May v. Wannemacher.

tiff never proved his claim under the assignments to Clay, or in any manner recognized or assented to the said assignments, or to the action of Clay under the same, or to the doings of the other creditors in regard to said assignments. Noah Sturtev int died before this action was brought.

The Superior Court discharged the trustee, and the plaintiff appealed.

W. A. Field, for the plaintiff.

C. A. Welch, for the trustee.

WELLS, J. The St. of 1836, c. 238, having been repealed, this case is not affected by any considerations arising from that statute, or from the general policy of the insolvent laws of Massachusetts. National Mechanics' & Traders' Bank v. Eagle Sugar Refinery, 109 Mass. 38.

Independently of those laws, it has always been held that voluntary assignments by a debtor, in trust for the payment of debts, and without other adequate consideration, are invalid as against attachment, except so far as assented to by the creditors for whose benefit they were made. If assented to by creditors, such assignments are good at common law, and will protect the property or fund from attachment to the extent of the amount due to creditors thus assenting; unless, by the conditions of the assignment, it is made to take effect only upon the assent of all, or a prescribed number of creditors.

The assent of creditors will not be presumed on the ground that it is apparently for their interest; but must be shown by some form of adoption or affirmative acquiescence. Russell v. Woodward, 10 Pick. 408, 413.

In cases of assignment by a tripartite instrument, it is gener ally necessary that creditors should execute the instrument in order to give it full effect, because such is the intent with which it is made. But when this is not required by the form of the instrument of assignment, it is only necessary that creditors should give such assent to its provisions as will recognize and affirm the acceptance and possession of the property by the assignee, as made and held for their benefit and in their oehalf, in accordance with the terms of the assignment. Russell v. Woodward, 10 Pick. 408. Everett v. Walcott, 15 Pick. 94.

May v. Wannemacher.

If creditors present their claims to the trustees for allowance for the purpose of a distribution, in accordance with the terms of the assignment, they thereby assent to the trust; and the trustee thereafter holding the property in their behalf holds it upon a legal consideration, and his title is perfected. The effect is the same if they present their claims to commissioners or other persons appointed for that purpose, in accordance with the terms of the assignment. And it can make no difference, in this particular, if those persons are appointed under provisions of local public law, with reference to which the instrument of assignment was made.

The foregoing propositions meet and cover the present case. The assignment was made with reference to the laws of Pennsylvania. It is agreed that, by those laws, such an assignment is recognized as valid; and the proof and allowance of claims, and the distribution, are conducted as judicial proceedings. Creditors, to an amount largely exceeding the total assets, have presented and proved their claims and accepted dividends upon them, thereby signifying their adoption of the assignment for their ben

efit.

The question is made how far the courts of this Commonwealth are bound to recognize assignments of this kind, made in a foreign jurisdiction, when set up against our own citizens claiming to hold, by attachment, property of the insolvent debtor found within this jurisdiction.

Such assignments made by commissioners of bankruptcy, or by judicial or legislative authority merely, without the act and assent of the debtor, are not held as binding upon the courts of another state. Taylor v. Columbian Ins. Co. 14 Allen, 353.

An assignment made by the debtor himself in another state, which, if made here, would be set aside for want of consideration or delivery, or as fraudulent, or contravening the policy of the law of this Commonwealth, will not be sustained here against an attachment, although valid in the state or country where made. Zipcey v. Thompson, 1 Gray, 243. Fall River Iron Works Co. 7. Croade, 15 Pick. 11. Ingraham v. Geyer, 13 Mass. 146. O born v. Adams, 18 Pick. 245.

Harvard College v. Head.

In each case above mentioned, to sustain the assignment would be to give force and effect here to the foreign law, which has none suo vigore. That is a matter of comity, and not of right. But in each case the assignment is always sustained so far as it affects property which was at the time within the jurisdiction where it was made; Benedict v. Parmenter, 13 Gray, 88; Wales v. Alden, 22 Pick. 245; and also as against all citizens of that jurisdictiɔn, even when seeking a remedy here against property found here. Rhode Island Central Bank v. Danforth, 14 Gray, 123. Martin v. Potter, 11 Gray, 37. Richardson v. Forepaugh, 7 Gray, 546. Whipple v. Thayer, 16 Pick. 25. Daniels v. Willard, Ib. 36.

This assignment is made by the debtors themselves. No fraud s shown or suggested. It in no respect contravenes the policy of aw as established in this Commonwealth. It is assented to by creditors sufficiently to give it a valid consideration and full legal effect, if it had been made here. The effect of that assent does not depend at all upon the judicial proceedings in Pennsylvania. Giving no force whatever to the judicial authority of those proceedings, or to the local law, we find in the acts of the parties sufficient to constitute a legal and valid assignment, which should be held to be good wherever made, and effectual to pass the rights of the debtors even to property not subject to the local laws of Pennsylvania. Means v. Hapgood, 19 Pick. 105. Newman ▾ Bagley, 16 Pick. 570. The judgment therefore must be Trustee discharged.

