Burke v. Guarantee Title & Trust Co.

• Decision Date: 16 January 1905
• Docket Number: 51.
• Citation: 134 F. 562
• Court: U.S. Court of Appeals — Third Circuit
• Parties: BURKE v. GUARANTEE TITLE & TRUST CO.

134 F. 562

BURKE v. GUARANTEE TITLE & TRUST CO.

No. 51.

United States Court of Appeals, Third Circuit.

January 16, 1905

Albert York Smith, for petitioner.

Mr Morris, for appellee.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS Circuit Judge.

This cause is before us upon the petition of Michael Henry Burke a voluntary bankrupt, by which, under section 24b of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 553 (U.S Comp. St. 1901, p. 3432)), he asks this court to revise in matter of law an order of the District Court for the Western District of Pennsylvania by which his claim for exemption, as made in the schedule originally filed by him, was disallowed and his application for leave to amend was refused. The claim was made in the proper place in the schedule, as follows:

'I claim the exemption of $300,000, under the act of the General Assembly of Pennsylvania, 1849, section one, of the following property: Stock in trade in my shoe business at No. 111 Frankstown avenue, in city of Pittsburgh, county of Allegheny, Pa.; stock in trade consisting of shoes and slippers, and men's, women's, and children's shoes and slippers, as set out in schedule B, No. 2, under head of C, $300,000.'

The learned referee (whose action the court simply approved) was of opinion that this claim 'is fatally defective, in that it does not specifically enumerate the articles claimed as exempt under the exemption law of the state of Pennsylvania ' But, as we have said in an opinion delivered to-day in the case of Lipman v. Stein, 134 F. 235, though a bankrupt's right to exemption must be deduced from the state law, yet it is to be asserted in the manner prescribed by section 7 of the Bankruptcy act itself (Act July 1, 1898, c. 541, 30 Stat. 548 (U.S. Comp. St. 1901, p. 3425)); and that section does not require that he shall enumerate the articles claimed as exempt, but only that 'the claim for such exemption as he may be entitled to' shall appear in the schedule which he is required to file. The claim in this case was for $300 'of the * * * property * * * set out in schedule B, No. 2, under head of C, ' and that the bankrupt was entitled to the exemption of that property to the amount stated is unquestionable. This was his right, and its denial was not justified by the fact that, in setting out the entire property, he seems to have excessively estimated its value. What he meant to claim was so much of that property as was of the value of $300, and this, we think, he made clearly apparent. The law imposed no further condition upon him. It nowhere exacted a specification and appraisement by him of the articles claimed. Having given notice of his claim, it was not his duty, but that of the trustee (section 47, subd. 11, 30 Stat. 557 (U.S. Comp. St. 1901, p. 3439)), to 'set apart' the bankrupt's exemptions and report the items and estimated value thereof to the court. ' And there is not a word in the statute to warrant the conjecture that Congress intended that the bankrupt...