Page:Federal Reporter, 1st Series, Volume 9.djvu/47

 32 TBDBBAL REPORTER. �for his life, the reversion being in her or her heirs. Now, ont of this estate of the husband the statuts carves a portion which it exempts from execution, and that portion does not pass to an assignee in bank- ruptcy ; not beeause of any peculiarity in the estate itself as being unassignable, but beeause the bankruptcy laws have in terms declared that property so exempt shall not pass to the assignee. It cannot, then, I think, be successfully claimed that the portion which we may call a surplus remaining af ter the wife's death is also exempt. �The next argument to be eonsidered is that the estate now enjoyed by the husband is subsequently acquired property coming to him on the death of his wife, happening since the petition in bankruptcy was filed. This, to my mind, involves a total misapprebension of the nature of the estate of tenancy by the curtesy, and can only be sustained on the theory that the statute bas ereated a new kind of estate for the husband in Iiis wife's lands, or, rather, two estates. One of these, which he enjoys during her life, and in the enjoy- ment of which he was when the petition in bankruptcy was filed, is claimed as exempt property; and, as to the other, that it was ereated for him, or was called into existence by the death of the wife happening since the bankruptcy. During his wife's life this lat- ter estate, it is argued, was a mere possibility which did not pass. The case of Jackson v. Middleton, 52 Barb. 9, is very much relied on to sustain this position. It should be read in connection with Moore V. lAttel, 40 Barb. 488 ; 3 Am. Law Eeg. (N. S.) 144, where the same deed was construed. There was a deed to John Jackson for his life, and after his death to his heirs and their assigns. It was held that during the life of the life tenant the heirs had "an alienable contin- gent estate in remainder," and that this estate, under a New York statute which subjected "lands, tenements, or hereditaments" to exe- cution, was not liable to that writ. But a tenancy by the curtesy, in my judgment, bas no sort of analogy to such an estate as the one mentioned in that case. If, however, this be incorrect, it is a suffi- cient answer to say that our bankrupt statute is much broader, and vests in the assignee all the estate, real and personal, of the bank- rupt. Eev. St. § 5044. Krumbaar v. Burt, 2 Wash. 406, is also relied on, where it was decided that, under the act of 1800, possibili- ties did not pass. But our later acts are more enlarged in their operation ; and even under the old acts this case was not approved, but overruled. BelcherY. Burnett, 126 Mass. 230; Comegys v. Vasse, 1 Pet. 193, 218; Vasse v. Oomegys, 4 Wash. 570; Nash v. Nash, 12 AUen, 345. Under the old English acts, which were "very darkly ��� �