RUDKIN, District Judge.
On the Sth day of February, 1914, the respondent, Miller, filed his voluntary petition in bankruptcy in the court below, accompanied by the usual schedules of his debts, assets, and property. At the time of filing the petition the bankrupt was in possession of a homestead held by him under the laws of the United States, upon which final proof had not been made. A crop of wheat growing on this homestead was not included in the schedules filed. An order of adjudication followed the filing of the voluntary petition, and this in turn was followed by an order of discharge some two months later. On the 28th day of October, 1914, the petitioner, Olm[70]*70sted-Stevenson Company, a creditor of the bankrupt, filed a petition with the referee in bankruptcy, setting forth the failure of the bankrupt to include the growing crop in his schedule, and praying that the case might be reopened and the bankrupt required to file a supplemental schedule containing the omitted property. An order to show cause was made on the filing of this petition, and upon a hearing before the referee an order was made granting the prayer of the petition and requiring the bankrupt to- file a supplemental schedule. The order itself is not in the record, but we gather from the opinion of the referee that it was to the effect that the bankrupt should account to the trustee for the value of the crop less certain offsets not material here. A petition was then filed with the court below to review the order of the referee in that behalf, and upon a hearing in the District Court the order of the referee was reversed. The present petition was thereupon filed in this court for a revision of the order of the District Court.
[1] It appears from the record that the court below reversed the order of the referee on two grounds: (a) Because the growing crop was exempt and did not pass to the trustee; and (b) because the trustee was estopped by his conduct from claiming the crop. The first question is one of law arising on the pleadings in the bankruptcy court'; but the question of estoppel is. one of fact, which can only be determined by a reference to the testimony. There was no finding by the referee or the court below oh that issue; there was no agreed statement of facts; and if this court is to determine the question at all, it must do so from a consideration of the testimony taken before the referee. But in a proceeding of this kind we are neither required nor permitted to review the testimony. In re Richards, 96 Fed. 935, 37 C. C. A. 634; In re Boston Dry Goods Co., 125 Fed 226 60 C. C A. 118; In re Taft, 133 Fed. 511, 66 C. C. A. 385; In re Pettingill & Co., 137 Fed. 840, 70 C. C. A. 338; Steiner v. Marshall, 140 Fed. 710, 72 C. C. A. 103; In re Roadarmour, 177 Fed. 379, 100 C. C. A. 611; Hall v. Reynolds, 224 Fed. 103, 139 C. C. A. 659
[2, 3] For this reason the petition to dismiss interposed in this court should perhaps be granted; but in any event we agree with the conclusion of the court below on the merits of the question involved. When an order is made setting aside a homestead to a bankrupt, whether the homestead be exempt under the laws of the state or under the laws of the United States, the order of necessity carries with it all growing and unmatured crops. The homestead is allowed to the debtor in order that he may support himself and his family, ndt as a mere shelter from the elements; and if he is not entitled to use and retain the growing crops, well may he ask why is the homestead set apart at all. Let us now view the subject in the light of the authorities. The question, of course, is one of local law-, to be determined by reference to the laws of the state as construed by its highest court. Our attention has not been called to any decision of the Supreme Court of- Montana, but á number of federal cases are cited where the question has been decided adversely to the homestead claimant.
In Re Coffman (D. C.) 93 Fed. 422, it was held that crops growing [71]*71on a homestead set apart under the laws of the state of Texas at the time of an adjudication in bankruptcy are not exempt, and must be surrendered to the trustee in bankruptcy. This decision, however, is clearly in conflict with the repeated decisions of the highest court of that state. Alexander v. Holt, 59 Tex. 205; Parker v. Hale (Tex. Civ. App.) 78 S. W. 555; Staggs v. Piland, 31 Tex. Civ. App. 245, 71 S. W. 762; Moore v. Graham, 29 Tex. Civ. App. 235, 69 S. W. 200. In re Daubner (D. C.) 96 Fed. 805, from the District of Oregon, and In re Hoag (D. C.) 97 Fed. 543, from the Western District of Wisconsin, are based largely on the decision in the Coffman Case, and not upon decisions of the local courts.
