Eugene, In re

• Decision Date: 23 January 1962
• Docket Number: No. 2942,2942
• Citation: 177 A.2d 184,93 R.I. 511
• Parties: In re Assignment of Catherine EUGENE. Eq.
• Court: Rhode Island Supreme Court

Page 184

177 A.2d 184

93 R.I. 511

In re Assignment of Catherine EUGENE.

Eq. No. 2942.

Supreme Court of Rhode Island.

Jan. 23, 1962.

Frank C. Cambio, Providence, for assignee.

Edward F. J. Dwyer, Providence, for assignor.

CONDON, Chief Justice.

This is an assignment for the benefit of creditors in accordance with the provisions of G.L.1956, chapter 4 of title 10. The cause is here on the assignor's appeal from a decree of the superior court authorizing the assignee to sell the assigned real property, certain furniture, furnishings and fixtures for $45,000.

In support of her appeal the assignor alleges that the decree is against the law and the evidence and the weight thereof, is an abuse of the superior court's discretion, is lacking in equity and fails to do justice. At the hearing in this court on her appeal she contended that the assignment was intended to be only for the benefit of the creditors of her lingerie shop and not for all her creditors. Predicated on the validity of such contention she argues that the superior court erred in denying her motion to declare contestable the claims of creditors other than those creditors she had scheduled. In other words she insists that the assignment is a special and not a general assignment.

The assignee on the other hand contends that G.L.1956, chapter 4 of title 10, does not authorize a special assignment and in any event that the terms of the deed of assignment clearly show that it is an assignment of all the assignor's property and hence must be for the benefit not merely of some but of all her creditors. He further argues that the superior court did not err in denying her motion and that such denial does not preclude her from contesting the intrinsic merits of any of the claims of creditors which have been filed.

There is no merit in the assignor's contention for two reasons. In the first place G.L.1956, chapter 4 of title 10, in our opinion makes provision only for an assignment of all of an assignor's property for the benefit of all creditors. In other words it does not authorize either a partial or a special assignment as seems to be permissible under statutes in some other jurisdictions. See 6 C.J.S. Assignments for Benefit of Creditors § 2, p. 1221. But even in one of such jurisdictions it was stated that if the assignment in fact clearly shows that 'it does convey all of the assignor's property liable for his debts, then it becomes a general assignment, regardless of its terms, and must be so dealt with.' Newman v. Black, 73 Miss. 239, 245, 18 So. 543, 544.

In the second place the assignor's own deed of assignment contradicts her contention. By its very terms it makes no discrimination between her creditors but assigns all her property for the best interests of her creditors and as...