Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1898-01-21
A MINNEAPOLIS DECISION
Which Has an Important Bear
ing on the Kelley Case.

Merrill, who Claimed TO BE Entitled
TO One-Third OF the Estate of Her
bankrupt Husband---A NOIle In the
Charge Of Grand Larceny Against L.
T.. Kelley.
Judge Mitchell has rendered at Mime
apolis decision which is of great import
ance TO the creditors of A. f. 6 l.. E. Kel-
ley. Although the case in which the de-
cision was given did not involve the Kel-
leys it settled question which would have
been raised bad the plaintiff won, and
decision in her favor would have meant
that one-third Of all the real estate held by
the Keleys must be turned over to Mrs.
A. F. and Mrs. L. K. Kelley. This would
have meant, practically, scaling down
of One-third in the assets of A. F.
& L. K. Kelley, as nearly all the pro-
perty in their Lands at the time of begin
ming bankruptcy proceedings was real
estate.
In 1893 d. d. Merrill, being insolvent,
executed to the defendant, pursuant to the
insolvent law of 1881 an assignment of all
his non-exempt property for the benefit of
his creditors. Included in the assigned
property was a large amount of real estate
which the defendant still holds for the
purposes of the trust. Mrs. Merrill did
not join with her husband in the execution
of the assignment. Merrill died in 1895
and the plaintiff, his widow, brings this
action against the defendant for partition
of the real estate, claiming that, under the
statute, she is now the absolute owner of
one undivided third of it free from the pay
ment of any part of the debts of her de-
ceased husband.
Judge Mitchell says the only question
Nd hxy ic nh
claim on the part of the widow is correct,
and continue lowing to their early pro-
fessional education lawyers may be liable
to enter upon the consideration of this
question with certain preconceved impress
sions derived from the doctrines relating to
common law dover (which was not sub
ject to the payment of the husbands
debts), and to fail to give due weight TO
the fact that with us the widows statutory
one-third in the real estate of her husband
is subject in its just proportion with the
other real estate, to the payment of such
debts of the deceased as are not paid from
the personal estate.
'In view of the plain provision of the
statute there can be no question that when
the husbands estate is administered in the
probate court the widows third in his real
estate is subject to the payment of its just
proportion of his debts. Sales of real
estate by the personal representatives for
the payment of debts are not subject to
the widows rights, but convey a complete
title. All that the widow gets in such
case is third of the real estate which is
left after the debts are paid. Every reason
for this applies with equal or greater force
where the husbands entire non-exempt
estate is administered by the district court
in bankruptcy. In the latter case, al
though not physically dead, he is finan-
cially so. If after his discharge he ac-
quires property it is by virtue of what may
be termed a new financial birth, as of the
date Of his discharge.
"In bankruptcy, as in probate, his entire
non-eXempt estate is in court for the pur-
poses of administration and distribution;
and in the one case, as in the other, all the
creditors are, or may become, parties to
the proceedings. The insolvent law con-
tains no provision that the assignment by
the husband shall be subject to the wife's
inchoate right in his real estate and in
our provision of the statute requiring the
wfe's assent in writing to conveyances by
the husband in order to bar her inchoate
interest in the property conveyed have no
application TO general assignment under
the insolvency law for the benefit of cred
itors.
at would result in an anomalous state
of things if the wife is held to have greater
rights when her husbands estate is admin
istered in bankruptcy than when it is ad-
ministered probate. Take the present case
for example. If plaintiffs contention is
correct she is entitled to am absolute one
third of her husbands estate, regardless of
the amount of his debts, and yet if he had
happened to die without making this as
signment and the estate had been admin
istered by the probate court she would, in
all probability, been entitled to nothing ex-
cept the homestead, if there was one. Any
such rule would be attended with grave
practical evils and would tend to defeat to
great extent the purposes of the insol-
vency law"