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time of his demise, I desire and direct that said estate be equally divided amongst all of our children or heirs at law as follows: Addie Harkey, Nervada Pearson both of their parts to be for the benefit of them and their boddy heirs and Richard Hughes. Said division is not to take place till after the said Richard Hughes becomes twenty-one year old or his demise.

"Item 4. I nominate and appoint my beloved husband I. L. Hughes be sole executor of this will until his demise then the said Richard Hughes to be sole executor of this will, and direct that no bond or security be required of either one of them as such executor or executor.

"Item 5. It is my will that no other action be taken in the county court in the administration of my estate than to prove and record this will and to return an inventory and appraisement of my estate and list of claims in testimony whereof I have hereto set my hand this 14th day of Aug., A. D. 1906. "S. L. HUGHES.

"Signed, declared and published by S. L. Hughes as her last will and testament in the presence of us the attesting witnesses who have hereto subscribed our names in the presence of said S. L. Hughes at her special instance and request, this 14th day of August, A. D. 1906.

"C. W. WATSON. "A. PAYNE."

It was admitted by appellants, defendants in the court below, both by pleading and statements made in open court, that I. L. Hughes had possession of and claimed title to all the property of Mrs. S. L. Hughes, deceased, under said will, including the real estate described in the plaintiff's petition, to which he claimed to have fee-simple title by the terms of said will; and that appellants Addie Harkey and Nervada Pearson nor James Richard Hughes had ever claimed any title or interest in any of the property belonging to the said estate of S. L. Hughes, deceased. When James Richard Hughes made his application for discharge in bankruptcy one of his creditors was arranging to contest the same upon the proposition that he had failed to schedule all his property in that he did not schedule any interest in his mother's estate. It was then agreed between his counsel and counsel for the trustee in bankruptcy that this suit might be brought to have the will in question construed, and that the bankruptcy should continue until this case is disposed of.

McMahon & Dohoney, for appellants.

Clark & Sweeton, for appellee.

LEVY, J. (after stating the facts as above):

The granting clause of the will reads:

"I give, bequeath and demise to my beloved husband I L. Hughes all the estate both real and personal or mixed of which I shall die seized and possessed or to which I may be entitled at the time of my demise, with full power and authority to use and to hold the same in any manner he may desire, and at his demise, after being buried in a decent and Christianlike, manner, the balance of said estate both real and personal or mixed (of) which (I) shall die seized and possessed or to which he may be entitled at the time of his demise, I desire and direct that said estate be equally divided amongst all of our children or heirs at law as follows: Addie Harkey, Nervada Pearson both of their parts to be for the benefit of them and their body heirs and Richard Hughes. Said division is not to take place till after the said Richard Hughes becomes twenty-one years old or his demise."

According to the general scheme of the will, as shown by the language used, the testatrix clearly intended that her one-half undivided interest in the community property of herself and her husband should pass first to her husband, "with full power and authority to use and to hold the same in any manner he may desire," and next, "at his demise," that "the balance of said estate" (meaning after deducting the cost of husband's burial “in a decent and Christian-like manner ") should be "equally divided amongst all of our children," specially naming them. The words used, by proper construction, operate to pass a less estate to the husband than a fee-simple one. The words "to hold," used as they were in connection with the words "to use," were intended to be taken in the idea of " to keep." Nor does the grant of "full power and authority to use and to hold the same in any manner he may desire" signify the broad power of disposal at will of the property. The free use and occupancy only of the property, as those terms are ordinarily understood in relation to real and personal property, and not the power to dispose of the same, was intended to be given to the husband during his lifetime. "And," as provided, "at his demise" the property was to pass to and vest in the children named. Therefore it is believed that the effect of the will was to vest a life estate in I. L. Hughes, the husband, to the one-half undivided interest of the testatrix in the community property of herself and her husband, with vested remainder in the three children, Addie Harkey, Nervada Pear

son, and James Richard Hughes. McMurry v. Stanley, 69 Tex. 229, 6 S. W. 412; Pedigo's Exec. v. Botts (Ky.) 89 S. W. 164; Fuller v. Wilbur, 170 Mass. 506, 49 N. E. 916.

The vested interest of James Richard Hughes, passed. as a property right, to the trustee in bankruptcy, and is a subjectmatter of sale by him. In re Dorgan's Estate (D. C., Ia.), 38 Am. B. R. 157, 237 Fed. 507; Pollack v. Meyer Bros. Drug Co. (C. C. A., 8th Cir.), 36 Am. B. R. 835, 233 Fed. 861, 147 C. C. A. 535; In re McHarry (C. C. A., 7th Cir.), 7 Am. B. R. 83, 111 Fed. 498, 49 C. C. A. 429; In re Twaddell (D. C., Del.), 6 Aia. B. R. 539, 110 Fed. 145. The expectancy of an heir is the subject-matter of a sale and conveyance. Hale v. Hollon, 90

Tex. 427, 39 S. W. 287, 36 L. R. A. 75, 59 Am. St. Rep. 819.