In Re Sullivan, 148 Fed. 815, 78 C. C. A. 505, from the District of Iowa, the court held that ripe corn standing in the field on a homestead was not exempt. Whether the court intended to distinguish between ripe com and other growing crops does not appear from the opinion; hut in any event the decision seems to be opposed to the decision of the Supreme Court of the state of Iowa in Morgan v. Rountree, 88 Iowa, 249, 55 N. W. 65, 45 Am. St. Rep. 234. In the latter case it was held that moneys due for rent of a homestead are exempt from execution, and in referring to certain cases relating to growing crops the court said:
"It is clear that such crops are not exempt under statutes exempting personal property, unless specified therein. Such crops, if exempt, must, in the absence of such specifications, be so under the law exempting the homestead. The reasoning in these cases seems to us to loso sight of the spirit and purpose of the law exempting homesteads. The conflict in the cases is explained, in part at least, by the differences in the statutes of these states. It will he observed, however, that in none of them is it held that crops, while growing upon the homestead, are not exempt. To answer the question certified,.we must ascertain the letter and spirit of our statute exempting homesteads. It is certainly the spirit and purpose to exempt, not only the homestead, but also the use thereof, for without the use the exemption would be valueless. It is not simply as a place of shelter, a place in which to live, that homesteads are exempt. but also as a means of making a living, as is shown by the exemption of one-half an acre in town, 40 acres in the country, and the shop or building, when situated on the exempt premises, in which the head of the family carries on his business. The use of the homestead, as well as the homestead itself, is unquestionably exempt so long as the homestead character is maintained. When the homestead is terminated, by abandonment or otherwise, the exemption ceases; hut in this case it was not terminated. We think it is in harmony with the evident spirit and purpose of our statute to hold that the head of a family owning a homestead has the right to hold as exempt, not only the homestead and its use, but also crops or money which he may derive from its use while the property continues to be his homestead. If the homestead is terminated by abandonment or otherwise, the exemption ceases. To hold that the owner of a homestead can only hold as exempt such proceeds of its use as the industry of himself or family has produced would be in many eases to deny the benefits of such exemption entirely.”
And in concluding its opinion the court said:
“We are clearly of the opinion that proceeds derived from the use of the homestead while it remained such are exempt to the head of a family.”
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RUDKIN, District Judge.
On the Sth day of February, 1914, the respondent, Miller, filed his voluntary petition in bankruptcy in the court below, accompanied by the usual schedules of his debts, assets, and property. At the time of filing the petition the bankrupt was in possession of a homestead held by him under the laws of the United States, upon which final proof had not been made. A crop of wheat growing on this homestead was not included in the schedules filed. An order of adjudication followed the filing of the voluntary petition, and this in turn was followed by an order of discharge some two months later. On the 28th day of October, 1914, the petitioner, Olm[70]*70sted-Stevenson Company, a creditor of the bankrupt, filed a petition with the referee in bankruptcy, setting forth the failure of the bankrupt to include the growing crop in his schedule, and praying that the case might be reopened and the bankrupt required to file a supplemental schedule containing the omitted property. An order to show cause was made on the filing of this petition, and upon a hearing before the referee an order was made granting the prayer of the petition and requiring the bankrupt to- file a supplemental schedule. The order itself is not in the record, but we gather from the opinion of the referee that it was to the effect that the bankrupt should account to the trustee for the value of the crop less certain offsets not material here. A petition was then filed with the court below to review the order of the referee in that behalf, and upon a hearing in the District Court the order of the referee was reversed. The present petition was thereupon filed in this court for a revision of the order of the District Court.
[1] It appears from the record that the court below reversed the order of the referee on two grounds: (a) Because the growing crop was exempt and did not pass to the trustee; and (b) because the trustee was estopped by his conduct from claiming the crop. The first question is one of law arising on the pleadings in the bankruptcy court'; but the question of estoppel is. one of fact, which can only be determined by a reference to the testimony. There was no finding by the referee or the court below oh that issue; there was no agreed statement of facts; and if this court is to determine the question at all, it must do so from a consideration of the testimony taken before the referee. But in a proceeding of this kind we are neither required nor permitted to review the testimony. In re Richards, 96 Fed. 935, 37 C. C. A. 634; In re Boston Dry Goods Co., 125 Fed 226 60 C. C A. 118; In re Taft, 133 Fed. 511, 66 C. C. A. 385; In re Pettingill & Co., 137 Fed. 840, 70 C. C. A. 338; Steiner v. Marshall, 140 Fed. 710, 72 C. C. A. 103; In re Roadarmour, 177 Fed. 379, 100 C. C. A. 611; Hall v. Reynolds, 224 Fed. 103, 139 C. C. A. 659
[2, 3] For this reason the petition to dismiss interposed in this court should perhaps be granted; but in any event we agree with the conclusion of the court below on the merits of the question involved. When an order is made setting aside a homestead to a bankrupt, whether the homestead be exempt under the laws of the state or under the laws of the United States, the order of necessity carries with it all growing and unmatured crops. The homestead is allowed to the debtor in order that he may support himself and his family, ndt as a mere shelter from the elements; and if he is not entitled to use and retain the growing crops, well may he ask why is the homestead set apart at all. Let us now view the subject in the light of the authorities. The question, of course, is one of local law-, to be determined by reference to the laws of the state as construed by its highest court. Our attention has not been called to any decision of the Supreme Court of- Montana, but á number of federal cases are cited where the question has been decided adversely to the homestead claimant.
In Re Coffman (D. C.) 93 Fed. 422, it was held that crops growing [71]*71on a homestead set apart under the laws of the state of Texas at the time of an adjudication in bankruptcy are not exempt, and must be surrendered to the trustee in bankruptcy. This decision, however, is clearly in conflict with the repeated decisions of the highest court of that state. Alexander v. Holt, 59 Tex. 205; Parker v. Hale (Tex. Civ. App.) 78 S. W. 555; Staggs v. Piland, 31 Tex. Civ. App. 245, 71 S. W. 762; Moore v. Graham, 29 Tex. Civ. App. 235, 69 S. W. 200. In re Daubner (D. C.) 96 Fed. 805, from the District of Oregon, and In re Hoag (D. C.) 97 Fed. 543, from the Western District of Wisconsin, are based largely on the decision in the Coffman Case, and not upon decisions of the local courts.
