insolvency. R. L. § 1883, provides that, "if a debtor dies after the filing of the petition by or against him, the proceedings shall be discontinued, and the debtor's estate settled in the probate court like other estates of deceased persons." The words "like other estates of deceased persons" admit of no doubtful construction; they mean just what the language imports; and the simple question is, does the law relating to the settlement of the estates of deceased persons authorize a recovery in this case? R. L. § 2162, authorizes an executor or administrator, when there is a deficiency of assets in his hands, to commence and prosecute to final judgment any action or suit for the recovery of real or personal estate fraudulently conveyed by the deceased. But the property in question was not fraudulently conveyed. The master has failed to find such facts as would justify the court in so holding. The property was transferred for the purpose of securing a debt honestly due and owing from the orator's intestate to the defendants. There is nothing in the law relating to the settlement of estates of deceased persons that declares such a transaction fraudulent, or authorizes an administrator to recover the property. The orator's intestate had a right to give, and the defendants to take, security for the payment of their debt, and the defendants cannot be lawfully deprived of this security, except by insolvency proceedings; and the aid of these proceedings cannot be invoked, because the debtor is dead, and the statute declares that his estate shall be settled "like other estates of deceased persons." They were not divested of their title to the property by the adjudication in insolvency. The question of their right to retain the property is made, by the insolvency law, to depend wholly upon facts found in proceedings subsequent to the adjudication, instituted by the assignee for the recovery of the property or its value. An adjudication of insolvency is not an adjudication that the debtor was insolvent, or in contemplation of insolvency, at the time the conveyance was made, or that it was not for a present consideration, or that the person receiving the transfer had reasonable cause to believe the debtor insolvent, or in contemplation of insolvency, or that the transfer or conveyance was made in fraud of the law relating to insolvency. These questions are all to be determined after the adjudication of insolvency, and before the creditor can be divested of the property, or the assignee made accountable for it. In Lewis v. Bank, 65 Vt., 25 Atl. Rep. 835, it is held that conveyances made in fraud of the law relating to insolvency are not void, but voidable at the election of the assignee. The property in question never came to the assignee as assets of the estate. Property conveyed in fraud of the law relating to insolvency is not assets in the v.27A.no.8-32

hands of the assignee, and he is not accountable for it until there is a recovery, as provided in sections 1860 and 1861. He does not take such property by assignment from the court of insolvency, (R. L. § 1820,) but takes it by recovery in an action authorized by sections 1860 and 1861. The steps necessary to divest the defendants of their property could be taken only by the assignee. They were not taken. The orator has ceased to be assignee, and he must stand upon his rights as administrator of a deceased person's estate, and not upon the rights of an assignee of an insolvent debtor's estate.

2. The master finds that, at the time the chattel mortgage was given, it was agreed that the mortgagor might dispose of the goods as he had been doing, and apply the avails thereof in liquidation of the defendants' claim, and that the mortgagor proceeded to sell the goods, and from time to time replenished his stock with the same line of goods. The orator claims that this agreement and sale of goods by the mortgagor rendered the mortgage fraudulent. There is nothing in the report to show that this arrangement was fraudulent in fact, and the arrangement itself did not render the mortgage fraudulent and void as a matter of law. The case of Peabody v. Landon, 61 Vt. 318, 17 AtI. Rep. 781, is full authority for this holding.

3. The defendants have lost nothing by not seasonably insisting upon the demurrer contained in their answer. By omitting to do so they have not waived their right to insist that the orator establish his right to the property as against them.

The

4. The orator's claimed lien upon the mortgaged property for the payment of the expense incurred in the insolvency proceedings is inoperative as against the defendants. The facts that defeat his claimed title to the property itself defeat his claimed lien. fact that there are no assets does not change the law. An assignee is bound to know, before incurring expense, whether there are available assets out of which it can be paid. The orator had no right to incur expense, relying upon the property in question for payment, until the mortgages were adjudged void, and he had recovered the property or its value. He has no right to reimburse himself out of the defendants' property until their mortgages have been adjudged void, and the property has become assets of the insolvent estate. The mortgages can never be adjudged void, nor the property or its value recovered, because the remedy provided by the statute is inoperative since the discontinuance of the insolvency proceed

ings.

