The theory of the bankruptcy system is, that it places in the hands of the assignees all the property and effects of the bankrupt which can be made available for his debts; and renders unnecessary and therefore supersedes any other measures on their part (n) The real estate of the bankrupt may be an important part of his property; and it all goes with the rest to his assignees.

* The assignment by the register to the assignee should include all interests in land vested in the bankrupt by any means whatever, whether of law or of the bankrupt's act. This rule will embrace equally all the rights or interests vested in him by contract, in respect to which the assignees "have all his remedies, and among them that of specific performance, (o) and also * all those which come to him by devise or inheritance. (p)1 And if these rights are only inchoate, and require some act .on the part of the insolvent to make them com(n) See Archbold on Bankruptcy; Cooke on the Bankrupt Law; Deacon on Bankruptcy; 2 Kent, Com. 390; Com. Dig. tit. Bankrupt, D (26); 2 Bl. Com. 285, 485; Ex parte Newhall, 2 Story, 360; In the matter of Cheney, 5 Law Reporter, 19; Clarke v. Minot, 4 Met. 346; French v. Carr, 2 Oilman, 664.

(o) Hillary v. Morris, 5 C. & P. 6; Valpy v Oakeley, 16 Q. B. 941. 6 Eng. L. & Eq. 168; Ward v. Jenkins, 10 Met. 583; Lombard Bank v Thorp, 6 Co wen, 46; Alivon v. Furnival, 4 Tyrw. 751. I Cromp M. & R. 277; Carnegie v. Morrison, 2 Met. 381; Gibson v. Carruthers, 8 M. & W. 321 ; Akhurst v Jackson, 1 Swanst. 85; Boorman v. Nash, 9 B. & C. 145; Goodwin v. Lightbody, Daniell, 153. See also Coles v. Trecothick, 9 Ves. 234;

Ex parte Peake, 1 Madd. 346, Jackson v. Lever, 3 Bro. C C. 605, Mortimer v. Capper, I id. 156, Gray v Bennett, 3 Met. 522; Sharker. Roahde, 2 Rose, 192; Brooke v. Hewitt, 3 Ves. 253; Willing-ham v Joyce, id. 168. If a contract for* lease has been made, merely for the personal accommodation of the bankrupt, the assignees are not entitled to specific performance. Flood v. Findlay, 2 Ball & B. 9.

(p) Tudway v. Bourn, 2 Burr. 716; Toulson v. Grout, 2 Vera. 432; Ex parte Ansell, 19 Ves 208; Ranking v. Barnard, plete, the assignee may in general do that act, or the court of equity will compel the insolvent to do it. (q)

5 Madd. 32; Ex parte O'Ferrall, I Glvn

& J 347; Cherry v. Boultbee, 4 Mylne & C 442; Ex parte Man, Mont. & McA. 210; Ex parte Makins, Mont. D & De G. 613; Brandon v. Robinson, 1 Rose, 197.

1 Under a devise to a man and wife for their lives, and at their death to children named then living, a child's interest passes to his assignee in bankruptcy during their lifetime. Belcher v. Burnett, 126 Mass. 230. But where money was given in trust, the income to be paid yearly to the donor's son, for the support of himself and wife and the education and support of their children, and the principal and annuity were declared inalienable and not subject to debts, neither the annuity nor any part of it was allowed to pass to the son's assignee in bankruptcy. Durant v. Mass. Hospital Ins. Co. 2 Lowell, 575. See Nichols v. Eaton, 91 U. S. 716; Broadway Bank v. Adams, 133 Mass. 170; Billings v. Marsh, 153 Mass. 311 - K.

Under the statute of 1841, some question arose where a devise fell to the insolvent after the proceedings commenced, but before he obtained his discharge. It is certainly true that a devise is not effectual to pass the property to the devisee, without his consent and acceptance, any more than a gift can vest in the donee without his consent and acceptance. If, then, the bankrupt refused to accept, the devise might pass to the heir of the devisor, perhaps by a corrupt bargain with the bankrupt, and the creditors be defrauded. To guard against this mischief, it was held, that if the devise be absolute, and without charge or incumbrance, and plainly for his benefit, the law will presume his acceptance, and the assignees take his title.(r) And we think the principle * would be applied, even if there were charges or conditions to the devise; but, upon the whole, it would certainly be beneficial; and of course the assignees would take the devise cum onere. (s)

(q) This point will be found consid-I in the cases above cited in note (h), p. *469, with reference to indorsement, and the rights of the assignees in the contracts of the bankrupts.

(r) If a devise falls after the petition and before decree, this will pass to the assignees of the bankrupt. In Ex parte Newhall, 2 Story, 360, Story, J, said "The third section of the bankrupt act of 1841, chap 9, declares, that all property and rights of property of every . bankrupt who shall, by the decree of the proper court, be declared a bankrupt within the act, shall, by mere operation of law, ipso facto, from the time of such decree, be deemed to be divested out of the bankrupt; and the same shall he rested, by force of the same decree, in such assignee as, from time to time, shall be appointed by the proper court for this purpose. It seems to me that the natural, and even necessary, interpretation of this clause is, that all the property and rights of property of the bankrupt, at the time of the decree, are intended to be passed to the assignee. It is true that the decree will, by relation, cover all the property which he had at the time of filing the petition, and at all intermediate times, to effect the manifest .purpose of the act But this is rather a conclusion, deducible from the general provisions and objects of the whole act, than a positive provision. It results, by necessary implication, in order to effect the obvious purposes of the act, and to prevent what otherwise would or might be irremediable mischief. ... I take the plain distinction, running through the act, to be, that it is not intended to touch any property or rights of property which may be acquired by a descent to him, after the decree in bankruptcy, by which he has been decreed to be a bank-rupt, but that it covers all his property, acquired by or descended to him, or belonging to him, before the decree. The English statutes of bankruptcy go further, and rest in the assignee all the property of the bankrupt which comes to him by descent, distribution, or otherwise, before the discharge is granted. But this doctrine stands only upon the positive language of those statutes, and not upon any general principles of law applicable to the subject." Ex parte Fuller, 2 Story, 327; Townsend v Tick-ell, 3 B. & Ald. 31; Doe v Smyth, 6 B & C 112 ; Brown v. Wood, 17 Mass. 68; Ward v. Fuller, 15 Pick. 185. The 26th section of the statute of 1867 is substantially similar to section 3d of the statute of 1841. In the cane of Ex parte New-hall, cited in the last note, the facts were, that after the filing of the petition, and before the decree in bankruptcy, the bankrupt became entitled to certain property as heir to his mother, to whom, when alive, he had been indebted. Judge Story held, that the assignee of the bankrupt was only entitled to the bankrupt's moiety, or distributive share, after deducting therefrom his debt to the estate. See the cases cited in note (b), ante, p.* 468.