Page:Federal Reporter, 1st Series, Volume 9.djvu/44

 IN RE m'kenna. ' 29 �Hammond, D. J. The proviso to the act repealing the bankruptcy laws makes ample provision for continuing the jurisdiction of the court over all cases pending at the time of the repeal; and there is no force in the objection that the court h'as no jurisdiction "since the repeal of the act to establish a uniform System of bankruptcy." Act June 7, 1878, c. 160, (20 St. 99;) Re Ricliardson, 2 Story, 571; Re Ankrim, 3 McL. 285 ; Carr v. Hilton, 1 Curt. 231 ; Re King, 3 Fed. Eep. 839 ; Re Hyde, 6 Fed. Eep. 687. That a petition like that filed in this cause is the proper remedy for the assignee, and not a ple- nary suit by bill or an action at law, seems well established by the authorities. Re How, 18 N. B. E. 565; Re Ettinger, Id. 222; Re Ketchum, 1 Fed. Eep. 840 ; Re Nichols, M. 842 ; Re Moscs, Id. 845 ; Re Campbell, 17 N. B. E. 4; Re Swearinger, Id. 138; Re Peltasohn, 16 N. B. E. 265; S. C. 4 Bill. 107; Re Benson, 16 N. B. E. 377 ; Re Betts, 16 N. B. E. 637; Re Boothroyd, Id. 368; Re Thompson, 13 N. B. E. 300; Re Wright, 8 N. B. E. 430; Re Speyer, 6 N. B. E. 255; Re Kempner, Id. 521; Re Pierce, 7 Biss. 426; Re Smith, 2 Hughes, 307. �Whether the estate that the bankrupt had in the land of bis wife at the date of the filing of bis petition in bankruptcy passed to his assignee depends upon a proper construction of the Tennessee statute. T. & S. Code, §§ 2481, 2482. At common law he was, on that date, a tenant by the curtesy initiate, and. about the character of that precise estate there has been much conflict in the books, and much confusion. I dp not, itom authorities consulted, find that it has been ever settled or agreed upon whether the husband, before or after issue born, is in possession of his estate by virtue of this ten- ancy, or that whieh he has by virtue of the marriage, considered irre- spectively of the birth of issue, or the possibility of such birth. Often it is unimportant whether he is in by the one or the other, but in the conflicts that arise over marriage settlements, grants to the wife by deed or will, the statute of limitations, dissolutions of the coverture by divorce, and the effect of conveyances by the husband and the wife, one or both, the nature of this tenancy by the curtesy initiate has been freely discussed, but in some respects remains unsettled. Too much force is sometimes given to the death of the wife, and even to the birth of issue, wben either is thought to originate this estate by the curtesy, and it is sometimes said, as it is argued in this case, that prior to the death of the wife it is a possibility only, — something like the spes successionis of the heir apparent or presumptive to an estate, that does not pass to a voluntary assignee, or to an involun- ��� �