5. The master has found that the defendants, in taking possession of the goods included in their chattel mortgage, by mistake took some new goods that had been pur

chased subsequent to the execution of their mortgages, and not included therein; and the orator insists that he is entitled to relief in respect to these new goods. The bill is framed with reference to relief, or a recovery, in respect to real and personal estate claimed to have been conveyed by the orator's intestate to the defendants in fraud of the insolvency law. The orator having failed to establish such facts as would justify the court in granting relief in respect to these matters, there is no basis or foundation upon which the court can proceed and grant relief in respect to the new goods, which are in no way referred to in the bill, and for the recovery of which the orator has an adequate remedy at law. The pro forma decree of the court of chancery dismissing the bill is affirmed, and the cause remanded.

ROSS, C. J., (dissenting.) I am unable to concur in the views of my associates, as expressed in the first point in the opinion. The insolvent law was enacted subsequently to the general law for the settlement of estates and brought a new element into their settlement. R. L. § 1883, providing that, if the debtor dies pending the proceedings in insolvency, such proceedings shall be discontinued, and the debtor's estate settled in the probate court like other estates of deceased persons, does not mean that the estate shall be settled disregarding what has been done in the insolvency proceedings. Such pro

ceedings may have progressed so far as to adjudicate that the assignee shall recover payments, and that attachments and conveyances are void, and must be set aside. They may have proceeded so far that the estate is in money in the assignee's hands, awaiting distribution only. A judgment in favor of the assignee to recover a payment uncollected on the death of the insolvent, I think, could be enforced for the benefit of the estate. Such adjudications do not beeome void nor unenforceable upon the death of the debtor, and the discontinuance of the further proceedings in insolvency. I think the administrator and probate court take the estate in the legal condition in which the insolvent proceedings have placed it. R. L. § 1883, does not provide that what has been done or adjudicated in the insolvent proceedings shall be vacated, but that they shall be discontinued; that is, they shall proceed no further. The intestate had been adjudicated an insolvent. That adjudication is still in full force. With that in force, R. L. § 1860. provides that conveyances and pledges of the insolvent's property, among other things, made within four months of the commencement of the proceedings in insolvency, with a view to give a preference to a person having reasonable cause to believe the maker insolvent, shall be void, and the assignee may recover the property, or the value thereof. With the adjudication of insolvency still in force, if the mortgages made to

the defendants were made under the conditions named, within the time limited, I think they were void, as declared by the statute. I do not think the administrator is precluded from showing that the facts existed that rendered them void under the statute, any more than he would be to show that any other conveyances made by the intestate were void at law. When the existence of the necessary facts is established, including the adjudication in insolvency, the statute itself makes the mortgages void, and the property pledged, the property of the estate. I do not think that the existence of the conditions must be established in the insolvent proceedings, nor in the name of the assignee. On the adjudication in insolvency, and the existence of the requisite conditions being shown, the statute declares the mortgages void. Neither the court of insolvency nor the court of chancery can adjudge the mortgages void, except upon the establishment of the conditions named in the section, and then only by force of the statute. It is the statute, and not the court, that renders such conveyances void. The section is that "the property or the value thereof" may be recovered. To that extent the assignee or administrator may elect to recover the value of the property conveyed, rather than the property conveyed or pledged. This is all that is held in Lewis v. Bank, 64 Vt. 626, 25 Atl. Rep. 835. What is said in that opinion about the statute being so construed as to make such transaction voidable at the election of the assignee is no more than in other terms repeating the language of the act, that the assignee may "recover the property or value thereof;" that is, if he prefers to recover the value of the property, he may elect to do so, and allow the conveyances to stand. Entertaining these views of the effect of the statute, I should allow the administrator in the court of chancery, if he can, to establish the necessary facts to render the mortgages in controversy void under the statute, and to have them so declared. If my associates' views are sound on this point, I do not dissent upon the other points considered in the opinion.

made by defendant, was overruled, and he excepts. Exceptions sustained.

