Richard S. Hooper, Trustee In Bankruptcy v. John A. Kennedy

• Decision Date: 04 May 1927
• Citation: 137 A. 194,100 Vt. 314
• Parties: RICHARD S. HOOPER, TRUSTEE IN BANKRUPTCY v. JOHN A. KENNEDY
• Court: Vermont Supreme Court

137 A. 194

100 Vt. 314

RICHARD S. HOOPER, TRUSTEE IN BANKRUPTCY v. JOHN A. KENNEDY

Supreme Court of Vermont

May 4, 1927

February Term, 1927.

ACTION OF REPLEVIN. Heard on agreed statement of facts by Caledonia county municipal court, Harry Blodgett, Judge. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Leon E. Ellsworth for the defendant.

Horace F. Graham for the plaintiff.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

WATSON

G. L. 2439 declares generally that the articles specified therein shall be exempt from attachment and execution, unless turned out to the officer by the debtor to be so taken.

The clause therein, under which defendant claims as exempt the typewriter, and roll-top desk in question, reads: "Such suitable apparel, bedding, tools, arms and articles of household furniture, as may be necessary for sustaining life." To particularize further, he claims that on the agreed facts of record the two articles in controversy are under said clause, "suitable * * * tools, * * * necessary for sustaining life."

This Court has said that when a class of property is exempt, such as is named in this clause, "the courts take care that the beneficial purposes of the Legislature are carried into execution, and give the statute the most liberal construction." Carty v. Drew, 46 Vt 346.

The question of exemption relates back to the time of the filing of the petition in bankruptcy (Smalley v. Laugenour, 196 U.S. 93, 49 L.Ed. 400, 25 S.Ct. 216), and future intended use is as controlling on the question of exemption as past use. Rowell v. Powell, 53 Vt. 302; Steele v. Lyford, 59 Vt. 230, 8 A. 736.

The term necessary, as used in the clause quoted, "has been construed to mean convenient or useful, and that has been deemed convenient or useful which a man procures for his own personal use, unless extravagant." Garrett v. Patchin, 29 Vt. 248, 70 Am. Dec. 414; Allen v. Thompson, 45 Vt. 472.

It is a matter of common knowledge that a typewriter is an instrument operated by hand, and is used to a great extent in the carrying on or prosecution of most kinds of business, requiring much correspondence in dealing with other people or business concerns, or in connection with commercial transactions had with others. Such an instrument may or may not be a tool necessary to the particular individual, for sustaining life, within the meaning of the statutory clause under consideration; and in the case at bar it is a question not of law alone, but of law and fact to be answered as a fact. Richards v. Hubbard, 59 N.H. 158, 47 A. R. 189. And the burden was on the defendant to establish affirmatively all the facts necessary to bring the particular articles replevied within the statute of exemption. Connell v. Fisk, 54 Vt. 381; Bourne v. Merritt, 22 Vt. 429; Rollins v. Allison, 59 Vt. 188, 10 A. 201; Chamberlain v. Whitney, 65 Vt. 488, 27 A. 72.

It affirmatively appears of record that at the time of filing the petition in bankruptcy the defendant, by reason of business and financial reverses, was for a time (understood by both parties to be short) under employment in the office of a granite manufacturer, and was so employed at the time of the bringing of this suit. Only by necessary inference from the fact stated that defendant claimed in his schedules in bankruptcy that said typewriter and desk were exempt, does it affirmatively appear that he even owned them at the time of...