Hammond, D. J.
The proviso to the act repealing the bankruptcy-laws makes ample provision for continuing the jurisdiction of the court over all cases pending at the time of the repeal; and there is no force in the objection that the court has no jurisdiction “since the repeal of the act to establish a uniform system of bankruptcy.” Act June 7, 1878, c. 160, (20 St. 99;) Re Richardson, 2 Story, 571; Re Ankrim, 8 McL. 285; Carr v. Hilton, 1 Curt. 231; Re King, 3 Fed. Rep. 839; Re Hyde, 6 Fed. Rep. 587. That a petition like that filed in this cause is the proper remedy for the assignee, and not a plenary suit by bill or an action at law, seems well established by the authorities. Re How, 18 N. B. R. 565; Re Ettinger, Id. 222; Re Ketchum, 1 Fed. Rep. 840; Re Nichols, Id. 842; Re Moses, Id. 845 ; Re Campbell, 17 N. B. R. 4; Re Swearinger, Id. 138; Re Pellasohn, 16 N. B. R. 265; S. C. 4 Dill. 107; Re Benson, 16 N. B. R. 377; Re Betts, 15 N. B. R. 537; Re Boothroyd, Id. 368; Re Thompson, 13 N. B. R. 300; Re Wright, 8 N. B. R. 430; Re Speyer, 6 N. B. R. 255; Re Kempner, Id. 521; Re Pierce, 7 Biss. 426; Re Smith, 2 Hughes, 307.
Whether the estate that the bankrupt had in the land of his wife at the date of the filing of his petition in bankruptcy passed to his assignee depends upon a proper construction of the Tennessee statute. T. & S. Code, §§ 2481, 2482. At common law he was, on that date, a tenant by the curtesy initiate, and about the character of that precise estate there has been much conflict in the books, and much confusion. I do not, from authorities consulted, find that it has been ever settled or agreed upon whether the husband, before or after issue born, is in possession of his estate by virtue of this tenancy, or that which he has by virtue of the marriage, considered irrespectively of the birth of issue, or the possibility of such birth. Often it is unimportant whether he is in by the one or the other, but in the conflicts that arise over marriage settlements, grants to the wife by deed or will, the statute of limitations, dissolutions of the coverture by divorce, and the effect of conveyances by the husband and the wife, one or both, the nature of this tenancy by the curtesy initiate has been freely discussed, but in some respects remains unsettled. Too much force is sometimes given to the death of the wife, and even to the birth of issue, when either is thought to originate this estate by the curtesy, and it is sometimes said, as it is argued in this case, that prior to the death of the wife it is a possibility only, — something like the spes suecessionis of the heir apparent or presumptive to an estate, that does not pass to a voluntary assignee, or to an involun[30]*30tary assignee, by operation of law. This is not true of the estate at any period from the moment of marriage and seizin of the wife down to the consummation of the estate, if issue be born, by her death.'
Whether, before seizin by the wife, a husband’s possible curtesy in lands belonging to the wife would be assignable, in law or in equity, by treating the conveyance as a covenant to.assign, or not, certainly, from the very moment of such seizin, he becomes a tenant by the curtesy, and that is undoubtedly the initial point at which this estate in the particular land vests in him, no matter whether it originates in the seizin or the marriage relation. And from that moment, although he may be in possession by virtue of the marital right, or jure vxoris, as it is sometimes called, he is also in possession by virtue of this estate by the curtesy, if the 'two be separable at all. Some of the authorities say he is in by both by a kind of remitter, and possibly they may in some sense be said to unite or merge into each other, though neither will destroy or absorb the other. But, whatever the distinctions may be in this regard, and however for all purposes this matter may be determined, for the purpose nf giving effect to his conveyances, and for the purpose of being subjected to his debts, it is vested in him whenever the necessary seizin of the wife occurs. If he convey, or it be assigned by operation of law after seizin, even before issue born, the estate by the curtesy passes, and his assignee holds, as he held it, subject to be devested by the failure of issue occurring by the death of the wife without having given birth to a child born alive; or, whether issue be