In re Becker, 106 F. 54

106 F. 54 | N.D.N.Y. | 1901

CGXE, District Judge

(after staling the facts), it has now been judicially determined that at the date of the petition the bankrupt had an interest of at least $1,500 in four policies of insurance upon his own life, aggregating $11,000, upon which the annual premiums amounted io $525. It is incredible to suppose that he had forgotten such important documents and that the omission from the schedules was through inadvertence. This court lias recently had occasion to consider a case of honest mistake growing out of the failure to report policies of life insurance. In re Adams (D. O.) 104 Ifed. 72. If the facts were at all analogous Ore court would, of course, resolve the doubt in favor of the bankrupt, but a casual comparison of the two cases will demonstrate the radical difference upon the crucial point. Here the bankrupt’s interest is not vague, indefinite and uncertain, but clear, obvious and substantial. His schedules show no assets of any kind. His interest in these policies was the only property he owned. If he outlived the tontine period of 20 years the surrender value was due' to him and not to his wife. Upon two of the policies he could realize in two and three years respectively. To find that he did not know of the existence of this interest is to assume that he was deficient in the most rudimentary mental processes. The fact that the- amount was not then ascertained is immaterial as it was his duty to schedule all his property. Bankr. Act, § 7a (8). That he failed to report these policies is conceded, that he did this knowingly cannot be successfully disputed and that he has since resisted the trustee in his efforts to realize upon the policies is established beyond question. The inevitable conclusion would seem to follow that the concealment was with the intent to prevent the property from reaching his creditors. The omission knowingly of property from the schedules and the verification thereof constitutes a false oath within the meaning of section 29b (2) of the act. In re Lewin, 4 Am. Bankr. R. 636, 103 Fed. 852; In re McNamara, 2 Am. Bankr. R. 566, 579; In re Lowenstein, 2 Am. Bankr. R. 193, 106 Fed. 51; In re Hirsh, 2 Am. Bankr. R. 715, 724, 96 Fed. 468; Coll. Bankr. (3d Ed.) 167; In re Alderson, 3 Nat. Bankr. News & R. 189, 98 Fed. 588. In Re Wood (D. C.) 98 Fed. 972, the bankrupt omitted from his schedules a vested remainder of doubtful value which he held in his father’s estate. Although the burden is generally upon the creditors to prove their objections it was decided that when a material omission is shown it is incum-oent upon the bankrupt to explain the transaction. It was held further that the failure to list the interest, coupled with the bankrupt’s testimony that he took nothing under his father’s will, was a fraudulent concealment which forfeited a discharge.

The court is constrained to hold that both the objections as above stated have been established. If the bankrupt had omitted to report to the trustee a note or mortgage on which $1,500 was due, or if he had concealed that sum in cash, there would probably be perfect accord between counsel as to the mala fides of the transaction. How is the situation changed because the sum was due the bankrupt on an insurance policy rather than a note or mortgage? A discharge is intended to relieve misfortune, but it must be misfortune coupled with absolute honesty. It is the reward which the law grants to the bankrupt who brings his entire properly into court and lays it, without reservation, at the feet of his creditors. This much the law demands. Where it is evident that he is scheming to be relieved of his debts while holding property which should be applied to their payment, he is not entitled to consideration from the court of bankruptcy. The discharge is denied.