Edgar, In re

• Decision Date: 30 March 1984
• Docket Number: No. 83-3036,83-3036
• Parties: Bankr. L. Rep. P 69,793 In re William H. EDGAR, Debtor. Lansing J. ROY, Trustee, Plaintiff-Appellee, v. William H. EDGAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1371

728 F.2d 1371

Bankr. L. Rep. P 69,793

In re William H. EDGAR, Debtor.

Lansing J. ROY, Trustee, Plaintiff-Appellee, v. William H. EDGAR, Defendant-Appellant.

No. 83-3036.

United States Court of Appeals, Eleventh Circuit.

March 30, 1984.

Alfred S. Lurey, Kilpatrick & Cody, Atlanta, Ga., for defendant-appellant.

Lansing J. Roy, Keystone Heights, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

William H. Edgar appeals the decision of the district court, which held that when an income distribution from a spendthrift trust is made to one who has within six months of the distribution filed a petition in bankruptcy, the bankruptcy trustee takes title to the distribution under Section 70(a) of the old Bankruptcy Act, 11 U.S.C.A. Sec. 110(a) (repealed 1978). ¹ We disagree with the decision below and therefore reverse.

When Clinton Goodloe Edgar, grandfather of appellant, died in 1932, he left a will that directed his executors to establish from his residual estate a spendthrift trust for the benefit of his wife, his children and his grandchildren. ² Among the other interests carved out by the will was an income interest that began paying income to appellant in 1957 on the death of his father. Appellant has received periodic distributions of income from the trust since 1957 and will continue to receive distributions until the trust's termination date or his earlier death. On the date that the trust terminates, the trustee will distribute half of the corpus to appellant if he is living and to his issue if he is dead.

On May 5, 1978, appellant filed a petition in bankruptcy. His bankruptcy estate did not include his income or remainder interests in the trust because the spendthrift provision of the trust prevented appellant from transferring these interests, and under the old Bankruptcy Act, 11 U.S.C.A. Sec. 110(a)(5), the bankruptcy trustee takes title only to that property of the bankrupt that can be transferred or levied upon. See Eaton v. Boston Safe Deposit & Trust Co., 240 U.S. 427, 36 S.Ct. 391, 60 L.Ed. 723 (1916). Within six months of his filing in bankruptcy, appellant received a distribution from the trust of $43,218.75. The bankruptcy trustee filed this action in bankruptcy court to recover for the bankruptcy estate the amount distributed from the trust, arguing that the distribution fell within the statutory provision that makes part of the bankruptcy estate all nonexempt property that vests in the bankrupt, by bequest, devise or inheritance, within six months of the filing in bankruptcy. 11 U.S.C.A. Sec. 110(a) (second unnumbered paragraph) (repealed 1978). The trustee claimed that the distribution constituted a "bequest" that "vested" within six months of bankruptcy. Appellant maintained that the distribution did not constitute a bequest under the statute and that, in any case, his interest in the distribution vested prior to the six-month period required by the statute.

The parties, agreeing that no dispute existed over factual matters, submitted the case to the bankruptcy court on cross motions for summary judgment. The bankruptcy judge ruled in favor of the trustee in bankruptcy, 11 B.R. 853, and the district court, adopting the opinion of the bankruptcy judge, affirmed. Edgar appeals.

Under Section 70(a) of the Old Bankruptcy Act, "[t]he trustee of the estate of a bankrupt ... shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition ... to all of the following kinds of property; ... (5) property, including rights of action, which prior to the filing of the petition [the bankrupt] could by any means have transferred...." 11 U.S.C.A. Sec. 110(a) (repealed 1978). The statute also provides that "[a]ll property, ... which vests in the bankrupt within six months after bankruptcy by bequest, devise or inheritance shall vest in the trustee ... as of the date when it vested in the bankrupt...." Id. (second unnumbered paragraph). As noted above, the Supreme Court has long held that under this statutory language interests of the bankrupt in a spendthrift trust, because they are not transferable, are immune from inclusion in the bankruptcy estate. Eaton, supra. The issue presented by this appeal is whether the second unnumbered paragraph of Section 70(a) reaches income distributed from a bequeathed spendthrift trust when the income distribution is made within six months of the filing in bankruptcy. The issue raises two questions: whether an income distribution from a bequeathed trust itself constitutes a bequest and, if it does, whether the $43,218.75 distribution in this case vested within six months of the filing of the bankruptcy petition. Our resolution of the second question obviates a decision of the first. Even if the distribution constituted a bequest, appellant's interest in the property did not vest within six months of the filing in bankruptcy.

Under the second unnumbered paragraph of Section 70(a), the bankruptcy trustee takes title to any bequest that vests in the bankrupt within six months of the filing in bankruptcy. 11 U.S.C.A. Sec. 110(a) (repealed 1978). Appellant argues that his interest in the income distribution made within six months of bankruptcy actually vested in 1957 on the death of his father. The bankruptcy trustee argues that appellant's interest in the income distribution vested when the distribution was made and became transferable, which was within the six-month period provided by the statute. Both parties claim Thornton v. Scarborough, 348 F.2d 17 (5th Cir.1965), as authority for their view. ³

In Thornton, the bankrupt filed a bankruptcy petition four days before the death of his father who left a will that created a trust, the income of which went to the testator's wife during her lifetime and the corpus of which, after the death of the testator's wife, was to be divided equally among all of the testator's living children and deceased children with descendants then living. Id. at 18. The bankruptcy trustee made a claim on the bankrupt's interest in the estate, and on appeal the question presented was whether the bankrupt's interest in his deceased father's estate--at a time when the widow still lived--was property that vested in the bankrupt, by bequest, devise or inheritance, within six months of the filing in bankruptcy, as provided by the statute. Id. at 17-18. The Court in Thornton held against the trustee. Id. at 19-20.

The trustee in this case argues that Thornton stands for the proposition that a beneficiary's interest in bequeathed property becomes "vested" only when the beneficiary obtains a possessory interest in the property with the accompanying right to transfer the interest. He argues that because the interest of the bankrupt in Thornton--a contingent remainder interest--was not possessory and not transferable as a matter of state property law, it was not vested under the statute, and the bankruptcy trustee could not reach it even though the bankrupt had acquired the interest within the six-month time period provided by the statute.

This interpretation of Thornton is incorrect. The Court there stated that

the word "vests" used here is not a word of art used in determining what kind of a property interest the bankrupt acquired upon the death of his father. We think the words "vests in" are synonymous with "is acquired by" or "passes to." Thus, the language may be paraphrased as "all property ... which is acquired by the bankrupt within six months after bankruptcy by bequest, devise or inheritance ...."

Id. at 19. ⁴ The Court then considered whether the property that "vested" or "was acquired" within the six-month period was the kind of property subject to the statute. The Court concluded that the word "property" in the second unnumbered paragraph of Section 70(a) ("property ... which vests in ...") must be defined "in pari materia with 'property' in (5), that is 'property, ... which prior to the filing of the petition [the bankrupt] could by any means have transferred ....' " Id. at 19-20 (quoting ...