Nichols v. Eaton et al. their discretion shall think proper, and as to such wife for her sole and separate and inalienable use; and in default of any object of the last-mentioned trust at any period during the life of my said sons respectively, and when and so often as the same shall happen, then, upon trust, from time to time, so long as such vacancy or want of objects shall continue, to accumulate and invest the income aforesaid in augmentation of the principal or capital thereof in the nature of compound interest, with power of changing investments as hereinbefore expressed; and in case, at any time after my decease, such accumulation should cease to be lawful, then, upon trust, to apply the said annual produce and income, or such part thereof as may not legally be accumulated during said want of objects as aforesaid, in such and the like manner as the same would be applicable under the ulterior trusts of this my will." Held, such provision was valid and the life-interest given to the son ceased and determined at his bankruptcy. Where trustees under a will have a discretion as to the manner of the application of the trust-fund for the benefit of a particular person, but no power to apply it otherwise than for his benefit during his life, his interest in case of bankruptcy passes to the assignee; but in this case the life estate was expressly determined by the act of bankruptcy. Such a provision as above recited passes the income from the bankrupt into the control of the trustees, for the benefit, at the trustees' discretion, of the wife or children of one or more of the sons; and if these objects fail, the trustees are required to retain the income, to accumulate and pass, after the death of the sons, under the ulterior trusts of the will. The will contained also the following provision: "And in case, after the cessation of said income as to my said sons respectively, otherwise than by death, as hereinbefore provided for, it shall be lawful for my said trustees, in their discretion, but without its being obligatory upon them, to pay or to apply for the use of my said sons respectively, or for the use of such of my said sons and his wife and family, so much and such part of the income to which my said sons respectively would have been entitled under the preceding trusts in case the forfeiture hereinbefore provided for bad not happened." Held, Under that clause no right vested in the bankrupt to any portion of the income which he could enforce in any court of law or in equity. These words conferred upon the trustees a power to be exercised or not, at their discretion, and one which, if exercised, exonerated them from liability for not applying such portion of the income under the limitations of the clause first recited; but the first clause controlled their action as to the whole fund, unless a portion was withdrawn from those limitations by the exercise of the discretionary power given them. Property in trust cannot pass to the assignee in bankruptcy where the will provides for an absolute cessor of the bankrupt's interest on the event of bankruptcy, if the will provides for the vesting of the interest in some other person. BILL in equity brought to enforce a claim to certain interests alleged to have belonged to Amasa M. Eaton, a bankrupt, out of the estate of his mother Sarah B. Eaton, and which complainant alleged were vested in him as assignee in bankruptcy. On the 1st of May, 1864, Sarah B. Eaton of North Providence made her last will and testament, by which she devised all her estate, real and personal, to three trustees, who were invested with certain extraordinary powers and discretions. Most of the facts were admitted, or not the subject of controversy, and may be stated as follows: Nichols v. Eaton et al. Mrs. Eaton at the date of her will was a widow having four children, three sons and one daughter, and it was agreed that the daughter died unmarried and without children, subsequent to the death of the mother and before her brother Amasa was adjudged a bankrupt. By her will, Mrs. Eaton devised her estate, real and personal, to three trustees, to pay the rents, profits, dividends, interests, and income of the trust property unto and equally among her four children for and during their respective natural lives, and after their decease in trust for such of their children as should attain the age of twenty-one years or die under that age having lawful issue living at his, her, or their decease; and his, her, or their heirs and assigns, if more than one, as tenants in common, subject to the condition that "if any of my said children shall die without leaving any child who shall survive me, and shall attain the age of twenty-one years, or die under that age leaving lawful issue living at his or her decease, then as to the share or respective shares, as well original as accruing, of such child or children respectively, upon the trusts herein declared concerning the other share or respective shares." Claim was made by the complainant as assignee in bankruptcy of Amasa M. Eaton, one of the sons of the testatrix, to his share of the rents, profits, dividends, interest, and income of the trust estate within the control of the trustees named in the will. Amasa was a member of the firm of Bailey & Eaton, and it was admitted that the firm, on the 1st of March, 1867, became insolvent, and that they made an assignment of their property to the complainant, and it appears that Amasa, on the same day, made an assignment of all his individual property to the same party for the benefit of his creditors, and that he, on the 24th of December following, was adjudged a bankrupt, and that the complainant was duly appointed his assignee as alleged in the bill of complaint. Prior to that decree there was no question that he was entitled to one fourth of the income of the trust estate, until the death of his sister, and that subsequently to the decree in bankruptcy he was entitled to one third of the income, as it was admitted that she was never married, and that she died childless. Nichols v. Eaton et al. Horatio Rogers and C. S. Bradley, for complainant. Property left in trust passes to an assignee in bankruptcy. This can be avoided only by an absolute cessor of the bankrupt's interest, and provisions vesting that interest in some other person. Brandon v. Robinson, 18 Ves. 429; Tillinghast v. Bradford, 5 R. I. 205. The provisions of the will are ineffectual for that purpose. 