In re McKenzie

• Decision Date: 07 November 1904
• Citation: 132 F. 986
• Parties: In re McKENZIE.
• Court: U.S. District Court — Eastern District of Arkansas

132 F. 986

In re McKENZIE.

United States District Court, E.D. Arkansas, Western Division.

November 7, 1904

White &amp Altheimer, for petitioner.

J. M. &amp J. G. Taylor, for trustee.

Sallie A. McKenzie, widow of the bankrupt, filed her petition with the referee for an assignment of dower in the real and personal property of the deceased bankrupt. At the request and by consent of both parties, the widow and the trustee the petition was certified to the court for determination without first submitting it to the referee.

The facts as agreed upon are as follows: The bankrupt filed his voluntary petition and was adjudicated a bankrupt on the 16th day of February, 1904. On the-- day of March, 1904, James Gould was duly elected the trustee of the bankrupt estate and, having qualified as such, took possession of the property belonging to the bankrupt. The personalty has been sold by the trustee in due course of the administration of the estate. While the proceeds of the sale were in his possession, to wit, on the 19th day of June, 1904, the bankrupt, after having received his discharge, died, leaving him surviving the petitioner, his widow. As there is no dispute as to her right to dower in the real estate, it is useless to refer to that part of the petition.

The statute of Arkansas in relation to the dower in personalty provides (section 2541, San. & H. Dig.): 'A widow shall be entitled, as part of her dower, absolutely and in her own right, to one-third part of the personal estate, including cash on hand, bonds, bills, notes, book accounts and evidences of debt, whereof the husband died seised or possessed.'

TRIEBER, District Judge (after stating the facts).

The proviso of section 8 of the bankruptcy act provides that 'in case of death the widow and children shall be entitled to all rights of dower and allowance fixed by the laws of the state of the bankrupt's residence.'

Under the statute of Arkansas, which is set out in the foregoing statement of facts, it is necessary, in order to entitle a widow to dower in personalty, to establish, in addition to the marriage and death of the husband, the further fact that he died seised or possessed of the personalty.

Section 70 of the bankruptcy act July 1, 1898, c. 541, 30 State. 565 (U.S. Comp. St. 1901, p. 3451), vests, by operation of law, in the trustee of the bankrupt's estate the title to all the property belonging to the bankrupt as of the date he was adjudicated a bankrupt, and as, in the case at bar, the adjudication took place before his death, and the trustee was in the actual possession of the property before that time, the bankrupt was therefore neither seised nor possessed of the same at the time of his decease. That under the laws of the state of Arkansas the widow is not entitled to dower in personalty under these circumstances is too clear to require argument, but if there were any room for doubt it is removed by the construction placed on this statute by the Supreme Court of the state.

In Arnett v. Arnett, 14 Ark. 57, salves had been levied upon by the sheriff under a writ of execution. Before the sale the debtor died, and his widow claimed dower in the property in the possession of the sheriff under the writ of execution. The court denied the claim, holding:

'This section, unlike that which allows dower in real estate, limits the wife's rights to dower to the slaves of which the husband was, at the time of his death, seised or possessed, and cuts off all claim to dower where the slaves have been disposed of prior to his death, and this without her co-operation or assent. The whole question then turns upon the effect of the levy, which, although insufficient to divest the defendant in execution of title to the property levied upon-- for that does not pass until after sale--does, when made on personal estate, disseise the defendant and dispossess him of the property levied upon; for whether the officer takes the property into possession or not, it is, in contemplation of law, in his custody; he is responsible for it, and has a right to hold it against the claims of the defendant in execution and all others. It is taken in satisfaction of the debt, and is held and taken as such until sold or the levy is otherwise discharged. The levy in this case was not only a disseisin in law, but also in fact; for the property was not only actually taken out of his possession, but beyond the control of the defendant, or his power to reclaim or reduce it to possession by mere force of legal right. The defendant in execution, therefore, had not at the time of his death such seisin or possession as to entitle complainant to dower in the slaves.'

In Crow v. Powers, 19 Ark. 424, it was held that a deed of manumission of a slave, though to take effect only at the death of the grantor, was such a want of possession upon his death that the widow was not entitled to dower.

In McClure v. Owens, 32 Ark. 443, it was held that the mortgage of personalty by the husband, which the wife did not join, although the mortgage was not recorded, deprives her of her right of dower therein. The court in that case say:

'The wife, by marriage, has no such incohate right of dower in the personal estate of her husband as she has in his real estate, and he may sell, mortgage, or dispose of the same at his pleasure. Her right of dower in his personal estate does not accrue until his death, and only in such as he then owns.'

If a mere seizure under execution, or a manumission of slaves to take effect upon his death, defeats the widow's claim of dower, the adjudication in bankruptcy, which absolutely divested the bankrupt of the title to the property and vested it in the trustee, certainly must have the same effect.

It has been held by the Supreme Court that the mere filing of the petition in bankruptcy is in effect an attachment and injunction. Mueller v. Nugent, 184 U.S. 1, 14, 22 Sup.Ct. 269, 46 L.Ed. 405. The adjudication, election of the trustee, and taking possession of the personalty by the trustee makes the trustee's title to it perfect, so that the bankrupt is no longer seised or possessed of it. In re Meyer (D.C.) 106 F. 828; McFarland Carriage Co. v. Solonas (C.C.) 108 F. 532; Hawk v. Hawk (C.C.) 102 F. 679.

But it is claimed by counsel for the widow that the bankruptcy act extends the right of a widow to dower to the time the personalty of the estate is actually distributed, and that in contemplation of law the bankrupt is seised and possessed of the bankrupt estate, for the purpose of the widow's dower, until the proceeds are actually distributed among the creditors.

If this proviso were to be considered regardless of any of the other provisions of the bankruptcy act or the provisions of the former bankruptcy acts, there might be some reason for this contention; but it is a well-settled rule of law that in construing any section of a statute the intention of the...