TRUSTEE. Lord Chan stock, &c. A the Reputed terested, to appoint a receiver of the trust property, ownership: better to secure the effects for the purposes of the trust. (1) But now, by section 79. of the new statute it is enacted, that if any bankrupt shall, as trustee, be seised, possessed cellor may of, or entitled to, either alone or jointly, any real or perorder trust sonal estate (2), or any interest secured upon or arising out to be trans- of the same; or shall have standing in his name as trustee, ferred. either alone or jointly, any government stock, funds, or annuities, or any of the stock of any public company, either in England, Scotland, or Ireland, -the Lord Chancellor, on the petition of the persons entitled in possession to the receipt of the rents or dividends, on due notice given to all other persons (if any) interested therein, may order the assignees and all persons whose act or consent thereto is necessary, to convey, assign, or transfer such estate, interest, &c. to such person or persons as the Lord Chancellor shall think fit, upon the same trusts as such estate, &c. were subject to before the bankruptcy; and also to receive and pay over the rents as he shall direct. (3) Cases where trust pro There are many cases, however, which have decided, that trust property does not pass to the assignees of a bankrupt perty does trustee. Thus, where a bill of sale was made to the bankrupt not pass. of certain leases and other property, in trust to pay the debts of the assignor, -the possession of such property by the bankrupt was held not to be a case of reputed ownership. (4) So, where a bankrupt had shares in a trading company, in trust for W., who by his will appointed the bankrupt his residuary legatee, Lord Redesdale held, that the shares were not left in the bankrupt's possession, so as to entitle his assignees absolutely to them; but that they were subject to the debts and legacies of W. (5) And where a (1) Ex parte Ellis, 1 Atk. 101. Ex parte Llewellyn, 1 C.B.L. 137. Langley v. Hawke, 5 Mad. 46. (2) Quære, whether this provision was necessary, as assignees were never considered entitled in any way to trust estates? (3) This section is an extension of the 36 G. 5. c. 90. s. 1., which was confined to government stock, standing in the name of the bankrupt. (4) Copeman v. Gallant, 1 P. Wms. 324. (5) Joy v. Campbell, 1 Sch. & Lef. 328. ownership: TRUSTEE bankrupt, previous to his bankruptcy, assigned to B. for a Reputed valuable consideration a debt due from A. to the bankrupt,the bankrupt was, in this case, held to be a trustee for B., and the debt not to pass under the commissioners' assignment. (1) So where a lease was granted to W., who afterwards committed an act of bankruptcy, and then executed a declaration of trust in favour of R.; and on the trial of an issue directed by the Court, it was found that W.'s name was used in the first instance in trust for R.; it was held, that the lease did not pass to W.'s assignees; and that the declaration of trust, though executed after the bankruptcy, was good in favour of R., within the statute of frauds. (2) And where a testator directed, that in case his son should carry on his (testator's) trade for the benefit of himself and his mother, his lease and furniture should not be sold, but that the trustees should permit the widow and children to reside in his house, and have the use of the furniture; and the widow and son carried on the trade and became bankrupt, it was held, in this case, that the furniture, &c. was not in the order and disposition of the bankrupts, and did not pass to the assignee; - as it was not in the exclusive possession of the widow, but only as connected with that of her children—and, as it was also a possession connected with title, and dependant in the possession of the bankrupts upon the same trusts, as it would have been subject to, had it remained in that of the trustees of the testator. (3) pro an exe cutor or The same rule also is established in the case of an Exe- Where cutor, or Administrator, becoming bankrupt; for the bankrupt perty they possess in either of those capacities cannot be assigned by the commissioners, so as to defeat those who have a right to follow the specific fund (4); not even if such (1) Winch v. Keeley, 1 T.R.619.; and see Ex parte Byas, 124. win v. Oliver, 1 Burr. 481. Un (3) Ex parte Martin, 2 Rose, 331. 19 Ves. 491. (4) Ex parte Marsh, 1 Atk. 159. (2) Gardner v. Rowe, 2 Sim. & Ex parte Llewellyn, 1 C. B. L. 137. adminis trator. 