1. Because deficient in its own terms, being but a misapplication of a portion of the usual legal phraseology employed for such purposes. In construing it we can only consider the terms that have been used, and cannot import into it other terms, though usually employed for such purpose. There is no limitation over to any other person or persons of the trust income of the bankrupt accumulating during his life in the absence of wife or children. 2. Because of the discretionary clause by which it was followed and controlled, there being no persons or objects alternative to the bankrupt, in favor of whom, in the absence of wife or children, this discretion can be exercised. Where property is left upon such a discretion as exists in this will it enures to the assignee in bankruptcy. Snowden v. Dale, 6 Sim. 524; Green v. Spicer, 1 Russ. & Myl. 395; Kearsley v. Woodcock, 3 Hare, 185: Page v. Way, 3 Beav. 20; Lord v. Bunn, 2 You. & Coll. 98; Younghusband v. Gisborne, 1 Coll. 400; Davidson v. Chalmers, 33 Beav. 653; Same case, 12 Weekly Reporter, 592; Wallace v. Anderson, 16 Beav. 533; Graves v. Dolphin, 1 Sim. 66; Piercy v. Roberts, 1 Myl. & K. 4; Bryan v. Knickerbacker, 1 Barb. Ch. 409; 11 Bythewood's Conveyancing (3d ed.), 486, note a; same vol., 711 – 713 and forms referred to; Pym v. Lockyer, 12 Sim. 394; Rippon v. Norton, 2 Beav. 63. Any discretion that has been or that may be exercised by the trustees under Mrs. Eaton's will in favor of the bankrupt, must enure to the assignee in bankruptcy. At least the interest of the bankrupt, under his mother's will, after his bankruptcy, is but a conditional estate. U. S. Bankrupt Act, § 14; James' Bankrupt Law, 41, title "Conditional Estates "; 11 Bythewood's Conveyancing (3d ed.), 486, note a; Lord v. Bunn, 2 You. and Coll. 98; Davidson v. Chalmers, 33 Beav. 653; and other Nichols v. Eaton et al. cases cited supra. The discretion has been exercised in favor of the bankrupt and is binding. Bryan v. Knickerbacker, 1 Barb. Ch. 409. An agreement for its exercise was made and is binding. The peculiar circumstances of this case make the doctrine applicable. Samuel Currey and B. R. Curtis, for respondent. CLIFFORD, J. Assignees in bankruptcy are chosen by the creditors of the bankrupt; and it is made the duty of the judge—or, where there is no opposing interest of the register, by an assignment under his hand-to assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto. And the provision is that such assignment shall relate back to the commencement of the proceedings in bankruptcy, and that the title to all such property and estate, both real and personal, shall, by operation of law, vest in said assignee; and the further provision is that the assignee shall have like remedy to recover all said estate, debts, and effects in his own name, as the debtor might have had if the decree in bankruptcy had not been rendered and no assignment had been made. 14 Stat. at Large, 522-524. Assignees in bankruptcy, except in cases of fraud, take only such rights and interests as the bankrupt had and could himself claim and assert at the time of the bankruptcy, and they are af fected with all the equities which would affect the bankrupt himself if he were asserting those rights and interests. Mitchell v. Winslow et al., 2 Story, 637; Brown v. Heathcote, 1 Atk. R. 162; Mitford v. Mitford, 9 Ves. 100; 1 Jarman on W. 816; Hall v. Gill, 10 Gill. & J. 325. Much discussion of that proposition is unnecessary, as it is conceded by both parties, and is supported by the highest authority. Tested by that rule, the question is, whether the bankrupt, at the date of filing his petition in bankruptcy, had any vested interest in the estate of his mother under her will, which must depend upon the construction of the principal proviso, to which reference will now be made. It is as follows: "Provided also that, if my said sons respectively should alienate or dispose of the income to which they are respectively entitled under the pre Nichols v. Eaton et al. ceding trusts; or if, by reason of the bankruptcy or insolvency of my said sons respectively, or by any other means whatsoever, the said income can no longer be personally enjoyed by my said sons respectively, but the same or any part thereof shall, or but for this present provision would, belong to, or become vested in or payable to, some other person or persons, then the trusts herein before expressed concerning the said income, or so much thereof as should or would have so become vested in or payable to any person or persons other than my said sons respectively as aforesaid, shall immediately thereupon cease and determine. And the said income shall be applied by my said trustees during all the then residue of the life of my said sons respectively in manner following, that is to say, upon trust to pay and apply the said income, or such part thereof as aforesaid, to and for the support and maintenance, or otherwise for the use and benefit, of the wife, child, or children, for the time being, of my said sons respectively, or such one or more of such wives, child, or children, and in such manner as my said trustees in their discretion shall think proper, and as to such wife for her sole and separate and inalienable use; and in default of any object of the last-mentioned trust, at any period during the life of my said sons respectively, and when and so often as the same shall happen, then, upon trust, from time to time, so long as such vacancy or want of objects shall continue, to accumulate and invest the income aforesaid in augmentation of the principal or capital thereof in the nature of compound interest, with power of changing investments as hereinbefore expressed; and in case, at any time, such accumulation should cease to be lawful, then, upon trust, to apply the said annual produce and income, or such part thereof as may not legally be accumulated during said want of objects as aforesaid, in such and the like manner as the same would be applicable under the ulterior trust of this my will." Fraud cannot be imputed to the testatrix, as the estate was her own, which she was at liberty to give or not to her children as she saw fit; and, inasmuch as the bankrupt never had any interest in it other than what is devised to him by the will, it is clear that his assignee acquired nothing by virtue of the assignment |