After the entry of the case in the county court, the respondent filed a plea to the jurisdiction, alleging that the proceedings were void, for the reason that the town grand juror upon whose complaint the prosecution was begun had never taken the oath of office, and upon this plea issue was joined. Upon the trial the following facts were agreed upon by the state's attorney and respondent: That the prosecution was for intoxication, and was begun upon the complaint of one Perrin, purporting to act as town grand juror for the town of Greensborough; that said Perrin had been duly elected to that office; that at the time of making the complaint he had not taken the oath of office, but was acting as such town grand juror; that the complaint was regular upon its face, and that a warrant was issued upon it, the respondent arrested, arraigned, tried by a justice's jury, and convicted; that sentence was imposed upon the verdict, and that from that judgment the respondent appealed to the county court; that all the proceedings were regular, save the omission upon the part of the town grand juror to take the oath of office. Upon these facts the court overruled the plea, adjudged that it had jurisdiction, and ordered the respondent to answer over.

W. W. Miles, State's Atty., and E. A. Cook, for respondent.

START, J. The complaint was made by a grand juror who had not taken the oath of office. No question is made but that the objection was seasonably taken. R. L. § 2669, provides that the clerk, constables, grand jurors, and listers of each town shall be sworn before entering upon the discharge of their duties, and that the town clerk shall make a record of their having done so. This statute was enacted in 1872, and was construed in Ayers v. Moulton, 51 Vt. 115, to be mandatory upon listers, and that substantial compliance with it was necessary to give validity to a grand list as the basis of taxation. The statute having been thus construed, it is difficult to see how a grand juror who has not taken the oath required by the same statute can make a valid complaint. If the statute is mandatory upon listers, it is equally so as to grand jurors. Listers and grand jurors are public officers; their official acts affect the public. If a lister who has not taken the oath of office is not a lister de facto for the purpose of making a grand list, in which the public is interested, then a juror who has not taken the oath of office is not a grand juror de facto for the purpose of instituting, by complaint, a prosecution, in which the public is interested. In Lynde v. Town of Dummerston, 61 Vt. 48, 17 Atl. Rep. 45, a list was held invalid because the listers did not take the oath prescribed by the statute. On the au

thority of these cases, we hold the complaint insufficient. Exceptions sustained, complaint adjudged insufficient and quashed, and respondent discharged.

LANE V. BISHOP et al.

(Supreme Court of Vermont. Orleans. Aug. 28, 1893.)

HUSBAND AND WIFE-HOW WIFE MAY BIND SEPARATE ESTATE.

R. L. 2321, provides that a married woman may contract with any person other than her husband, binding herself and separate property as if unmarried; be sued on all contracts made by her without the joinder of her husband, and that execution may be levied upon her separate estate; that she may not. however, become surety for her husband's debts, except by duly executed mortgage. Held, that a married woman may, in conducting a partnership business with her husband, bind herself to third parties for goods furnished the partnership, and such obligation may be enforced against her when sued with him as a partner.

Exceptions from Orleans county court; Ross, Chief Judge.

Action by Elisha Lane against H. W. Bishop and another on an account. There was a judgment for plaintiff, and defendant Belle M. Bishop excepts. Affirmed.

Crane & Alfred and Dickerman & Young, for plaintiff. E. A. Cook and Smith & Sloane, for defendant.

ROSS, C. J. This is an action of book account. The defendants, H. W. Bishop and Belle M. Bishop, are husband and wife, and are sued as partners trading under the name of H. W. Bishop & Co. The account was contracted by H. W. Bishop & Co. in the years 1890 and 1891, in running a hotel at Newport. The auditor has found that the defendants in fact were partners in conducting that business; that the defendant Belle M. held herself out, and allowed herself to be held out, as a partner in the business; that she had separate property, and the plaintiff sold the goods to the firm, relying upon her financial ability to pay for them; and that she personally promised orally and in writing to pay for the goods. The only contention is whether, being a married woman, and her husband being the other partner, she can be compelled to pay for the goods in this form of action. Before the passage of the laws of 1884 and 1888, in reference to the property rights, capacity, and liabilities of married women, it was held, in Holmes v. Reynolds, 55 Vt. 39, that where the wife had the capacity to contract she and her husband might bind themselves by a joint contract, Taft, J., saying: "Where the wife has the capacity to contract independently of her husband, he would not be liable by virtue of his marital relation upon contracts entered into by her, but there is no reason why he cannot jointly contract with her in