born or not, by the death of the husband terminating the estate in the life-time of the wife; and in some peculiar circumstances, perhaps, by other events. The mistake is often made of supposing that the survivorship of the wife defeats the tenancy by the curtesy. Her survival has no such effect. His death terminates his life estate necessarily, whether it occurs before or after that of the wife. But it does not follow that this defeasible and determinable character of the estate reduces it to a bare possibility, or makes it an estate called into being by the happening of a contingency — either that of the birth of issue or the death of the wife in the life-time of the husband. The husband has, at best, only a life estate, and of course his death ends it, whether it happens before or after the' death of the wife; and what the books mean by saying that her death consummates this tenancy by the curtesy is that from that time on there is no marital relation furnishing him any other right to possession or ownership of her lands than that which he has derived through this curtesy of the law. The death of the wife neither originates nor [31]*31vests the estate, but only consummates or makes perfect that which had been before originated and vested. I shall not here critically examine the authorities consulted on the general character of this estate with a view of determining the exact scope of our statute, because, whatever may be that character, it is too well settled that it may be conveyed by the husband, may be sold under fieri facias, and passes to an assignee in bankruptcy, to require more than a citation of some of the cases on that point. Gardner v. Hooper, 3 Gray, 398; Vreeland v. Vreeland, 1 Green, N. J. Eq. 513; Boykin v. Rain, 28 Ala. 332; Day v. Cochran, 24 Miss. 261; Schermerhorn v. Miller, 2 Cow. 439; Gibbins v. Eyden, L. R. 7 Eq. 371; Morgan v. Morgan, 5 Madd. 408; Follett v. Tyrer, 14 Sim. 125; Cooper v. Macdonald, L. R. 7 Ch. Div. 288; 1 Bish. Mar. Worn. § 489 ; Hill. Bankruptcy, (2d Ed.) 112, § 14. And in Kesner v. Trigg, 98 U. S. 50, no question was made but that the assignee took the estate by the curtesy. The same principle is found in Re Bright, L. R. 13 Ch. Div. 413, where a fund of personal estate was settled on the mother for life, and after her death on the children of the marriage, and it was held that the assignee in bankruptcy of one of the children took his share, though the life tenant did not die for nearly ten years after the bankruptcy.
Has our statute changed this result? I think not. Standing alone, section 2481 of the Code would exempt the whole estate of the husband from liability for his debts, and, as a consequence, by operation of the bankruptcy act itself, (Rev. St. § 5045,) it would not pass to the assignee. But section 2482 of the Code operates to restrict the quantity of the husband’s estate that is exempt to so much of it as is measured by his wife’s life. He holds the estate for his own life, and it is exempt from execution for the life of another, and therefore not necessarily for his own life. He asks here too much — more than this statute in terms gives him — when he claims exemption for the whole estate by the curtesy coextensive with his own life. That the statute has not abridged his common-law estate by limiting it to the life of his wife is plain, because he claims it after her death, and during his own life, and this he can do only on the theory that the statute has not interfered with his common-law estate in this land in regard to its quantity. If the statute has preserved to him his tenancy by the curtesy it has preserved it to his creditors, because the statute only cuts them off during the life of the wife.
It has been said in the books that a tenancy by the curtesy stands somewhat as if the wife had made a lease of the land.to her husband [32]*32for his life, the reversion being in her or her heirs. Now, out of this estate of the husband the statute carves a portion which it exempts from execution, and that portion does not pass to an assignee in bankruptcy; not because of any peculiarity in the estate itself as being unassignable, but because the bankruptcy laws have in terms declared that property so exempt shall not pass to the assignee. It cannot, then, I think, be successfully claimed that.the portion which we may call a surplus remaining after the wife’s death is also exempt.
