concurring specially. I agree with the Chief Judge in the main, but do not go quite so far as he does as to some of the salient points of the case.
There is no question that the trial court’s jurisdiction in this ease rests on possession, and not on title. The petition presented a prima facie case of possession unlawfully invaded by the trustee in bankruptcy, and was not subject to demurrer; the question is, how far did the proof sustain the petition?
In order for the plaintiff to recover, it was necessary for her to show not merely that she had title to the personal property, but *275also and specifically that she held possession of it exclusively of her husband, the bankrupt, and that the trustee in bankruptcy invaded this exclusive possession. The State court has no jurisdiction to settle the title of th'e property in a suit against the trustee in bankruptcy; but if the trustee, in the attempt to discharge his duties, violates an actual possession of propertjr lawfully held by an adverse claimant, he -can be held liable in a State court for the trespass — the violation of the possession being the gist of the trespass.
Under the bankruptcy act, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418), as construed by authoritative decisions, all possession of property held, actually or constructively, by a bankrupt, at the time of the filing of the petition, passes to the bankruptcy court and confers on it exclusive jurisdiction to settle contests as to the ownership. So that the possession of the bankrupt becomes the possession of the trustee in bankruptcy whenever the latter qualifies — the possession of the trustee being constructive or legal possession until he reduces' the propert}1, to his actual detention and corporeal control.
In the case at bar, therefore, if the bankrupt, at the time of the adjudication, had the possession (actual or constructive) of the property involved, the subsequent transaction which gave rise to the present action was not a taking of possession by the trustee, but .the mere retention and enforcing of a possession which in the eye of the law he already had.
As to the house, and as to the household furniture, it is clear that the bankrupt had the possession, and that the possession passed to the trustee. The court plainly erred in submitting to the jury any right of the plaintiff to recover because the trustee went into the house (though the plaintiff, being the wife of the bankrupt, was using it as a home), or because he took the furniture, irrespective of whether in point of fact it was the wife’s furniture or not.
As to the money: While the husband is prima facie in possession of the family home, where he and his wife jointly reside, and of the things located therein, yet this presumption is rebuttable. A wife may, even as against her husband, maintain such exclusive corporeal control of property that he will not in law he regarded as having possession of it, either actual of constructive. In this case, if the plaintiff, notwithstanding she was the wife of the bankrupt and notwithstanding she resided in the house with him, *276had exclusive physical control and detention of the trunk and the money, her possession would be such as to. make the defendant’s act in taking the trunk and the money away a trespass, provided, of course, the trunk and the money did not in fact belong to her husband. Compare Pollock & Wright on Possession, 38, 4-0. I think, therefore, that so far as the money was concerned (the trunk and the remainder of its contents having been returned), the plaintiff might recover in the State court; and my associate, Judge Russell, concurs with me in this view.
As to the punitive damages I am inclined to agree with Judge Hill. The alleged invasion of the house and the seizure of the household goods being out of the case, for lack of jurisdiction in the State court, the question is, did the defendant’s act in taking and keeping the money indicate such wantonness as to authorize the assessment of punitive damages? I think not. Any prudent man under similar circumstances would have kept it till the title to it could have been decided; and it must be remembered, so far as the mere taking of it is concerned, that the defendant did not even know that there was any money in the trunk when he took and carried it away from the defendant’s possession. It is true that the trustee and the bankrupt had an altercation in the presence of the plaintiff, and that in the course of it the defendant used profane language to the bankrupt, but this was a separate affair and not a part of the damage of taking the trunk and the money, which the trustee did not even decide to take until after this' altercation was ended. Besides, it is impossible for an impartial mind to overlook the glaring fact that the bankrupt and his wife were acting very suspiciously and in apparent bad faith. The money and the furniture may have belonged to the plaintiff (personalty, I think that the money and most of tire furniture'probably did belong to her), but, with all that, there are many things which would have fully justified the trustee in believing that the property belonged to the estate in bankruptcy and that the plaintiff and her husband were about to move it away to another State. However, as the question of punitive damages is dependent purely on the facts, which may vary in the different trials, we deem it unnecessary to malee an authoritative ruling on this point at this time.
The judgment of the court below must be reversed, but I concur specially upon the points mentioned above.