PRESIDENT AND FELLOWS OF HARVARD COLLEGE vs. JOHN A. HEAD & another.

A man, in consideration of marriage, assigned to his intended wife all his right and interest in an annuity, to have and to hold to her during the continuance of the marriage; and afterwards married her. Held, that upon a divorce from the bonds of matrimony, granted on her libel for his cruelty, her interest in the annuity ceased.

BILL IN EQUITY against John A. Head and Charlotte E. Head, praying that the defendants might interplead. The case,

Harvard College v. Head.

as it appeared from the agreed facts, on which it was reserved by Chapman, C. J., for the consideration of the full court, was as follows:

The plaintiffs held property under the will of Benjamin Bussey, who died in 1842, and were charged by the will with the payment of an annuity of $1000 to the defendant John A. Head. John A. Head on May 2, 1860, signed, sealed and delivered the following assignment: "I, John A. Head, of West Roxbury in the county of Norfolk and Commonwealth of Massachusetts, being about to marry Charlotte E. Rhoades, in consideration of said marriage, do hereby assign, transfer and convey to said Charlotte E. all my right and interest in and to a certain annuity left to me by Benjamin Bussey in his will: to have and to hold the same to her during the continuance of said marriage; and I hereby authorize and empower the trustees under said will to pay the said annuity to her or her order, as it may become due, and to take and receive her receipt in acknowledgment of such payment." On May 3 John A. Head married Charlotte E. Rhoades, who was the other defendant.

Both the defendants at the time of marriage intended that their domicil after marriage should be at Windsor in the State of Vermont, and had procured a house there to live in. Iminediately after the marriage they went to Windsor, and there lived until the divorce mentioned below.

In 1871 Charlotte E. Head filed a libel in the Supreme Court of Vermont against her husband, praying that she might be divorced from the bonds of matrimony for the reason that he had treated her "with intolerable severity." John A. Head appeared and contested the libel, but the court found that the facts alleged therein were true, and entered a decree of divorce from the bonds of matrimony.

The amount of the property belonging to the parties at the time of divorce, as stated by agreement to the Supreme Court of Vermont, was Land in Vermont, $7000; Shares in the Connecticut & Passumpsic Rivers Railroad Company, $2000; Shares in other corporations, $1064, Stock on farm, $600; Furniture, $1000; Annuity of $1000 tc John A. Head, transferred by him to Charlotte

Harvard College v. Head.

E. Head, in consideration of the marriage of the parties, $5000. The title to the land stood in the name of Charlotte E. Head, but the land was bought with her husband's money, and all the rest of the property, except some of the furniture, belonged to him At the time of the divorce she had in her possession none of the property except some furniture.

The Supreme Court of Vermont passed an order that all right, title and interest of John A. Head in the land "together with all household furniture, and all personal property now in the possession of said Charlotte E. Head, of the property of said John A. Head, but not including an annuity bequeathed to said John A. Head by Benjamin Bussey, or any right thereto, be henceforth the property of said Charlotte E. Head; and that she should hold the shares of the Connecticut and Passumpsic Rivers Railroad Company in trust for her child, whose custody was given to her.

J. Lathrop, for Charlotte E. Head. The assignment passed all the interest of John A. Head. If the habendum is repugnant to the premises it is void, and if it was intended to effect a termination of the estate on the dissolution of the marriage by any cause but death, it is void as against the policy of the law, and the estate is absolute. Cartwright v. Cartwright, 10 Hare, 630; S. C. 3 De G., M. & G. 982. H. v. W. 3 Kay & J. 382. Bean v. Griffiths, 1 Jur. (N. S.) 1045. Wren v. Bradley, 2 De G. & Sm. 49. Grace v. Webb, 15 Sim. 384. Nicholl v. Jones, 36 Law J. (N. S.) Ch. 554, 564. It makes no difference that the clause is in form a limitation. The effect is the same as if the form of a condition were used.

Otis v. Prince, 10 Gray, 581.

Parsons v. Winslow, 6 Mass. 169.

Even if the condition be valid, or if the clause be read as a limitation, yet as the law rendered the further performance of the contract impossible, the estate became absolute. Doe v. Rugeley, 6 Q. B. 107. The Teutonia, L. R. 3 Adm. & Ecc. 394, 412. Slade v. Tomson, 1 Rol. Ab. 451. It makes no difference that the libel for divorce was filed by the wife. Divorce proceedings are criminal in their nature and the public is a party. Barber v. Root, 10 Mass. 260, 265. 2 Bishop on Mar. & Div. §§ 140. 230, 231.