The next argument to be considered is that the estate now enjoyed by the husband is subsequently acquired property coming to him on the death of his wife, happening since the petition in bankruptcy was filed. This, to my mind, involves a .total misapprehension of the nature of the estate of tenancy by the curtesy, and can only be sustained on the theory that the statute has created a new kind of estate for the -husband in his wife’s lands, or, rather, two estates. One of these, which he enjoys during her life, and in the enjoyment of which he was when the. petition in bankruptcy was filed, -'is claimed as exempt property;'and, as to the other, that it was created for him, or was called into existence by the death of the wife happening since the bankruptcy. During his wife’s life this latter estate, it is argued, was a mere possibility which did not pass. The case of Jackson v. Middleton, 52 Barb. 9, is very much relied on to sustain this position. It should be read in connection with Moore v. Littel, 40 Barb. 488; 3 Am. Law Reg. (N. S.) 144, where the same deed was construed. There was a deed to John Jackson for his life, and after his death to his heirs and their assigns. It was held that during the life of the life tenant the heirs had “an alienable contingent estate in remainder,” and that this estate, under a New York statute which subjected “lands, tenements, or hereditaments” to execution, was not liable to that writ. But a tenancy by the curtesy, in my judgment, has no sort of analogy to such an.estate as the one mentioned in that case. If, however, this be incorrect, it is a sufficient answer to say that our bankrupt statute is much broader, and vests in the assignee all the estate, real and personal, of the bankrupt. Rev. St. § 5044. Krumbaar v. Burt, 2 Wash. 406, is also relied on, where it was decided that, under the act of 1800, possibilities did not pass. But our later acts are more enlarged in their operation; and even under the old acts this case was not approved, but overruled. Belcher v. Burnett, 126 Mass. 230; Comegys v. Vasse, 1 Pet. 193, 218; Vasse v. Comegys, 4 Wash. 570; Nash v. Nash, 12 Alien, 345. Under the old English acts, which were “very darkly [33]*33penned,” (Re Marsh, 1 Atk. 158,) when the creditors only took “all such interest in lands as the bankrupt may lawfully depart with-all,” — Comegys v. Vasse, 1 Pet. (original edition,) 200, — it was at first determined that only such interests as were alienable at law passed to the assignee, but afterwards it was held that such as were assignable in equity also passed; and possibilities coupled with an interest came to be regarded as assignable. Our bankruptcy act was intended to relieve us of all this trohble by using the most comprehensive terms, and there can be no doubt that every character of property belonging to the bankrupt himself passes. Bare possibilities — such, for instance, as the hope that one has that his father or other relative will die intestate, leaving him an inheritance — do not pass; but I cannot see that the tenancy by the curtesy, either at common law or under this statute, is of that character.
It is also argued, in support of the position that this estate of the husband did not pass, that “the assignee in bankruptcy does not take the whole legal title as heirs and executors do, but only such estate as the bankrupt has a beneficial interest in;” and this is true. If he has not a beneficial interest in a tenancy by the curtesy initiate, it is difficult to see why he has not. He has not so great benefit under the statute as he had at common law, for there are restrictions on his powers of alienation and restrictions on the right of his creditors to subject his interest to their debts; but in neither respect has his interest been wholly demolished, and the assignee only claims by this petition that beneficial interest which the statute left to him. This above-quoted formula is often found in the authorities, but I do not find that it has ever been applied to save to the bankrupt any property that belonged to him, but only such as belonged to third persons and which was held by him under some kind of trust relation. In the earlier stages of bankruptcy legislation, when the statutes were not so elaborate as now, it was a principle resorted to and established by the courts to save to third persons their rights in property which the bankrupt held for them, and to prevent the devolution of such trusts on the assignee, who did not become a general administrator of the bankrupt’s legal and equitable powers over all property, doing in his stead for others what the bankrupt was required to do, but was restrained in his title to the property of the bankrupt which creditors could apply to their debts. The assignee, for example, takes subject to a wife’s right of dower, to her right of survivorship; subject to her right to an equitable [34]*34settlement; subject to all defeasances and contingencies in her favor, or in favor of any third person, for that matter; subject to the liens of a mechanic, or a factor, or the like; subject to the right of rescission of a contract for fraud, in some instances; subject to the estoppels on the bankrupt, where they do not grow but of some fraud on creditors; and, generally, subject to all trusts, liens, and burdens existing at the time. In some cases the circumstances were such the assignee took nothing, and in some only the surplus after the burdens were satisfied. Brown v. Heathcote, 1 Atk. 160; Scott v. Surman, Willes, 400; Mitford, v. Mitford, 9 Ves. 87; Re Dow, 6 N. B. R. 10; Rogers v. Winsor, Id. 246; Re McKay, 1 Low. 345; Re Faxon, Id. 404; Re Griffiths, Id. 431; Goddard v. Weaver, 1 Woods, 257; Re Hester, 5 N. B. R. 285; Eberle v. Fisher, 13 Pa. St. 526; Eshelman v. Shuman, Id. 561; Keller v. Denmead, 68 Pa. St. 449; Ontario Bank v. Mumford, 2 Barb. Ch. 596.