It is to be understood and observed that the trustee in bankruptcy is not entitled "to possession" of the property as against the husband, who is now living.

The judgment is affirmed.

ELSIE LAURE V. JACK SINGER.

New Jersey Court of Errors and Appeals, May, 1924.

No. 40.

(Syllabus by the Court.)

RIGHTS, DUTIES AND LIABILITIES OF BANKRUPT-STAY OF PENDING SUITSATTACHMENT AND GARNISHMENT PROCEEDINGS-PLAINTIFF MAY RECOVER QUALIFIED JUDGMENT AGAINST BANKRUPT IN ORDER TO CHARGE SURETIES. Defendant was sued in attachment and entered a general appearance, stating therein that he was willing to accept a declaration and complaint at the suit of the plaintiff, and pleaded as a defense that since the institution of the case sub judice he had been adjudged a bankrupt pursuant to the act of Congress, and had included the claim of the plaintiff in his schedule of liabilities; that, if discharge were granted him, the indebtedness to the plaintiff would be discharged; therefore the matters in controversy here were such as should be adjudged by the bankruptcy court, and that if the Essex circuit court should assume jurisdiction it should only be for the purpose of determining the amount due the plaintiff, staying further proceedings, etc. Held, that plaintiff was entitled to recover on her contract in the court below, so that the amount due could be collected

from the surety company that went on the bond to release the attachment, even if the defendant should obtain his discharge in bankruptcy and the recovery could not by law be collected from him. Held, further, that assuming defendant is entitled to have execution on the judgment herein stayed, his remedy would appear to be to apply to the court below, or to the Court of Chancery for an injunction, for that purpose.

(See Collier, 13th Ed., p. 587 (c); Am. B. R. Digest, § 930.)

From a judgment of Supreme Court in favor of plaintiff, defendant appeals. Affirmed.

Stein, Stein & Hannoch, for appellant.

Lionel P. Kristeller, for respondent.

WA
ALKER, Ch.:

This suit is based upon a written contract dated May 24, 1922, made in Hamburg, Germany, between plaintiff, a resident of Germany, and defendant, a resident of New York. Plaintiff was a theatrical performer. Defendant was a theatrical producer. The contract provided for a 30-week engagement to be performed by the plaintiff for the defendant during the theatrical season of 1922-23 throughout the United States and Canada, at a weekly salary of $300. After performing for a few days, plaintiff was discharged at Brooklyn, N. Y., on September 9, 1922. She alleged that she was wrongfully discharged. The defendant contended that the discharge was a proper one. The jury found in favor of the plaintiff, and the question of wrongful discharge was therefore set at rest.

On September 28, 1922, a writ of attachment was issued out of the Essex circuit court at the suit of the plaintiff against the defendant on the ground of his non residence. Defendant entered a general appearance in the cause and stated therein that he was willing to accept a declaration and complaint at the suit of the plaintiff. Thereafter complaint and answer were duly filed. Defendant's answer denied that plaintiff was discharged from defendant's employ without reasonable or just cause, and also denied that she performed all of the agreements and conditions, and for a separate defense pleaded paragraph 12 of the contract, which provides, inter alia, that the contract shall be construed

only according to the laws of the state of New York, and that any suit or action thereon shall be brought and shall be maintainable only in a court held within the county and state of New York and not elsewhere; and averred that the Essex county circuit court was therefore without jurisdiction in the premises. And for another separate defense (sixth) it was pleaded that the defendant since the institution of the cause had been adjudged a bankrupt pursuant to the act of Congress relating to bankruptcy, and had filed a schedule setting forth his assets and liabilities, in which was included the claim of the plaintiff, due notice of the pendency of which said bankruptcy proceedings had been given to the plaintiff; that the time within which application for discharge might be made in said bankruptcy proceedings had not then expired, and, if discharge were granted, the indebtedness to the plaintiff would be discharged; that the matter in controversy between the parties, therefore, was one which should be adjudged by the federal court, and that the Essex circuit court should not assume jurisdiction; that in the event that that court should assume jurisdiction, it should only be for the purpose of determining the amount of indebtedness due to the plaintiff from the defendant, staying further proceedings pending the determination of the bankruptcy proceedings and the discharge of the bankrupt. The case was brought to trial before Mountain, J., and a jury. There was a verdict for plaintiff, upon which judgment was entered, and defendant appeals here.

There are two grounds of appeal urged: (1) The court erred in striking out the defendant's sixth defense; (2) the court erred in assuming jurisdiction in the case in view of clause 12 of the

contract.

First. Because it appears that the debt on which the judgment under review was recovered is one from which a bankrupt is entitled to be discharged under the Bankruptcy Act, which would relieve the defendant from his obligation to the plaintiff under the contract sued on, it is suggested in the brief on his behalf that, if the court should have heard the case, it should only have been for the purpose of fixing the amount of liability, and that plaintiff should be restrained from further proceedings under the judgment until disposition of the bankruptcy proceedings.

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