upon and sold under judicial process against him: provided, that when any bankrupt shall have an insurance policy which has a cash surrender value payable to himself, his estate or personal representative, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated and continue to hold, own and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings; otherwise the policy shall pass to the trustee as assets." In respect to these provisions we agree with the views of Judge Shiras as expressed in Re Lange (D. C.) 91 Fed. 361, that section 6 "is the declaration of the general purpose of congress to secure to bankrupts the exemption provided for by the laws of the state in which they reside, but that this general purpose is limited by the subsequent clause of section 70, which declares the rule to be applied with respect to a named and particular kind of property, to wit, policies of insurance having a surrender value payable to the bankrupt or his estate. The fact that this special clause is preceded by the word 'provided' does not in any sense limit the force thereof. Thus, in Railroad Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377, it is said: It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them to precede their proposed amendments with the term "provided," so as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail; thus having no greater signification than would be attached to the word "but" or "and" in the same place, and simply serving to separate or distinguish the different paragraphs or sentences.' ing to the words used in section 70 their usual and fair import, they clearly declare that policies of insurance of the character of that in issue in this case pass to the trustee as part of the assets of the bankrupt; and, as these words deal with a specific matter, they must be construed to be a limitation upon the general declaration with respect to exemptions found in section 6." It will be seen that the clause of section 70 above quoted does not include policies of insurance payable to the wife, children, or other kin of the bankrupt, but is limited to policies the proceeds of which are payable to the bankrupt himself, his estate, or personal representatives. The enactment does not deprive the family of a debtor of the protection which he may have secured to them in taking out policies for their benefit payable at his death, but it does prevent debtors from availing themselves of the opportunity of making investments for their own benefit in the form of endowment policies, or policies payable to themselves, and holding the same, while seeking a discharge from their debts through the bankrupt act. If there is anything unjust or unwise in this, which, however, we are unable to see, the remedy is with congress alone. The judgment is affirmed.

(104 Fed. 873.)

RICHARDSON v. WOODWARD et al.

(Circuit Court of Appeals, Fourth Circuit.

No. 349.

November 8, 1900.)

1. BANKRUPTCY-EXEMPTIONS-CONSTRUCTION OF STATUTES.

Courts of bankruptcy, in determining the claims of bankrupts to exemptions under state laws, will follow the construction placed upon such laws by the highest court of the state, so far as they have received a construction, and beyond that will apply to them the general, established rules of construction.

2. SAME-HOMESTEAD EXEMPTIONS-MARRIED WOMEN.

Under Const. Va. art. 11, which secures to "every householder or head of a family" a homestead exemption not exceeding in value $2,000, and provides that it shall be "liberally construed to the end that all the intents thereof may be fully and perfectly carried out," a married woman who holds the title to the property, although living with her husband, is entitled to claim the exemption, as against her own creditors, where she has been trading as a feme sole. She is the head of a family, either alone or jointly with her husband, for homestead purposes.

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Virginia, in Bankruptcy. Mrs. Marian H. Richardson, a married woman,' conducted a mercantile business at Plumpoint under the style of J. L. Richardson, Agent. J. L. Richardson, the agent, was her husband. The family consisted of the husband, the wife, and a daughter 13 years old, all of whom resided in a house owned by the wife. Mrs. Richardson was the postmistress at Plumpoint, and the post office was kept in the store, and managed by the husband, who conducted the business. Previous to entering into this business J. L. Richardson was a clerk for R. E. Richardson, and Mrs. Richardson boarded her husband and the other clerks of R. E. Richardson. Just when J. L. Richardson ceased to clerk for R. E. Richardson, and opened business in his wife's name, does not appear; but about the 10th of May, 1898, Mrs. Marian H. Richardson made an assignment for the benefit of her creditors, and closed the business. She and her husband were both out of business from this time until about September, 1898, when J. L. Richardson again commenced business in the same house as agent for T. J. Richardson, his brother. During all the time he was conducting the business for his wife, while he was out of business, and also while conducting business for T. J. Richardson, J. L. Richardson carried passengers back and forth from Plumpoint to the station, and money made from this and other sources was used to aid his wife in supporting his family. The goods conveyed in the assignment did not pay off the creditors of J. L. Richardson, Agent; and on the 5th day of January, 1899, Mrs. Marian H. Richardson filed her petition praying to be adjudged a bankrupt, and on the next day the order of adjudication was entered. Afterwards J. L. Richardson filed a petition in bankruptcy, and claimed all his property under what is known in Virginia as the "Poor Debtors' Law" (section 3650 et seq., Code Va.), which exempts certain chattels to "a householder or head of a family." Marian H. Richardson filed an amended petition, and claimed her real property under what is known as the "Homestead Exemption Law," which exempts to a householder or head of a family $2,000, free from levy, garnishment, or distress. The title to the real estate is in the wife, Marian H. Richardson; and the husband testified that the wife managed the business of the family, and had always been regarded as the head of the family since their marriage, and he was an assistant or helpmate in getting along; that she was postmistress, took boarders, sewed, and was a dressmaker. The petitioner, on examination, testified that she was a householder and head of a family, and she supported the family by the income from the store conducted by her husband as her agent, and other

