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IN RE ROGERS

May 26, 1942

In re ROGERS


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a motion to dismiss the petition to review, and re-affirm the Referee's order made on the 14th day of April, 1942, denying the bankruptcy's petition to amend.

The facts are as follows:

 On November 17, 1939, the bankrupt filed a voluntary petition in bankruptcy in the Clerk's Office of the Court.

 The bankrupt's schedules listed liabilities of $154,947.93, and no assets of any value, except wearing apparel valued at $150 claimed to be exempt. No policy of insurance on the bankrupt's life was scheduled, nor was any exemption claimed for such a policy, although the bankrupt was at that time the owner of a policy of insurance on his life, which, at the time of the filing of the petition in bankruptcy herein, had a cash surrender value of $9,270.70.

 The bankrupt disposed of his property before filing his petition in bankruptcy, but we are not concerned with that; our only concern is with the cash surrender value of the insurance policy.

 The Trustee instituted a summary proceeding against the bankrupt, and his wife, for the turn over of the value of said life insurance policy, which had neither been scheduled, nor claimed to be exempt by the bankrupt in his schedules.

 By way of defense it was contended that in the Spring of 1937 the bankrupt had orally assigned the policy to his wife.

 On February 25, 1942, the Referee filed his decision, finding that there had been no oral assignment of the policy of insurance, that the bankrupt was the owner of the policy in question, and in possession of it; and that the Trustee was entitled to the cash surrender value of it as of the date of the filing of the petition in bankruptcy herein. The order made by the Referee on March 2, 1942, with other provisions, provided that the bankrupt might within ten days pay the cash surrender value to the Trustee, and in default of which it was provided that he turn over the policy and such instruments as the insurance company would require in order to effect payment to the Trustee of $9,270.70.

 The bankrupt and his wife filed petitions to review the Referee's order of March 2, 1942.

 On March 17, 1942, after the making of said order by the Referee, and two years and four months after the filing of the petition in bankruptcy herein, the bankrupt made a motion before the Referee to amend his schedules in bankruptcy. The amendment originally sought was to amend the bankrupt's schedules in bankruptcy, so as to list the policy of insurance, as having been assigned to the bankrupt's wife, and to claim an exemption for the assigned policy; this being untenable, the bankrupt changed his request for an amendment by eliminating reference to the alleged assignment to his wife, and asking leave to amend so as merely to show that the bankrupt was the owner of the policy, and that he claimed an exemption of it.

 On April 9, 1942, the Referee rendered an opinion denying the motion.

 On April 14, 1942, the Referee made the order denying the motion.

 On April 21, 1942, the bankrupt filed the petition to review, which I ...


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