1 S.346. EXECU Reputed fund consists of money, provided it can be specifically disownership: tinguished and ascertained to belong to the testator, and not to the bankrupt himself. (1) And so, where real estates devolve upon the bankrupt as heir, a specialty creditor of lands come the ancestor may follow the real assets, or their specific to him as produce, in the hands of the assignees. (2) TOR. Where heir. Where wife an executrix. If the bankrupt is the husband of an executrix, the bankrupt's commissioners in this case cannot asssign the testator's ́goods, which are left in the bankrupt's possession; for the wife being possessed of them in auter droit, the husband can have them in no better right (3); and the same, with respect to a bond debt due to her as executrix. (4) So, where the wife of a bankrupt administered to her father, and became possessed as administratrix of his effects, to 'which she and her infant brothers and sisters were entitled; and the husband continued the business of the father for their benefit; Lord Eldon held, that this was not such a possession of the goods by the bankrupt, as could be deemed a leaving them in his order and disposition with the consent of the owner as the infants were incapable in law of giving any consent. (5) Where bankrupt executor as well as Where the bankrupt was executor and residuary legatee, and before his bankruptcy collected in sufficient assets to pay the debts and legacies, and the residue consisted of residuary debts and mortgages due to the testator, Lord Hardlegatee. wicke said, that in such a case, though they could not in law vest in the assignees, as the bankrupt took them in auter droit as executor, yet that the equitable interest belonged to the assignees; and that he would not scruple to let them sue in the bankrupt's name to get in the debts. (6) But where a bankrupt, after obtaining his certificate, (which, however, was subsequently held to have been obtained by fraud) became possessed of leasehold premises, (1) Howard v. Jemmet, 3 Burr. (4) Ludlow v. Browning, 11 Mod. 138. (5) Viner v. Cadell, 3 Esp. 88. (6) Butler v. Richardson, 1 Atk. 213. Amb. 74. as executor and residuary legatee, which he mortgaged, Reputed ownership: and afterwards assigned the equity of redemption to another EXECU person; and the deed recited, that the assignment was TOR. made for the purpose of paying the debts of the testatrix ; and the assignee of the equity of redemption took an assignment of the mortgage; the claim of the latter was held preferable to that of the assignees under the commission; as they could only be entitled to the rights of a residuary legatee, and a residuary legatee is bound by an assignment made by the executor for a valuable consideration. (1) Where, however, a bankrupt, who was entitled to take Where a out administration to the effects of an intestate, neglected person entitled to to do so, but took possession of the goods and remained adminisin possession of them for a period of twelve years, it was tration, reheld, that this was a case of reputed ownership, and that possession the goods passed to his assignees. (2) mains in several years. SECTION VI. Of Property fraudulently delivered in contemplation of Bankraptcy. (And see as to a fraudulent or voluntary Conveyance, ante, 71. 365.) The voluntary delivery, or disposal, by the bankrupt of any part of his property, in contemplation of bankruptcy, either to defeat the claims of his creditors generally, or to favour one in preference to others, is held to be fraudulent and void. (3) This doctrine Lord Ellenborough has designated as an excrescence upon the Bankrupt law; under which it was originally considered, that the acts of a trader only subsequent to his bankruptcy were strictly void (4)· (1) Bedford v. Woodham, 4 Ves. 40. note (b.) (2) Fox v. Fisher, 3 B. & A. 135. (3) B. & P. 584. 11 East, 260. Property fraudu lently de livered. Transfer by bank and with out con void. the act of bankruptcy being held to draw the line of separation, between that property which might be disposed of by the bankrupt, and that which vested in the assignees. But it occurred to those who presided in the courts, that it was unjust to permit a party, on the eve of bankruptcy, to make a voluntary disposition of his property in favour of a particular creditor, leaving the mere husk to the rest; and, therefore, that a transfer made at such a period, and under such circumstances as evidently shewed that it was made in contemplation of bankruptcy, and in order to favour a particular creditor, should be void. (1) In accordance with this doctrine, therefore, it is enacted rupt, being by the 73d section of the new statute, that if the bankinsolvent, rupt, being at the time insolvent, shall (except on the marriage of any of his children, or for some valuable consideration, sideration) have assigned or transferred to any of his children, or any other person, any goods or chattels, or have delivered or made over any bonds, bills, notes, or other securities, or transferred his debts to any other person, or into any other person's name, the commissioners may, in such case, sell and dispose of the same in the same way, as of the bankrupt's other property. (2) As to dealings two months before commis sion. As to gift of money to a child for his mainte nance. But by section 81. all dealings and transactions with any bankrupt, bona fide made and entered into more than two calendar months before the date and issuing of the commission, are declared to be valid, notwithstanding any prior act of bankruptcy, provided the person so dealing with the bankrupt had not at the time notice of any prior act of bankruptcy. It was formerly held by Lord Northington, that a gift of money to a child, for his maintenance and subsistence in the world, could not be supported against creditors; for that no man had such a power over his own property, as to defeat his creditors in the disposition of it, unless for good (1) 1 Star. 89. (2) This section is taken from the 1 Jac. 1. c. 15. s. 5., but the words in italics were not in that statute. |