrument of assignment by which the judge assigned and conveyed the insolvent's property to the assignees in the case. The statute (Rev. St. 1883, c. 70, § 33) then in force did not require any seal. "An instrument under his hand" was all that was required. After considering all the objections suggested, we are satisfied the plaintiff has sufficient title to maintain this action.

By the terms of the report, if the court find the title is in the plaintiff, it is to determine whether the defendant has any right to be reimbursed for taxes paid and interest on same. This is an action at law, a real action, in which no rents and profits are claimed, and, as the case is now presented, no right of reimbursement is shown by the defendant. He is, and presumably has been, in possession, taking the rents and profits, if any. When he is asked to account for these, he may perhaps raise the question of allowance for taxes paid.

Judgment for the plaintiff for title and possession and for $1 of damage.

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LIFE INSURANCE-EXEMPTIONS-BANKRUPTCY

-FRAUDULENT ASSIGNMENT-SUR-
RENDER VALUE.

1. At the date of the filing of his petition, March 8, 1901, a bankrupt held a policy of insurance on his life payable to him or his assigns, if he survived 20 years, the date of the policy being March 1, 1893; but if he died before that time it was payable to his wife if she survived him; if not, to his representatives or assigns. In 1900 his wife was divorced from him, and she assigned her interest in the policy

1. See Bankruptcy, vol. 6, Cent. Dig. §§ 201, 664.

to her husband. Shortly after that he assigned to his daughter all his right to the sum insured "in event of death," if she survived him, but did not assign the endowment if he survived 20 years. His trustee in bankruptcy sought by bill in equity against the bankrupt and the daughter to hold this policy, or its surrender value at the date of bankruptcy, March 8, 1901.

Held, that by the laws of Maine (Rev. St. c. 49, § 94; Id. c. 75, § 10) this insurance is exempt from the claims of creditors; also by the bankrupt act of 1898.

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2. The bankrupt act of July 1, 1898, provides, in section 6, 30 Stat. 548, c. 541 [U. S. Comp. St. 1901, p. 3424], that the "act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws." And section 70 of the bankrupt act, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], provides that the trustee of the bankrupt shall "be vested by operation of law with the title of the bankrupt, except in so far as it is to property which is exempt," to various enumerated kinds of property, and to "property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him." Held, that this clause must be construed in the light of the terms in the earlier part of the same section which excepts exempted property. Any other construction would annihilate all the exemptions specially provided for in the act.

3. By another subsequent provision in section 70 of the bankrupt act of July 1, 1898, 30 Stat. 565, c. 541 [U. S. Comp. St. 1901, p. 3451], it is declared: "Provided, that when any bankrupt shall have any insurance policy which has a cash surrender value, payable to himself, his estate or personal representatives, he may within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the policy, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets." Held, that this proviso, instead of enlarging the rights to property in the trustee, qualifies and limits them. But for it, in states where life policies are not exempted, and no beneficiary is named, the entire interest in the insurance would pass to the trustee. The proviso limits the amount to go to the creditors to the "surrender value" only, reserving to the bankrupt an interest he would not otherwise retain. This construction gives effect to the manifest intent of Congress, harmonizes all sections 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].

4. Held, that the assignment to the daughter "in the event of death" before the endowment period is not fraudulent as to creditors. The assignment to the daughter is not of the whole policy, as it might have been, but only of the right to the fund if the assured shall die before the endowment period of 20 years. The right thus assigned has no surrender value-that remains to the assured for the endowment period -it had no value as to creditors, for it was absolutely exempt from their claims under the bankrupt act and the state statute. Even as his heir the result to the daughter would be the same, or it could have been accomplished by a will of the father.

5. The policy contains this clause: "At the end of the fifth and every subsequent fifth year from date of issue the cash value specified in table of cash surrender values indorsed hereon will be paid for this policy, provided it shall

be in force under its original conditious, and is legally surrendered thereafter to the home office within thirty days from the close of such period." The date of the policy was March 1, 1893. The first surrender period was on March 1, 1898, but the policy was not then surrendered, and that right to surrender was lost. The next period will arrive March 1, 1903, but the bankruptcy occurred March 8, 1901. Held, that at that date the policy had no surrender value which the company was bound to recognize. The surrender value referred to in section 70 of the bankrupt act July 1, 1898, 30 Stat. 565, c. 541 [U. S. Comp. St. 1901, p. 3451], refers only to the contract right of surrender, and not to the result of a negotiation or act of grace.

