JAMES M. HULL, Jr., Trustee, v. MRS. M. J. DICKS.

In January, 1912, L. K. Dicks, a citizen and resident of Richmond county, Georgia, was adjudicated a bankrupt. James M. Hull, Jr., was elected trustee, and on February 5, 1912, took possession of all the property of the bankrupt. Three weeks later L. K. Dicks died, leaving a widow and four minor children. Thereafter the widow applied to the court of ordinary for the year's support to which the family was entitled by virtue of the provision in the Georgia Code (§ 4041) that 'upon the death of any person . . . leaving an estate, solvent or insolvent . . . it shall be the duty of the ordinary . . . to appoint . . . appraisers, . . . to set apart and assign to such widow and children . . . either in property or money, a sufficiency from the estate for their support and maintenance for the space of twelve months. . . .'

Citation issued and thereafter the ordinary duly set apart to the family a year's support to be made out of the estate of L. K. Dicks in the hands of the trustee in bankruptcy. The widow subsequently applied to the referee for an order directing the trustee to pay over the amount so set apart. Her application was denied and that ruling was reversed by the district court. 198 Fed. 293. The trustee took the case to the circuit court of appeals, which certified to this court the following question:

'Where a resident citizen of Georgia has been duly adjudicated a bankrupt and dies after such adjudication, and after the appointment, qualification, and partial administration of the trustee, is the estate vested in the trustee under § 70 of the bankruptcy law of 1898 [30 Stat. at L. 565, chap. 541, Comp. Stat. 1913, § 9654] chargeable under § 8 of the same law, or otherwise, with the allowance for a year's support of the widow and minor children, as provided in the laws of Georgia?' Counsel for the appellant contends that this question should be answered in the negative. He insists that § 81 of the bankruptcy act does not create a right, but, as in this case, merely preserves the right, given by the state law, to have a year's support 'out of the estate' left by the husband and father. It was then argued that as the title to the property had vested in the trustee before the death of the bankrupt, Dicks did not die 'leaving an estate,' and there was, therefore, no estate out of which, under the Code of Georgia, the year's support could be set apart.

This reasoning would be applicable if the widow and children were asserting rights of inheritance under the statute of distribution. Moreover, there would be no answer to the argument advanced if the title, which vested in the trustee, was in its nature like that which would have been acquired if Dicks in his lifetime had made a deed of assignment to the trustee. But such is not the case. For, construing the statute as a whole, it will be seen that while § 702 of the bankruptcy act vested title in the trustee primarily for the benefit of the creditors, there was no exception in favor of the bankrupt himself, and the transfer was also subject to a condition in favor of his family if he died before the proceedings ended. If the bankrupt elected to claim a homestead, the exempt property, even though it had passed to the trustee, would, after identification and appraisal, be turned back into his possession. Chicago, B. & Q. R. Co. v. Hall, 229 U. S. 515, 57 L. ed. 1309, 33 Sup. Ct. Rep. 885. The trustee's title was also subject to the condition that if the bankrupt died during the pendency of the proceedings, the widow and children would be entitled to receive the allowance given them by the laws of the state of his residence. This latter limitation on the trustee's title was in connection with legislation on the subject of abatement.

For the statute seems to assume that, in the absence of a statutory provision to the contrary, the death of the bankrupt would have abated the proceedings. In that event the property, although the title thereto had been previously vested in the trustee, would have been surrendered to the bankrupt's personal representatives, who would then have been in possession of an estate, out of which, under the Georgia Code, a year's support could have been set apart to the widow and children. Congress need not have made any change in the general law, but, as in the act of 1841 (5 Stat. at L. 440, chap. 9), could have allowed the suit to abate on the death of the bankrupt; or, as in the act of 1867 (14 Stat. at L. 522, § 12, chap. 176), it could have permitted, without requiring, an abatement; or, as in the act of 1800 (2 Stat. at L. 27, § 19, chap. 19,), it could have made a mandatory provision that the proceedings should continue if the bankrupt died 'after commission sued out;' or, it could have legislated, as in § 8 of the present statute (30 Stat. at L. 549, § 8, chap. 541, Comp. Stat. 1913, § 9592), where Congress went further than in any of the previous bankruptcy laws and made a universal and mandatory provision that 'the death . . . of a bankrupt shall not abate the proceeding.' That sweepting declaration, however, was coupled with the Proviso 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.'

Section 8 with these two clauses prevents, on the one hand, the loss and inconvenience to creditors resulting from an abatement, while at the same time avoiding the hardship of depriving the widow and minor children of a right to which they would have been entitled if the suit had abated on the death of the husband and father. The statute makes no exception or qualification; after the proceedings have been commenced they are not to be abated by death. And the Proviso clearly indicates an intention to make the preservation of the widow and children's right to the allowance as broad as the prohibition against the abatement of the suit. Inasmuch as the proceedings did not abate if the death of the bankrupt occurred after filing the petition and before the election of the trustee, neither was the right to the allowance lost if the bankrupt died after such election, and at a stage of the proceedings where the title had, by the operation of law, vested in the trustee. For such title, whenever it accrued, was subject to the condition that the assets, in the hands of the trustee, should be charged with the payment of the allowance to which, on the death of the bankrupt, the widow and children were entitled under the laws of the state of his residence.

It is claimed that, under this interpretation, if the bankrupt died after the trustee had wholly or partially administered the estate, the widow and children could still enforce their rights to a year's support out of the bankrupt estate, even if the property had passed into the hands of purchasers. But this loses sight of the fact that the family had nothing in the nature of a lien which, during his lifetime, prevented the bankrupt or the trustee from disposing of his property. What was done by the court, while the bankrupt was in life and a party to the proceeding, was binding upon him, and therefore as effectual to defeat the right to a year's support out of such property as if the sale and distribution had been made by the bankrupt himself, or by his duly authorized agent.

The right to the year's support accrued at the date of the bankrupt's death, and could be enforced out of property remaining in the hands of the trustee,—and then only after the allowance had been duly made in proceedings where he, as representative of the creditor, had the right to be heard.

There has been some conflict in the decisions dealing with the subject (Re McKenzie, 73 C. C. A. 483, 142 Fed. 384[6]; Re Slack, 111 Fed. 523; Re Newton, 122 Fed. 103; Re Seabolt, 113 Fed. 767; Re Parschen, 119 Fed. 976; Thomas v. Woods, 26 L.R.A.(N.S.) 1180, 97 C. C. A. 535, 173 Fed. 586, 19 Ann. Cas. 1080; vacated, 101 C. C. A. 664, 178 Fed. 1005), but the foregoing considerations require that the question of the Circuit Court of Appeals should be answered, Yes.