Sources.

R. T. Lacy and John A. Lamb, for petitioner.

Isaac Diggs, for respondents.

Before GOFF and SIMONTON, Circuit Judges, and PURNELL, District Judge.

PURNELL, District Judge (after stating the facts as above). The only question presented and argued is whether, being a married woman living with her husband, petitioner is entitled to the homestead exemption as "a householder or head of a family" as provided by the constitution and laws of Virginia. No question of procedure is involved, as to whether the bankrupt had properly set up a claim for the exemption. Section 6 of the bankruptcy act, approved July 1, 1898, provides:

"This act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months, or the greater portion thereof, immediately preceding the filing of the petition."

The intention was to adopt the state laws governing exemptions. Hence the courts of bankruptcy will look to, and be governed by, the constitutions, statutes, and decisions of the several states and territories, in deciding who is entitled to exemptions, and the amount and species of property to be exempt. A bankrupt is entitled to the same exemptions as if proceeded against as a debtor under the state law, and none other. "Shall not affect" means shall not enlarge or diminish. In determining these exemptions the bankrupt courts will follow the construction given the state laws by the highest courts of the state the statute of which is involved. The decisions to this effect are numerous and uniform. But where there is no construction of a state law by the state courts, or there is a conflict of construction, and a proper case is presented, involving a construction of state constitutions or statutes, the court of bankruptcy will, as other courts of the United States do, give it a construction to carry out the purport and intent of the act of congress; and section 2, subd. 11, provides that the courts of bankruptcy shall determine all the claims of bankrupts to their exemptions. Otherwise, they will follow the interpretation of the state courts. Marly v. Railroad Co., 146 U. S. 162, 13 Sup. Ct. 54, 36 L. Ed. 925; Provident Sav. Inst. v. Massachusetts, 6 Wall. 630, 18 L. Ed. 907; Randall v. Bingham, 7 Wall. 541, 19 L. Ed. 285. It appears, was admitted in the argument, and is stated by the district judge, that the courts of Virginia have not considered or decided the question involved in the case at bar. These courts have construed the constitution and statutes referred to, but not as bearing upon or involved in this question of homestead exemptions. Had they done so, this court would follow their interpretation. In the absence of such decisions, this court must determine the claim of the bankrupt to exemptions, not upon any supposition of how the state courts would probably decide, but according to established rules of construction. The husband does not claim the homestead exemption. The poor debtor's exemption of specific articles of per

sonal property, which he has claimed, is provided for in a different statute, and can in no way affect a decision of the question under consideration. That is a personal property exemption, personal to the debtor. It is founded on a different policy.

The general rule is that exemption laws should be liberally construed. The constitution of Virginia (article 11, § 7) emphasizes the rule, and makes it more specific, by providing, "The provisions of this article shall be construed liberally to the end that all the intents thereof may be fully and perfectly carried out." What was the legislative intent in the adoption of article 11 of the constitution of Virginia, and the acts of assembly in pursuance thereof? "All the intents" to be fully and perfectly carried out? Homestead laws are enacted as a matter of public policy, in the interest of humanity, that, though a citizen may be overtaken by reverses of fortune, he and those of his household shall not be homeless, without shelter, raiment, and food. The debtors' prison and attendant evils meet with little favor in modern legislation. The policy of the law is that families shall not be deprived of shelter and reasonable comforts. The state is concerned that the citizen shall not be devested of the means of support and reduced to pauperism. Thomp. Homest. & Ex. p. 1; Wap. Homest. pp. 3, 4, and cases cited. The exemption is intended for the family. The decisions in Virginia do not controvert or differ from all the other authorities on this point; for Judge Staples, in delivering the opinion of the court in Shipe v. Repass, 28 Grat. 716, says:

"No one can look into the provisions of our constitution and the adjudicated cases of other states, and fail to see that the primary object is to provide for the family."