6. Section 70 of the bankrupt act of July 1, 1898, 30 St. 565, c. 541 [U. S. Comp. St. 1901, p. 3451], does not include policies payable to a wife or kindred of the assured, but only applies to policies payable to the assured or his personal representatives.

(Official.)

Report from Supreme Judicial Court, Androscoggin County.

Bill by James A. Pulsifer against Charles E. Hussey and another. Heard on report of agreed statement, and dismissed.

Bill by the plaintiff trustee in bankruptcy against Charles E. Hussey, bankrupt, and his daughter, seeking to hold a policy of insurance on the life of the bankrupt, or its surrender value on March 8, 1901; date of policy, March 1, 1893.

The parties agreed to report the case to the law court upon bill, answer, and replication, and the following agreements and statement of facts.

On December 12, 1899, Lizzie L. Hussey, the beneficiary named in the policy and mentioned in the plaintiff's bill, assigned to the defendant, her husband, Charles E. Hussey, or his legal representatives or assigns, all her interest in said policy. A copy of said assignment was filed with the agent of the insurance company, and by him forwarded to the home office of the company, the Travelers' Insurance Company, where it was received as filed on December 19, 1899. A copy of said assignment was annexed to and made part of the statement of facts.

On July 10, 1900, Lizzie L. Hussey, having obtained a divorce from her husband, the said Charles E. Hussey, claiming that she had not assigned her interest December 12, 1899, executed another assignment of all her interest as beneficiary in said policy to the defendant Charles E. Hussey, and a copy of the same was forwarded by him to the home office of the insurance company, where it was received and filed August 7, 1900. A copy of said assignment was annexed to and made a part of the statement of facts.

On August 10, 1900, said Charles E. Hussey, without receiving any compensation or valuable consideration therefor, gave to his daughter, Edith G. Gove, a defendant in this case, the writing of that date by him signed, which was forwarded to the same

home office of the insurance company, where it was received and filed August 20, 1900.

The last-named assignment is as follows: "For One Dollar, in hand paid, and for other valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby assign, transfer and set over unto Mrs. Edith G. Gove, daughter, of Biddeford, Maine, (provided said assignee be living at the time of the death of the insured), all the right, title, claim, interest, and benefit of the undersigned in and to the principal sum insured in event of death by the Policy of Insurance issued by the Travelers'

Insurance Co., of Hartford, Conn., on the life of Charles E. Hussey and numbered 73148. In Testimony Whereof, I have hereunto set my hand and seal at Biddeford Me. this tenth day of August 1900.

"Charles E. Hussey. [L. S.] "In presence of H. G. Hutchinson. To C. E. H."

On said August 10, A. D. 1900, the said Charles E. Hussey was owing a large part of the debts mentioned in his schedule of liabilities and filed in court with his petition in bankruptcy.

Said plaintiff demanded of said Charles E. Hussey, to wit, on June 6, 1901, said policy of insurance, and said Charles E. Hussey refused to deliver up the same. Said plaintiff thereupon demanded of said Charles E. Hussey the equivalent of the cash surrender value of said insurance policy, and the said Charles E. Hussey refused to pay the same, and has ever since refused and neglected to either deliver said policy of insurance to the plaintiff or to pay him the said cash surrender value.

By the written terms of said policy, its cash surrender value was, on March 1, 1898, $287.50, and will be on March 1, 1903, $712.50. But while said policy gives the right to the insured to surrender his policy only during the 30 days immediately succeeding each five-year period from its date, and only provides in terms as to what the cash surrender value shall be at those periods, it is, nevertheless, the custom of said insurance company to waive the strict and literal construction of the clause in its said policy relating to the cash surrender value of said policy, and allow said policy to be surrendered and canceled at any time, and to pay in consideration of such surrender an increased sum therefor with each full year's premium paid thereon. In other words, under said custom, the cash surrender value of said policy changes on the 1st day of March of each year during its life, and does not increase on account of anything less than a full year's premium.

