In re Haslett

• Decision Date: 23 April 1902
• Docket Number: 751.
• Citation: 116 F. 680
• Parties: In re HASLETT.
• Court: U.S. District Court — Northern District of Georgia

116 F. 680

In re HASLETT.

No. 751.

United States District Court, N.D. Georgia.

April 23, 1902

Mayson Hill & McGill and Lee J. Langley, for bankrupt.

O. E. &amp M. C. Horton, for petitioning creditors.

NEWMAN District Judge.

Samuel D. Haslett, in 1882, made a deed by which he conveyed certain real estate, in consideration of love and affection, to his wife, Georgia Ann Haslett, for life, and after her death to their children. The provision of the deed was that, if it should become necessary or greatly to the advantage of both the holder of the life estate and the remainder interest to do so, the life tenant, Georgia Ann Haslett, was authorized to sell and reinvest in other real estate, and for that purpose she was made trustee for her children. Samuel D Haslett died, and subsequently thereto R. V. Haslett, one of the children of Samuel D. and Georgia Ann Haslett, filed a petition in bankruptcy.

The question now presented is whether R. V. Haslett's remainder interest in the real estate in question should be scheduled as part of his assets in bankruptcy. It must be determined, of course, by the laws of the state. It would seem that under the law of Georgia R. V. Haslett took a vested remainder in the property in question. Code Georgia Sec. 3100. If a vested remainder, it could be conveyed, and is subject to levy and sale, such sale carrying the title of the remainderman, but not authorizing any interference with the possession of the life tenant. Wilkinson v. Chew, 54 Ga. 602. Even if this be a contingent remainder, the contingency is as to an event, and not as to the person, and under the decisions of the supreme court of this state the same result would seem to follow. Morse v. Proper, 82 Ga. 13, 8 S.E. 625; Collins v. Smith, 105 Ga. 525, 31 S.E. 449. If the bankrupt's remainder interest in this real estate could have been conveyed, and levied upon and sold, then it passed to the trustee in bankruptcy upon his appointment and qualification. The bankruptcy act of 1898, Sec. 70, provides:

'The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all * * * (5) 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.'

The referee having taken a contrary view of the matter when he had it under investigation, and his finding having been certified to the court, it is now referred back to him, with instructions to cause the trustee to take suitable action in accordance with the views herein expressed.

On the 23d day of April, 1902, a brief opinion was filed in this matter, holding that the bankrupt either had an undivided vested remainder interest in the real estate in question, or at least a contingent remainder interest, the contingency being as to the event, and not as to the person; that he could dispose of the same, and that it could be sold as his property; and consequently, either being true, it should be scheduled in the bankruptcy proceedings for the benefit of his creditors. Since this decision was made an application has been made for rehearing, and the question as to the character of the remainder created by the deed of Samuel D. Haslett to his wife and children has been fully and carefully argued. Since the argument I have re-examined the matter, and have gone as fully as I have been able, and certainly to such extent as would be profitable, into the interesting question involved.

The portion of the deed in question which is material here is as follows:

'Georgia, Fulton County. This indenture, made and entered into this the 15th day of Feb., in the year of our Lord one thousand eight hundred and eighty-two (A.D. 1882), between Samuel D. Haslett of the first part, and Georgia Ann Haslett, wife of said Samuel D. Haslett, and the children born and to be born of said Georgia Ann Haslett by said Samuel D. Haslett begotten, of the second part, all of said parties being in the city of Atlanta, said county and state, witnesseth that the said Samuel D. Haslett for and in consideration of the sum of ten dollars to him in hand paid at and before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, and for the further consideration of his natural love and affection for his said wife and children, hath this day given, granted, bargained, sold, and conveyed, and by these presents doth give, grant, bargain, sell, and convey, to the said Georgia Ann Haslett, wife of said Samuel D. Haslett, and the children of the said Georgia Ann and Samuel D. Haslett born and to be born, as aforesaid, to be held by his said wife and his said children, respectively, according to the tenures herein defined as to each of them, the following described lots of land, with the improvements thereon, all of which lie in the city of Atlanta, Fulton county, Georgia, to wit: (Describing the land). To have and to hold said bargained city lots to the only proper use, benefit, and behoof of said Georgia Ann Haslett for and during the full term of her natural life, during which term she shall have full right to the possession, use, and profits of all of said property, and at her death the whole of said property then remaining in the possession of said Georgia Ann Haslett shall pass to the children of said Georgia Ann Haslett begotten by said Samuel D. Haslett, including those now born and to be born, surviving their said mother, in common or equal shares; provided that, if any of said children shall have died and left a child or children surviving the said Georgia Ann Haslett, such last-mentioned child or children shall take the share or interest in said property to which its deceased parent would have been entitled if living, and said property, including any or all in which any proceeds of any sale hereinafter authorized may have been reinvested, shall be held and enjoyed by said children, and representatives of deceased children, or left to said child, if any, their heirs and assigns, in fee simple; and the said Samuel D. Haslett, although he believes the value of said city lots now well invested, and believes that the rents and profits of said lots will be sufficient to the maintenance of his said children, and desires, therefore, that no change of either of said investments shall be made unless manifestly necessary or to the great advantage of both his said wife and his said children, yet recognizing that unforseen circumstances may render it necessary for some of said property to be sold or make such a sale greatly to the advantage of his said wife and children, and having full confidence in the fidelity and capacity of his said wife, the said Georgia Ann Haslett, hereby appoints her, the said Georgia Ann Haslett, trustee for his said children, and empowers her as said trustee to convey, not only her life estate, but the remainder interest of said children in any of said property, when it is necessary to the maintenance of herself and said children, or greatly to the advantage of both the holder of the life estate and the remainder interest; provided that, if any of said property be so sold because to the advantage of said vendees, the proceeds thereof shall be reinvested in other equally valuable real estate, to be held on the same tenures and uses as that so sold; and provided, also, that said Georgia Ann Haslett shall only act as trustee for said children during their minority, and that, if she shall marry another husband after the death of the said Samuel D. Haslett, then said trust shall immediately cease and determine. And the said Samuel D. Haslett shall and will, by himself, his heirs, executors, and administrators, fully warrant and defend the title of said city lots to the said Georgia Ann Haslett for her natural life, and to the said children born and to be born of said Georgia Ann Haslett, by said Samuel D. Haslett begotten, after the term of said life tenant, their heirs and assigns, forever, by virtue of these presents.'

Counsel for the bankrupt on the rehearing rely on the language in the habendum clause of the foregoing deed, as follows: 'Shall pass to the children of said Georgia Ann Haslett begotten by said Samuel D. Haslett, including those now born and to be born, surviving their said mother, in common or equal shares; provided that, if any of said children shall have died and left a child or children surviving the said Georgia Ann Haslett, such last-mentioned child or children shall take the share or interest in said property to which its deceased parent would have been entitled if living. ' The contention is that the property was to go to such of the children of Samuel D. Haslett and Georgia Ann Haslett as should survive their mother, and that, this making an uncertainty as to the person who should take it, it is only a contingent remainder, and the title would not vest in the children until the death of their mother.

It is very doubtful, in view of the language in the other portions of the deed, if it should be given this construction. In the premises of the deed the language used is, 'sell and convey to the said Georgia Ann Haslett, wife of said Samuel D. Haslett, and the children of the said Georgia Ann and Samuel D. Haslett, born and to be born as aforesaid, to be held by his said wife and his said children, respectively according to the tenures herein defined as to each of them. ' Under the usual rule, the language of the premises would control over the...