95 P. 109 | Ariz. | 1908
— It appears from the petition filed in this case that in July, 1904, P. J. Delehanty died intestate in Cochise county, leaving an estate of real and personal property. His heirs at law and next of kin are a sister, Mary Power, and a brother, Walter Delehanty. The sister was appointed administratrix of the estate. On October 5, 1904, the brother, then a resident of Ireland, was, upon a petition of his creditors, adjudicated a bankrupt by the high court of justice in Ireland, king’s bench division, in bankruptcy. By choice of the creditors John Arthur Maconchy and Alexander ' Knox Mclntire were appointed official assignees in bankruptcy. On October 25, 1904, the bankrupt executed an instrument in writing by which he undertook to assign to the said official assignees in bankruptcy all his share in the real and personal estate of P. J. Delehanty, upon trust to be held by them as such assignees, and to be dealt with by them as a
The trial court sustained the objection to the admission in evidence of the assignment upon the ground that it appeared therefrom that it was an involuntary assignment in bankruptcy, made under the laws of a foreign country, and therefore did not operate to convey title to real and personal property in this territory. While the assignees claim that neither from the instrument itself nor by the pleadings is it made to appear that it was not voluntarily executed, we shall, for the purposes of this opinion, treat it as having been made under an order of the foreign bankruptcy court, and hence involuntary. Therefore the matter for our determination is the effect we will give to a foreign involuntary assignment in bankruptcy upon property in this territory. The question is one that has been before the courts of this country in many eases and from almost the beginning of our national existence. The English rule is to give full effect to such transfers of personal property, but as early as 1809 Chief Justice Marshall,
In nearly all of the cases in which the question has arisen the rights of attaching creditors have been involved. Here no such rights are involved. The contest is entirely between the bankrupt and his assignees. No ease has been brought to our attention in which effect has been refused the assignment of personal property where it did not deprive creditors pursuing their rights in the local forum of a security, or violate the public policy of the state. Where effect is given, it is not upon the theory that the assignment operates to convey the title, but is given under the general rule of comity. Oakey v. Bennett, 11 How. 33, 13 L. Ed. 593; Willitts v. Waite, supra; Happy v. Prickett, 24 Wash. 290, 64 Pac. 528. Professor Minor, in his recent work on Conflict of Laws, at page 322, thus states the principle: “But it does not follow, because ex proprio vigore the assignment has no extraterritorial
While no effect can be given the assignment so far as the real estate is concerned, we see no reason why effect should not be given to it so far as it relates to the distributive share of personalty. There are no local creditors to be protected. No policy of this territory will thus be violated. On the contrary, we think such action will conform to the present policy of the country, since, by the national bankruptcy act, our citizens, upon being adjudged bankrupts, are required to execute to their trustees transfers of all their property in foreign countries (c. 5, see. 7, Act July 1, 1898, c. 541, 30 Stat. 548 [U. S. Comp. Stats. 1901, p. 3425]); and we thus seek, through the comity of foreign nations, to secure for the creditors of our bankrupts the rights asked by the assignees here.
We think, for the foregoing reasons, that the trial court erred in refusing to admit the assignment in evidence, and in denying the motion for a new trial. The judgment is therefore reversed, and the cause remanded for a new trial.
KENT, C. J., and SLOAN and NAYE, JJ., concur.