Here, again, our bankruptcy statutes have recognized and declared this principle, and provide that no trust estates shall pass, and that all liens and rights of third persons shall be preserved, so that the assignee either does not take at all, or else takes subject to the liens and burdens. Rev. St. 5053, 5075, 5044, and notes; Bump, Bankruptcy, (10th Ed.) Applying the principle here, the assignee took the tenancy by the curtesy initiate as it existed at the date of the petition in bankruptcy, subject to the right of the wife, if she survived her husband, to defeat his estate; or, more accurately, subject to the determination that would come by his death, and subject to her rights under this Tennessee statute to remain in possession during her life, jointly with her husband, and that they should, during that time, enjoy the estate without disturbance by his creditors or his assignees of any kind, whether in bankruptcy or any other, unless she, by her deed according to law, should consent to give up the land. And it is possible that, by joint deed of the husband and wife, the assignee’s title might have been defeated, even after the bankruptcy, in the same way as is sometimes done where she has a power of appointment; but it is not necessary to decide that here, as no such conveyance was made, and it is well settled that where she has the power to defeat his estate by appointment or conveyance of any kind, her failure to exercise it preserves his rights. The statute operates as a settlement upon her to that extent, but no further. And.it is to be observed that it does not, as some statutes do, create a separate estate in the wife, nor destroy his estate in his wife’s lands, [35]*35either that he holds jure uxoris, or the larger estate of tenancy by the curtesy.
It is always a question of intention whether the legislature has, by such statutes as these, cut off the husband’s marital rights entirely or only partially; and they are construed, just as wills, deeds, marriage settlements, and other conveyances are, to go no further in that direction than the language used, in terms or by necessary implication, requires. This construction I have given the statute is supported by every Tennessee case which has construed or mentioned it. Johnson v. Sharp, 4 Cold. 45; Dodd v. Benthal, 4 Heisk. 601; Bottoms v. Corley, 5 Heisk. 1; Corley v. Corley, 8 Bax. 7; McCallum v. Petigrew, 10 Heisk. 394; Lucas v. Rickerich, 1 Lea. 726; Young v. Lea, 3 Sneed, 249; Coleman v. Satterfield, 2 Head. 259; Gillespie v. Worford, 2 Cold. 632; Aiken v. Suttle, 4 Lea, 103.
It is also supported by the cases construing settlements on the wife by will or deed, where the benefits conferred, the language used, and the restrictions on alienation and the husband’s marital rights are similar to those in this statute. Brown v. Brown, 6 Humph. 126; Hamrico v. Laird, 10 Yerg. 222; Frazier v. Hightower, 12 Heisk. 94; Baker v. Heiskell, 1 Cold. 641; Appleton v. Rowley, L. R. 8 Eq. 139; Marshall v. Beall, 6 How. 70; Moore v. Webster, L. R. 3 Eq. 267; Bennet v. Davis, 2 P. Wms. 316; Eden, Bankruptcy, 245; 25 Law Lib. 193.
It also finds a complete analogy in the construction of our homestead statutes, which confer a similar benefit on the husband, wife, and children, and yet it is held that creditors may subject the husband’s interest, subject to this right of occupancy and possession by the family, which may last during the life of the husband and wife or the survivor, and until the youngest child reaches a certain age. Moore v. Hervey, 1 Leg. Rep. (Tenn.) 22; Mash v. Russell, 1 Lea. 543; Lunsford v. Jarrett, 2 Lea. 579; Gilbert v. Cowan, 3 Lea. 203; Gray v. Baird, 4 Lea. 212; Jarman v. Jarman, Id. 671, 676. In Marsh v. Russell, supra, it is said, “the vendee is clothed with the legal title in reversion expectant on the termination of the homestead estate,” which quite as accurately describes the kind of estate the assignee took in this case.
