The opinion of the court was delivered by: BYERS
Motion to review and revise an order of a referee in bankruptcy denying a trustee's motion to compel the bankrupt "to execute and deliver the necessary instruments, papers and documents to enable Louis P. Rosenberg, as trustee, to obtain the sum of $1,359.49 representing the cash surrender value of policies" of life insurance, three in number, which are described; and for an order directing the insurer to pay over that sum "representing the cash surrender values of the said policies traced to the premiums paid by the bankrupt since 1931".
The referee denied the motion, because he was unable to find that the premiums were paid by the bankrupt "with intent to defraud his creditors".With that conclusion, the court is in agreement.
The dates of these policies are: Nos. 9173632 and 9173633, July 21, 1925, and No. 12914915, July 23, 1936. The judgment held by the sole creditor in the bankruptcy proceeding was recovered in 1935 on a note, and the suit thereon was started in 1931.
The petition was filed August 2, 1939, and the trustee's theory is that the bankrupt was insolvent continuously forward from 1929, when the note was executed, because he testified as follows:
"Q. Do you mean to tell us that since 1929, when this note was made, that you have not had any money? A. No.
"Q. Did you pay any part of that note? A. No."
"Q. But you do know that you were never in a position to pay off this note? A. Not since that time.
"Q. Do you know what it is to be insolvent? A. I am insolvent now.
"Q. How long have you been insolvent? A. Well, I am employed and it takes every dime that I earn to get along and that is what I call being insolvent.
"Q. Since the time the judgment was obtained against you you have been insolvent, is that right? A. Absolutely."
It will be observed that he was not asked the relation between his assets and his liabilities.
His own opinion of what constituted insolvency can hardly be accepted in place of ...