all cases where she has the capacity to contract." Subsequently the law enlarged the capacity of the wife to contract. R. L. § 2321; No. 140, Acts 1884, and No. 84, Acts 1888. When the cause of this action arose, the statute on this subject read: "A married woman may make contracts with any person other than her husband, and bind herself and her separate property in the same manner as if she was unmarried, and may sue and be sued as to all such contracts made by her, either before or after coverture, without her husband being joined in the action as plaintiff or defendant, and execution may issue against her, and be levied on her sole and separate goods, chattels, and estate. But this section shall be subject to the limitation that nothing herein contained shall authorize a married woman to become surety for her husband's debts, except by way of mortgage duly executed, as now provided by law." This provision of the statute has been before this court, and received construction in Reed v. Newcomb, 59 Vt. 630, 10 Atl. Rep. 593. It is there said: "This law removes the incapacity of a married woman to contract, and permits her to make contracts in the same manner and to the same extent as a feme sole, excepting with her husband, and enforces them. The power thus given to her to contract with other persons than her husband is unrestricted, and she may, jointly with her husband or other person, make contracts in all cases where she has legal capacity under that act to contract. No reason of public policy now prevents, under this act, the maintaining an action against the husband and wife upon their joint promise, whether made before or during coverture." In the same case (Reed v. Newcomb, 64 Vt. 49, 23 Atl. Rep. 589) it is held that the husband and wife may be jointly liable and held on debts contracted by the husband, in a business carried on by him as her agent, which he holds out to the world as her business, with her knowledge, consent, and approval. These decisions are of recent date, and establish that under the present law, as well as heretofore, the husband may be the agent of the wife, and bind her in any business transaction in which she could personally bind herself, and that he may become jointly bound with her in any such transaction. It only remains to consider whether in such a joint transaction, carried on by them as partners, she becomes bound to third parties negotiating with the partnership. It is contended that, inasmuch as the statute does not remove the wife's incapacity to contract with her husband, therefore she cannot enter into legal partnership with him, inasmuch as the partnership implies a contract between the several partners, both as to the right of each to represent and bind all in all partnership transactions, and also with respect to the several partners' interest, right, and liability in the partnership, as between themselves. It may be conceded, and

doubtless it is true, that a legal partnership necessarily involves contractual relations between the several partners. If the contention were with reference to enforcing such relations between the husband and wife as partners, it is quite plain that the statute has not removed the incapacity of the wife to enter into them with her husband, and at law they could not be enforced. But the question presented is not the enforcement of the partnership contract between the husband and wife. This is not a suit to which the husband is one party and the wife the adverse party, to settle their respective rights in the partnership business which they carried on under the firm name of H. W. Bishop & Co. The wife was fully capacitated to use her property in running a hotel, and to contract with the plaintiff for supplies for that purpose. Her contract with the plaintiff for such supplies would bind her as though unmarried. Nor, as we have seen under the decisions mentioned, would her contract with the plaintiff for such purpose become invalid, nor unenforceable, because her husband became jointly liable with her for its performance, nor because he acted as her agent in making the purchases of the plaintiff, as, to some extent, it is found that he did. When acting as her agent, he represented her, and acted by virtue of the power conferred upon her by the statute in giving her capacity to act and bind herself. Neither does conducting business by a husband and wife as partners, in regard to third persons, involve her becoming surety for her husband, which, under the statute, can be accomplished only in the manner specified. With respect to such third persons, as well as with respect to the partnership business, each partner is principal. Each and all the partners are interested in the business. If one partner pays the whole of a partnership debt, or if he pays more of such debts than his just proportion, he is entitled to a credit therefor in closing the partnership business, but not because he has paid anything as surety for his copartners. He has only paid what he has legally bound himself to pay as principal. Hence, in holding that a married woman may, in conducting a partnership business with her husband, bind herself to third parties, and that the obligation may be enforced against her when sued with him as a partner, it is not necessary to enforce any part of the partnership contract between the partners, nor any contract, or part of a contract which the statute has left her incapable of entering into. Any other holding would allow a married woman by conducting a partnership business in which her husband was a secret or open partner frequently to receive all the benefits to be derived therefrom, and escape all the liabilities. If the suit was to settle the partnership business between the defendants, and to adjust their rights and liabilities therein, other and different questions would arise, which we have not considered.

