103 F. 783 | D. Mass. | 1900
In tbis case I agree with the referee. Tbe policy has a cash surrender value within the intent of the statute. The fact that this, value is not stated in the policy is imma-' terial. . If in the ordinary course of business tbe bankrupt can obtain cash from the company by a surrender of the policy, his creditors are entitled to the cash. Again, I think the interest of the bankrupt’s trustee is not defeated by the claim of Mrs. Boardman, though I am not required to determine at the present time precisely what Mrs. Boardman’s rights are. In addition to the cases cited by the referee, see In re Diack (D. C.) 100 Fed. 770. In that case the policy was issued by the company which issued the policy in the case at bar. The policy was payable in 15- years to the bankrupt, “should he then survive, or, should he die before, then his wife, Susan M. Diack, if living; if not, then to the said William Diack’s executors, administrators, or assigns.” This is substantially the language used in the Boardman policy. Some of the premiums were paid by Mrs. Diack, and so she was held entitled by the law of New York to a contingent legal interest in the policy, and could not be required to surrender her interest therein. The bankrupt was therefore ordered to execute an assignment to the trustee of his interest in the surrender value of the policy. • The learned judge thus treated the trustee as having some rights in the proceeds of the policy. With this case I agree, rather than with In re Hernich, 1 Am. Bankr. R. 713, if, indeed, the note to that case correctly states Judge Morris’ opinion. If the trustee in this case is entitled to the whole or part of the value of the policy,-he cannot be compelled to deliver it up to the bankrupt. The decision of the referee is therefore affirmed.