The same ruling has been made in other states where the statutes give a qualified homestead exemption, while in those where the exemption is absolutely of the whole estate, the assignee takes nothing. Rix v. Capitol Bank, 2 Bill. 367; Re Tertelling, Id. 339; Re Betts, 15 N. B. R. 537; Johnson v. May, 16 N. B. R. 425; Re Wat[36]*36son, 2 N. B. R. 570; Re Poleman, 5 Biss. 526; McFarland v. Goodman, 6 Biss. 111; Re Hinkle, 2 Sawy. 305; Re Hunt, 5 N. B. R. 493; Re Vogler, 8 N. B. R. 132; Re Sinnett, 4 Sawy. 250.
It also finds support in the cases construing statutes of this and other states for the benefit of married women or their families. Cooper v. Maddox, 2 Sneed, 135; Lyon v. Knott, 26 Miss. 548; Rabb v. Griffin, Id. 579; Stewart v. Ross, 54 Miss. 776; Hatfield v. Sneden, 54 N. Y. 280; Re Winne, 1 Lans. 508; S. C. 2 Lans. 21; Thompson v. Green, 4 Ohio St. 216, 232; Plumb v. Sawyer, 21 Conn. 351; Silsby v. Bullock, 10 Allen, 94; Staples v. Brown, 13 Allen. 64; Walsh v. Young, 110 Mass. 396, 399.
Upon consideration of these authorities it will be found to be a general principle that, whether the settlement is made by statute, deed, will, or contract, the husband’s marital rights are not interfered with further than the terms of the settlement go, and that what remains to him can be subjected by his creditors as if the settlement had not been made; and it is as well settled as it is possible to be that the circumstance that the wife is to receive the rents or profits or to enjoy-the estate during her life, or that the husband is forbidden to convey it except with her consent, or that she may alone or jointly with him convey it or defeat the husband’s estate by appointment by will or otherwise, will not, nor will any of them combined, alter the construction so as to affect or defeat his marital rights, nor the estate of his assignee or purchaser, except strictly according to the terms of the settlement. If an estate remains to him after her death as the residuum of what he would have had but for the settlement, his creditors may subject it, and it passes by his deed subject to be defeated if she survives or dies without exercising her powers of alienation.
Finally, there is an unreported case in this court, in Re Stack, a bankrupt, (June, 1879,) in which the circuit judge, sitting for the district judge, who was incompetent, upon the same principle decided in favor of the assignee. The wife of the bankrupt, under a deed from him, held land to her “sole and separate use and benefit, free from the debts, liabilities, and control of her present or any future husband, with power to sell, by joint deed with her husband, for reinvestment on same trusts, and if she should die in the life-time of her husband then to revert to him in fee-simple.” The estate of her husband was not mentioned in the schedules of the bankrupt, as in this case, he deeming it secure from the operation of the bankrupt law, and the wife died pending the proceedings in bankruptcy, as here, whereupon the assignee filed a petition, like that in this case, [37]*37and the court compelled the bankrupt to surrender the land to the assignee. Under this deed the wife had all the protection she would have had under this statute, and a larger estate than she would have had if she had inherited the land or held it by an ordinary conveyance. Besides, the land itself was, at the date of the petition in bankruptcy, under the protection of this statute, both as to the interest of the wife and that of the husband. And, as to his interest, the only difference I can see is that there he had a reversionary estate in fee-simple, contingent upon his surviving his wife, but liable to be defeated also by their joint deed, (leaving out the reinvestment clause,)whilo here the bankrupt had a life estate, subject to the same contingencies. It was ruled that this estate was vested at the time of the bankruptcy, and did not vest at the death of the wife, and was, therefore, not subsequently acquired property. Furthermore, the ruling must have been the same in that case if Stack had had no contingent reversionary interest under the deed, and it had appeared there was issue of the marriage, for he was, in that event, a tenant by curtesy,, notwithstanding this was a separate estate, and would have held the land for his life, unless it may be the words “free from the debts, liabilities, or control of any future husband” should be construed to entirely cut off his (Stack’s) curtesy. I do not see any difference in principle between that case and this, because if Stack had under that deed such an interest as passed to his assignee during the life of his wife, subject to her rights under the deed and this statute, I do not see why the bankrupt here did not have, by the common law regulating the tenancy by the curtesy, such an interest in his life estate as passed, subject to the rights of his wife and his own under the statute.
The objection, in this view of the case, that the children of the wife are not parties to this proceeding, is not tenable. The assignee only claims the life estate of the bankrupt, and in this the children have no interest.
Motion overruled.