In re WILLIAMS, 29 F. Cas. 1320

STORY, Circuit Justice. The third

section of the bankrupt act of 1841, c. 9 [5 Stat. 440], vests in the assignee all the property, and rights of property of the bankrupt, except such as is therein excepted; and the exception is contained in the following proviso: “Provided, however, that there shall be excepted from the operation of the provisions of this

section the necessary household and kitchen furniture, and such other articles and necessaries of such bankrupt, as the said assignee shall designate and set apart, having reference in the amount to the family, condition, and circumstances of the bankrupt; but altogether not to exceed in value, in any case, the sum of three hundred dollars; and also the wearing apparel of such bankrupt, and that of his wife and children; and the determination of the as-signee in the matter shall, on exception taken, be subject to the final decision of the court.” In the present case the whole household and kitchen furniture of the bankrupt is estimated at $78.75, and the provisions and fuel at $9; and all the other property of the bankrupt, in his store, at $146.78.

The assignee insists upon retaining from the bankrupt all the goods in his store, $146.78; and a clock, a set of silver teaspoons, one silver table spoon, one silver watch, and one cow, the value of all which is $33. The bankrupt insists, that he ought to have all the furniture and other articles above named, and also all the goods in his store, ($146.78,) inasmuch as the whole will not amount in value to the sum of $30u. From the

schedule it does not appear, that the bankrupt possesses any other property, except debts and securities of the nominal value of $1.122.61; but in reality of little or no intrinsic value. No particular facts are alleged in the present petition, to establish, that the allowance actually made by the assignee is not reasonable and suitable, with reference to the family, condition, and circumstances of the bankrupt. And. certainly, the court may well deem it to be reasonable and suitable, until the contrary is shown by some appropriate facts and proofs.

The ground of the petition seems to be, that, in all cases whatsoever. the bankrupt is entitled to have the sum of three hundred dollars allowed him under the proviso, if he has so much property, as assets, in the hands of the assignee. Now, if this is the ground of the present application, I am clearly of opinion, that it is unmaintainable upon the words, as well as the true, ob.iect and intent, of the proviso. The words import a limitation upon the amount to be allowed to him.

It is in no ease to exceed the sum of §300; but it may be below that, and vary, according to the circumstances of particular cases, from a very small allowance up to the full sum. having reference in the amount to the family, condition, and circumstances of the bankrupt. Suppose the bankrupt is a single man, without any family, it would surely be unreasonable to allow him as large a sum, as if he had a wife, or a wife and children.

If he had five children, all whom were infants, and living with him, it might be reasonable to allow him a large sum. when it would be improper to do so. if they were all full grown, and capable of earning their own livelihood, and engaged in pursuits, which would enable them at once to do so. If the bankrupt were old and decrepid, or his family feeble and sickly, it might be entirely proper to make a liberal allowance, keeping in view his condition, when a far less allowance might suffice, where he and his family might at once ■engage again in lucrative pursuits. But this is not all.

The language of the act does not justify an allowance, except for necessaries, namely, “for necessary household and kitchen furniture, and other articles and necessaries.” Now, I am far from thinking, that a close, or severe, or strict

interpretation is to be given to these words. I think, that they should be treated liberally, and to some extent in the same manner, as the common law treats the question of necessaries in relation to infants, as in a great measure to be regulated by their wants, their means, and their condition. But, then, it should be remembered, that in the case of infants we are dealing with contracts and property, in which they have the deepest interest, and that they have the entire benefit thereof. But in cases of bankruptcy the creditors also have rights- and interests, equally entitled to protection and aid.

It seems scarcely just to them to press the allowance to any great extent. where the assets are small; and especially where it will absorb the whole, or a very large portion thereof. The sum of three hundred dollars is the largest amount, which can be given in the most pressing and distressing cases, even where the assets are very large. It surely could not have been the intention of the statute to strike a dead level, and make the allowance the same in all eases. The very words of the clause forbid it; and the very object of it seems equally inconsistent with such a result.

Besides; the language is, that “necessaries” are to be allowed; and although the words “other articles” precede that word; yet we must, upon the obvious principles of construction, limit the “other articles” to such as are necessaries — ejusdem generis. Now, certainly, a clock, or a silver watch, cannot justly be deemed necessaries in cases of this sort. Silver spoons may, or may not, be necessaries, according to circumstances.

But here the assignee has left with the bankrupt, as a part of his allowance, a plated set of spoons; and there is nothing in the petition to show that these are not amply sufficient for the purposes of the family. A cow, also, may or may not fall within the description of necessaries, according to circumstances, If the party has a large family, it may be fit to make such an allowance. If he has none, it may be unfit, especially if he does not reside in the country. But here, again, there is nothing to assist the court in coming to a decision.

No facts are stated to show, that in this particular case the allow-anee would be reasonable. I shall send a certificate to the district court upon the adjourned question, to the following effect: That a clock and a silver watch are not such furniture, articles, or necessaries, as the assignee may, under the proviso of the third

section of the bankrupt act of 1841, in his discretion, allow to the bankrupt; that the silver spoons, and the cow may or may not be necessaries, within the meaning of the same proviso, according to circumstances; that the assignee is not bound, as a matter of right, on the part of the bankrupt, or of duty on his own part, to include them in the allowance to the bankrupt. But he may in his discretion allow them, if, having reference to the family, conditions, and circumstances of the bankrupt, they may reasonably be deemed to be necessaries.