Under said custom, the cash surrender value of said policy was on March 1, 1901, $522.50, and on March 1, 1902, $615.

Said policy had no cash surrender value to said Edith G. Gove, the full sum being pay

able to said Charles E. Hussey at the expiration of 20 years, if he was living. And, in order to have a cash surrender value, said Hussey and said Gove (if said writing of August 10, 1900, be valid) must release each of their interests in said policy.

Said insurance policy was thereupon filed in court, and became a part of this agreed statement of fact, and together with said writing dated August 10, A. D. 1900, there remains, pending the final decision of the case, subject to the trial and final disposition of the court according to the rights of the parties as they should be determined.

The said Charles E. Hussey has paid the following sums at the time specified, as premiums upon said policy of insurance, since the date of his petition in bankruptcy:

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STROUT, J. The defendant Hussey was decreed bankrupt on March 8, 1901. March 1, 1893, he obtained a policy of insurance upon his life, which was in force when he became bankrupt and is still in force. His wife, Lizzie L. Hussey, was the beneficiary named in it. By its terms the amount insured was to be paid to Charles E. Hussey, or his assigns if he survived 20 years, or, if he survived his wife, then to his legal representatives or assigns. But if he did not survive 20 years, and his wife survived him, then the amount was payable to her. It also contained provision for surrender at certain times according to the "cash surrender values" indorsed thereon. Lizzie L. Hussey was divorced from her husband, and afterwards, on July 10, 1900, executed an assignment of all her interest in the policy to her former husband, Charles. August 10, 1900, Charles assigned to his daughter, Edith G. Gove, one of the defendants, provided she be living at the time of his death, all his right to the sum insured "in event of death," but not assigning the endowment to her if he survived 20 years.

Plaintiff, as trustee in bankruptcy of Charles, claims to hold this policy, or its surrender value at the date of bankruptcy. Whether it is to be regarded as assets in the hands of the plaintiff is the question presented.

By Rev. St. Me. c. 75, § 10, "money received for insurance on his life, deducting the pre

miums paid therefor within three years with interest, does not constitute a part of his estate for payment of debts

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when the intestate leaves a widow or issue," but descends to the widow and issue, or, if no widow, to the issue. "It may be disposed of by will, even if the estate is insolvent." Charles has a daughter, Mrs. Gove.

By Rev. St. Me. c. 49, § 94, "life and accident policies, and the money due thereon are exempt from attachment, and from all claims of creditors during the life of the insured, when the annual cash premium paid does not exceed one hundred and fifty dollars," etc.

Under these statutes it is beyond question that if the policy is within them it could not be reached by creditors under the laws of this state.

By the bankrupt act of July 1, 1898, § 6, 30 Stat. 548, c. 541 [U. S. Comp. St. 1901, ́p. 3424], it is provided that "this act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherever they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition." This provision pervades and qualifies the whole act, and is to be read into all its subsequent language. It is equivalent to saying that, whatever general expressions may appear in other parts of the statute, they must all be taken subject to this unqualified expression.

By section 70, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], of the same act, it is provided that the trustee of the bankrupt shall "be vested by operation of law with the title of the bankrupt * except in so far as it is to property which is exempt," to various enumerated kinds of property, and, fifth, to "property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him." this clause 5 should be given literal effect, it would destroy all exemptions specially provided for in section 6 of the act. It must be construed in the light of the term in the earl'. er part of the same section, which excepts exempted property, manifestly referring to the exemption in section 6.

If

This construction harmonizes section 6 and that part of section 70 with the evident legislative intention. There immediately follows in section 70 the language: "Provided, that when any bankrupt shall have any insurance policy which has a cash surrender value pay. able to himself, his estate or personal representatives, he may within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issu ing the policy, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankrupt

cy proceeding, otherwise the policy shall pass to the trustee as assets."

The policy in this case had a surrender value to Charles at each successive five years after its date. The plaintiff claims under the recited proviso.

Arbitrary rules for the construction of statutes afford slender aid in their consideration, and not infrequently mislead. To so construe the different provisions of a statute so as to produce a harmonious whole, in accord with the apparent legislative intent, is the object aimed at, and to be accomplished, if it can be done consistently with its terms, although detached sentences or paragraphs may indicate a different view.

