such scrupulous care has been evinced. It was not anticipated by the law-makers that, in a case where the debtor without fraud voluntarily turns over to his creditors, for equal division among them all of his property, reserving only such property as the law has placed beyond the reach of creditors, many safeguards were necessary to protect exemptions, and hence but few were provided. But the assignment law not only recognizes the debtor’s right to reserve property assumed to be exempt from execution, (subdivision 3, § 4663, id.,) but goes further, and requires the assignor to embrace in a sworn inventory a list of all the assignor’s property which was exempt at the date of the assignment, (subdivision 6. § 4667, id) This presents a mode, though an incomplete one, whereby an insolvent debtor may, under the statute, indicate and select an amount of property which he claims to be beyond the reach of creditors as exempt property. It is true that such mode of selecting the debtor’s exemptions is ex parte, and could not prevail in a case where it appeared, upon proper investigation, that the selection so made was fraudulent or without warrant of law. But, inasmuch as such selections are made under the terms of the assignment statute, the courts will not regard them as prima facie illegal What the statute expressly directs debtor to do, cannot, when done, constitute a legal fraud.
The same question presented in this case has been passed upon by thecourtsof many of the states, and we have found no modern case going to the length claimed by plaintiff's counsel. In Wisconsin it is ruled, in a similar case, that, “if more was retained than allowed by the statutes, the excess could be recovered by the assignee under direction of the court.” Severson v. Porter, 40 N. W. Rep. 577. Again, in the same state, where it is held that a firm, as such, is not entitled to any exemptions, a certain firm made an assigment of all its property for the benefit of its creditors, “except such as may-be exempt from seizure on attachment or execution by the laws of the state of Wisconsin.” It was held that such exemption was inoperative,—“all the property of the firm passed to the assignee,”—and such a reservation did not operate to render the assignment void. Bank v. Hinman, 21 N. W. Rep. 280, citing other Wisconsin cases. The same doctrine
