In Re Barnett

124 F.2d 1005 (2nd Cir. 1942)

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Nature of the Case

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Facts

The District Court reversed an order of the referee and declared that an instrument which Cecilia Barnett, the bankrupt, assigned to her mother, Clara Essenfeld, her testate and intestate interest in her father's estate, was invalid as to her trustee in bankruptcy. The assignment occurred in 1935 for $5000 consideration then paid by her father gave Clara all her rights in her father's estate. Four years later, Cecilia declared bankruptcy and was adjudicated. The following day, her father died, and his 1935 will was probated. The trustee in bankruptcy petitioned for the bankrupt to execute an interest assigning the interest in Cecilia's father's estate to the trustee free and clear of claims by Clara. Cecilia and Clara contested this application, and the referee held that the assignment was valid as against the trustee and denied the application. The judge reversed and granted the requested order. Cecilia appealed. The attorney for Cecilia signed his brief as attorney for both Cecilia and Clara and was under the impression that the rights of both parties were before the court. No objection was made by the trustee. Cecilia and Clara asserted that the consideration paid to the bankrupt by her father operated as an ademption. This issue was not raised before the District Court, and the trustee objected to its introduction.