In this statute, in section 6, there is expressly exempted from the operation of the act the exemptions given by the state. Later in section 70, which defines the property passing to the trustee, it is prefaced with the statement, "except in so far as it is to property which is exempt," and then follows, in the same section, all subject to the exemption, the property which he might have conveyed, and the provisions as to life policies. On reading the section, the intention appears to be clear that all its terms apply only to property not exempt by the state laws.

Instead of enlarging the rights to property in the trustee, this proviso further qualifies and limits them. But for it, in states where life policies are not exempted, and no beneficiary is named, the entire interest in the insurance would pass to the trustee. But the proviso limits the amount to go to the creditors to the "surrender value," reserving to the bankrupt an interest he would not otherwise retain. The proviso is in the interest of the bankrupt, and not in that of his creditors; for whether payable to his estate at death, or as an endowment to the insured after a definite period of years, only its cash surrender value at the time of bankruptcy is secured to the creditors, and the ultimate fund, if an endowment policy, is retained by the bankrupt, and if an ordinary life policy to the beneficiary, if any; if not, to the heirs of the insured.

This construction of the statute will give effect to the apparent intention of Congress, and harmonize all sections of the act, and escape an otherwise unavoidable conflict between sections 6 and 70.

We do not find that this question has been passed upon by the Supreme Court of the United States, but there are several decisions of the District and Circuit Courts which are not in harmony. These decisions of learned judges are entitled to great respect, but are not conclusive upon this court.

In Re Lange (D. C.) 91 Fed. 361, where the insurance was by an endowment policy, which by the laws of Iowa was exempt, the District Court held that the surrender value went to the trustee, but in this case we think sufficient weight was not given to the lan

guage of the first part of section 70, or the imperative language of section 6. Section 70, in defining the property passing to the trustee, says the title of the bankrupt passes to the trustee, "except so far as it is to property which is exempt" (which exemption is defined in section 6) to all the then following enumerated species of property. The opinion also treats the proviso as to insurance policies, as an independent, positive, and controlling enactment, unaffected by the exception which applies to all the after enumerated property. This case, and that of Steele (D. C.) 98 Fed. 78, were reversed by the Circuit Court in Steele v. Buel, 44 C. C. A. 287, 104 Fed. 968. In Re Boardman (D. C.) 103 Fed. 783, the policy was an endowment one. The case arose on petition of the bankrupt for an order upon the trustee who had possession of the policy to deliver it to him. In denying the petition upon the ground that the trustee had some interest in the policy, the District Judge cited with approval Diack's Case (D. C.) 100 Fed. 770. In that case the policy was an endowment, payable to the assured if he survived 15 years, "or, should he die before, then to his wife, if living; if not, then to" the insured's personal representatives. For some years Mrs. Diack paid the premiums, and it was held that “as the trustee cannot require Mrs. Diack either to accept a paid-up policy, or to suffer the policy to lapse and thus obtain immediate payment of the surrender value, the bankrupt should be required, unless Mrs. Diack shall elect to surrender, to execute an assignment to the trustee of his interest in the surrender value of the policy, which "should be made payable out of the proceeds of the policy when it matures, or whenever sooner paid." The case does not discuss the construction of the bankrupt act which is presented to us.

In Re Scheld, 44 C. C. A. 233, 104 Fed. 870, 52 L. R. A. 188, in the Ninth Circuit, it was held that policies payable to the bankrupt or his personal representatives passed to the trustee under section 70, but that policies payable to wife or children did not pass.

In Re Slingluff (D. C.) 106 Fed. 154, a case in Maryland, in which state a policy like that before the court was not exempt by the state law, it was rightly held that it passed to the trustee.

In Re Holden, 51 C. C. A. 97, 113 Fed. 142, the court held to the doctrine of the Scheld Case.

In Re Welling, 51 C. C. A. 151, 113 Fed. 189, policies of insurance were not exempt by the laws of the state. The case, therefore, is not an authority upon the question under consideration.

In Steele v. Buel, 44 C. C. A. 287, 104 Fed. 968, three Circuit Judges sitting, Caldwell, Circuit Judge, delivered an able and well-considered opinion, in which is adopted the same construction of the statute we have

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