The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-12-08


his creditors at that time. Tn,
estate was IN course of administra-
ton in the probate court His IL
terest was only en- equitable lIf'
interest OF uncertain amount. [
was not subject to execution. ID
could il even have ben sold FOL
sufficient 70 pay the debts? Being
only O life interest (which itself i
Of uncertain duraiioul in the net
income latter payi1g the uncertain
expenses OF the management OF the
estate and Of the education OF
the children of oue-fourth Of
the residue latter certain SPECIFIC
devises and bequests) of an estate OF
uncertain amount, in course of ad
miuistration, aud with numerous
conditions annexed to his interest,
the effect of which would be, to say
the least, uncertain until adjudicated
upon, who would be willing TO pur-
chase it, and for how much No
attempt has been made on the part
of the creditors to show that W. II.
Aldrich could by any possibility, not
to say probability, have met his en-
gagements either IN money or pro-
perty, or in any other way at the time
he petitioned to be adjudged bank
rupt, and yet it IS well settled that
insolvency means only present in
ability to pay.
No attempt has been made to show
that the alleged bankrupt's inability
to pay has been the result of his own
wrong. On the contrary, the credit
! ors knew that he was without means,
and they gave him credit upon his
expectations of what he was to re
ceive under his fathers will, the time
to receive which had not, without
any wrong on his part, then arrived.
1t is not claimed, and it certainly has
not been proved that In obtaining
credit upon these expectations, the
debtor acted fraudulently. If that
can be shown it will be good ground
for refusing the debtor his discharge.
Nor does it appear that the debtor,
in seeking bankruptcy, had any
wrongful motive, other than that, if
any, which may be inferred from the
fact, if fact it be, that his creditors
would thereby be placed in a worse
condition than they otherwise would
be in. The debtor claims to have
taken the bankruptcy proceedings In
order to protect himself from the
attacks of his creditors, his house
hold furniture having been levied
upon in execution at the instance of
one Of them. This was reason enough
to justify his course of action, and no
other reason or motive, if any ex-
listed, has been shown either di-
rectly or inferentially. It does not
hak ,oc,,lA OE HI
action, whether right or wrongful,
he will reap any other advantage
than that to which he is lawfully en-
titled under the bankruptcy act, or
that his creditors will suffer any
injury. IF the conditions annexed to
his interest by the terms of the will
are IN the nature of limitations, his
interest would be determined either
by his bankruptcy or by an attach
ment by Judgment creditor. In
either case neither he nor his credi
tors could reap any benefit from it.
On the other hand, if the conditions
are void as being merely conditions
repugnant to the estate devised, his
interest may be reached either by his
assignee in bankruptcy or by judg-
ment creditors. In either case the
creditors receive the benefit of it.
See GraUes .. Dolphin, l Sim, IS;
Brandon q. Robinson, Is Yes, 429;
Rockford q. Hackman, 8 Hare, Ats;
Nichols q. Eaton, 81 us, 716; TIEItng
hast .. Bradford, r.. l., POS; 2 Jarm.
Wills, 23-37; Perry, Trusts, Secs 1856,
555. Nor does it appear that judg' |
ment creditor W ouid be In any better |
position than an assignee by reason |
of the property being in another |
jurisdiction (Csl;fornia)' If the prop |
erty can be reached at all, it can be
reached, at least so far as it may be
personal property, by the assignee,
of his authority as an officer of the
court, but because he has the title to
the bankrnpt's property, which has
been transferred to him from the
bankrupt by operation of law. (See
3 Parsons, Contr., Oh. Nil, Section
81, and so far as the property may
be real estate, if any further convey
ance should be required, the bank
rupt must give it or be refused his
In which case the creditors
may proceed as they think best. In
this particular case, 1t would seem
that the assignee might act to better
than the individual credi
tors, inasmuch as the several debts
are so small that it could
scarcely pay the creditors sever
ally to proceed in a foreign
Jurisdiction. But whether for the
advantage of the creditors or not,
they cannot prevent the debtor from
becoming a bankrupt, unless they
can show either that he is solvent or
that he is acting in a manner which
the law deems wrongful. This they
have not shown.
The order appealed from, revok-
ing, on the petition of the creditors,
the order adjudicating w. II. Aldrich
a bankrupt should, therefore, be re-
versed and the original order should
stand.
F. Nj. Hatch for the creditors; A.
P. Peterson for the bankrupt.