This policy is well stated in Wap. Homest. p. 4:

*

"The conservation of family homes is the purpose of homestead legislation. The policy of the state is to foster family homes, as the factors of society, and thus promote the general good. To save them from disintegration and secure their permanency, the legislator seeks to protect their homes from forced sales, so far as it can be done without injustice to others. ** Families are the units of society, indispensable factors of civilization, the basis of the commonwealth. Upon their permanency in any community depends the success of schools, churches, public libraries, and good institutions of every kind. The sentiment of patriotism and independence, the spirit of free citizenship, the feeling of interest in public affairs, are cultivated and fostered more readily when the citizen lives permanently in his own castle, with a sense of its protection and durability."

The reverse effect would be produced by a sale of the homestead and destruction of home ties. Founded, therefore, on sound public policy, the homestead is intended for the family. It is not a “poor law."

Article 11 of the constitution of Virginia secures, in addition to the articles now exempt, etc. (those claimed by the husband), to "every householder or head of a family" an exemption not exceeding in value $2,000, to be selected by him. The personal pronoun "him" has no bearing, as it may be construed "her"; for section 5, subd. 13, Code Va., provides that "a word importing the masculine gender only, may extend to and be applied to females as well as males." Petitioner is a householder, for the title is in her; and

the words "or head of a family" seem to be qualifying words, for it is conceded that an unmarried man could not, under this provision, claim the exemption, nor could one not a householder do so. The provision might, therefore, be read "every householder who is the head of a family," which, in the light of the decisions, seems to be a proper paraphrase of the language. The husband could not claim the exemption. The title is in the wife, and he is not the householder. If, then, the wife cannot claim it, the primary object of the constitution, as stated by Judge Staples,-to secure a homestead for the family,-is defeated, and the provision of section 7, art. 11, of the constitution is inoperative. The article is not "liberally construed to the end that all the intents thereof may be fully and perfectly carried out."

The husband is generally and for many purposes the head of the family. He owes it as a moral duty to support his wife and chil dren. A failure to do so is in many jurisdictions made a crime. He may say where they shall reside, but the home provided must be suitable, or the wife would be justified in leaving him,—if the place is not suitable. Hutchins v. Hutchins, 93 Va. 71, 24 S. E. 903. This was a divorce case, and in no way involved the question of homestead. The records of the courts show that husbands do not always discharge this and many other duties incumbent upon them. When he fails in these moral and legal obligations; when an intelligent, active, industrious, frugal woman finds she has married a man who, instead of coming up to the standard of husband, is a mere dependent, who acknowledges that he is only a helpmate to his wife, obeys her instructions, pours his little earnings into her lap, acknowledges her to be and to have always been the head of the family, and leaves to her its support,-it would be contradictory of fact and an absurd construction of law to say he, and not she, is the head of the family, and deny to her the benefits intended for the family out of her separate estate, property she has accumulated, because the title is in her and she lives with her husband. This would seem to defeat instead of construing the law "to the end that all the intents thereof may be fully and perfectly carried out." While there are no decisions on the question under consideration, an authority on state law, whose opinion is entitled to great respect, not only within but beyond the limits of the state, in discussing this question, says:

"A married woman with separate property and a family may, it seems, claim the privilege of homestead; but she and her husband can have but one exemption between them." 4 Minor, Inst. pt. 1, p. 1007.

And for this Thomp. Homest. & Ex. § 64, pp. 220–226, and cases cited, are quoted as authority. To the same effect is Wap. Homest. p. 63. This last authority says:

"The law recognizes husband and wife as the united head of their family for homestead purposes. It allows either to own the property upon which the homestead privilege of both is based. It allows either to claim the benefit when the other does not."

Under the Code of Virginia many of the disabilities of a married woman have been removed by statute, and she is entitled "to hold,