In Re Sullivan, 148 Fed. 815, 78 C. C. A. 505, from the District of Iowa, the court held that ripe corn standing in the field on a homestead was not exempt. Whether the court intended to distinguish between ripe com and other growing crops does not appear from the opinion; hut in any event the decision seems to be opposed to the decision of the Supreme Court of the state of Iowa in Morgan v. Rountree, 88 Iowa, 249, 55 N. W. 65, 45 Am. St. Rep. 234. In the latter case it was held that moneys due for rent of a homestead are exempt from execution, and in referring to certain cases relating to growing crops the court said:
"It is clear that such crops are not exempt under statutes exempting personal property, unless specified therein. Such crops, if exempt, must, in the absence of such specifications, be so under the law exempting the homestead. The reasoning in these cases seems to us to loso sight of the spirit and purpose of the law exempting homesteads. The conflict in the cases is explained, in part at least, by the differences in the statutes of these states. It will he observed, however, that in none of them is it held that crops, while growing upon the homestead, are not exempt. To answer the question certified,.we must ascertain the letter and spirit of our statute exempting homesteads. It is certainly the spirit and purpose to exempt, not only the homestead, but also the use thereof, for without the use the exemption would be valueless. It is not simply as a place of shelter, a place in which to live, that homesteads are exempt. but also as a means of making a living, as is shown by the exemption of one-half an acre in town, 40 acres in the country, and the shop or building, when situated on the exempt premises, in which the head of the family carries on his business. The use of the homestead, as well as the homestead itself, is unquestionably exempt so long as the homestead character is maintained. When the homestead is terminated, by abandonment or otherwise, the exemption ceases; hut in this case it was not terminated. We think it is in harmony with the evident spirit and purpose of our statute to hold that the head of a family owning a homestead has the right to hold as exempt, not only the homestead and its use, but also crops or money which he may derive from its use while the property continues to be his homestead. If the homestead is terminated by abandonment or otherwise, the exemption ceases. To hold that the owner of a homestead can only hold as exempt such proceeds of its use as the industry of himself or family has produced would be in many eases to deny the benefits of such exemption entirely.”
And in concluding its opinion the court said:
“We are clearly of the opinion that proceeds derived from the use of the homestead while it remained such are exempt to the head of a family.”
The court in the Sullivan Case disposed of the decision of the state court by saying that so much of the opinion as related to growing crops was obiter. With this conclusion we are unable to agree. The state [72]*72court was discussing the nature of the homestead, with all Its incidents, and, while only the question of rents was there involved, yet the rents and products of a homestead are so closely related that what is said of the one is of necessity applicable to the other.
In re Friedrich (D. C.) 199 Fed. 193, from the District of Minnesota, was based on the ruling in the Sullivan Case from the same circuit, in the absence of any controlling decision by the Supreme Court of the state.
The courts which hold that growing crops are not exempt lose sight of the objects and purposes of home.stead laws, and the reasons for their decisions are by no means conclusive. These reasons are, first, that growing crops may be sold or mortgaged; and, second, that the exemption statutes do not specifically exempt them. But the power of alienation is incident to the ownership of all property, exempt or nonexempt. The homesteader may dispose of his homestead, and of his other exempt property as well; he may dispose of his household furniture, and even of his clothing; but it does not follow from this that a sheriff or trustee in bankruptcy may seize them. Growing crops are not'spécifically exempted by statute; but neither are growing trees, fences, or buildings. They are each and all exempt, however, in our opinion, by necessary implication. A growing crop will pass by a sale of the land, unless expressly reserved, and, as already stated, an order setting aside a homestead is equivalent to a sale or other transfer. The reason for the exemption of crops growing on a homestead, given by the Court of Civil Appeals of Texas in Moore v. Graham, supra, is, in our opinion, unanswerable:
•‘Tlie occupation by tbe bead of a family of a homestead for agriculture is for the purpose of realizing therefrom something to support himself and family, rather than to employ it as a mere place wherein to shelter him and them from the winter’s cold or summer’s heat. If the exemption extended to him does not include an ungathered crop, whether matured or not, it is of no benefit to the owner. In such an event he and his wife and children would only have the privilege of standing in the house or yard, and seeing an officer invade their field, and take possession of, by virtue of an attachment or execution, the crops growing or standing thereon, and appropriate the fruits of their toil, without anyj benefit- from what the law was intended to secure them.”
We see no distinction between crops growing on a homestead claim-existing under the federal statutes and crops growing on a homestead set apart by state laws. Perhaps the reason for upholding the exemption in the former case would be stronger than in the latter; but in either case to set aside a homestead to an unfortunate debtor in the spring, and permit a trustee in bankruptcy to invade it in the fall and carry away the crops, is to keep the word of promise to the ear and break it to the hope.
The judgment of the court below is affirmed.