But as to the plaintiff, and his rights, the defendants, though husband and wife, and although sued as partners, are no more than joint debtors; nor will the enforcement of the judgment against them as partners be anything more or other than the enforcement of a joint judgment, founded on the joint contract and liability of the defendants. Wherever this question has arisen in regard to the rights and liabilities of married women, the decisions, so far as they have come to our attention, have been in accord with the views we have expressed. Krouskop v. Shontz, 51 Wis. 204, 8 N. W. Rep. 241; Scofield v. Jones, 85 Ga. 816, 11 S. E. Rep. 1032; Parker v. Kane, 4 Allen, 346; Basford v. Pearsons, 7 Allen, 506; Burr v. Swan, 118 Mass. 588; Major v. Holmes, 124 Mass. 108; Goodnow v. Hill, 125 Mass. 587; Reiman v. Hamilton, 111 Mass. 245; Noel v. Kinney, 106 N. Y. 74, 12 N. E. Rep. 351. The two cases last named are especially to the point. Conceding that a married woman may bind herself to third parties in conducting a business as a partner with her husband, we do not think that any of the exceptions taken by the defendants to the admission of testimony before the auditor can be sustained. It was proper to admit her sayings to establish that she was the "Co.," or partner of her husband, included in H. W. Bishop & Co.; also to admit what her husband said on the subject which was carried to her knowledge; also how the plaintiff and other persons dealing with H. W. Bishop & Co. understood it to her knowledge, and what action they took to her knowledge, founded upon that understanding. She conceded that the livery business run in connection with the hotel was carried on in the name of herself and son, and that she was interested in that business. It was admissible to show that that business was so intermingled with the hotel business that they could not be separated, as tending to show that she was interested in the hotel business, which she denied. Judgment affirmed.

COX et al. v. HANDY et al. (Court of Appeals of Maryland. Oct. 11, 1893.)

On rehearing. Denied. For former report, see 27 Atl. Rep. 227.

BRYAN, J. A motion for a reargument has been filed in behalf of Julia J. Handy. She is the only child of Charles Handy, a son of the testator, who died in the lifetime of his father. The motion is made on the supposition that we decided that she was not entitled to participate in the division of that portion of her grandfather's estate which was left to his widow for life. In the bill of complaint filed in this case it is alleged that she and certain other descendants of the testator are the only persons entitled to an interest in this property. It was not de

nied in the pleadings or in the argument that she was entitled to an interest in the property, but in one of the answers it was maintained that the representatives of Jesse Handy, a son of the testator, who survived him, and who died in the lifetime of the widow, were also entitled to a share, and this was the controversy in the case. We decided this controversy, but had no occasion to consider the rights of Julia J. Handy, as they were not drawn in question. Some of the expressions in the opinion would militate against her claims, if they were separated from the context, and considered without reference to the subject-matter to which they were applied; but they were intended to be understood as applying to the interest of Jesse Handy, which was the sole subject of discussion. In the investigation of the question we cited certain general rules of construction, which are frequently of great use in ascertaining the meaning of a testator when it is doubtful, but are never to be applied so as to defeat his intention when it is clear. The property at the death of the widow was to be divided among the testator's children; "the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled." A share of the property vested in each of the children who were living at the time of his death, and, if any child died before the period of distribution, leaving children, they were substituted in his place. His share, however, was not divested if he left no children, but it went to his representatives. Jesse Handy was in this latter category. Julia Handy's father died before the testator, and he, therefore, had no interest in the property. But, nevertheless, the testator's intention was clear that she should take a child's part. The child of any deceased child was, by the terms of the will, to take the portion to which the parent would have been entitled if living at the time when the division was appointed to take place. It made no difference whether the death occurred in the lifetime of the testator, or after his decease; the mere fact that the parent was dead at the time of the expiration of the widow's life estate was sufficient to complete his child's title. If the deceased parent survived the testator, the child took by substitution in his place; but, if he died in the lifetime of the testator, the child's title was by direct and original gift.

We see no necessity for a reargument, and shall therefore overrule the motion. Motion overruled as unnecessary.