In re Donahey

• Decision Date: 01 February 1910
• Docket Number: in Bankruptcy.,1,433
• Citation: 176 F. 458
• Parties: In re DONAHEY.
• Court: U.S. District Court — Middle District of Pennsylvania

176 F. 458

In re DONAHEY.

No. 1,433, in Bankruptcy.

United States District Court, M.D. Pennsylvania.

February 1, 1910

H. W Petriken and Atkinson & Pennell, for exceptions.

Wilberforce Schwoyer and J. Howard Neely, for bankrupt.

ARCHBALD District Judge.

The right of a bankrupt to his exemption is to be determined as of the date when it is claimed. In re O'Hara (D.C.) 20 Am.Bankr.Rep. 714, 162 F. 325. And as in this instance he was a resident of Pennsylvania at the time of filing his schedules, where claim was made, it is immaterial that he may now be a fugitive from justice in another state to which, as it is said, he has withdrawn in order to escape arrest by his wife for desertion. Springer v. Lewis, 22 Pa. 191; McCrary v. Chase, 71 Ala. 540; Caldwell v. Renfro, 99 Mo.App. 376, 73 S.W. 340; 12 Am. & Eng. Ency. of Law (2d Ed.) 85, 86. It is denied that this is the fact, but the certificate of the referee seems to assume that it is; his conclusion being that it is of no consequence, the absence of the bankrupt not having interfered with the settlement of the estate. But the $300 exemption law in Pennsylvania was passed for the benefit of resident citizens, in order that they may not be reduced to utter poverty, and become charges on the community, and the right to it cannot therefore be asserted where this relation does not exist.

Yelverton v. Burton, 26 Pa. 354; McCarthy's Appeal, 68 Pa 218; Dock v. Cauldwell, 19 Pa.Super.Ct. 51; Collom's Appeal, 2 Penny. (Pa.) 130; Snow v. Dill, 13 Phila. (Pa.) 138; In re O'Hara (D.C.) 20 Am.Bankr.Rep. 714, 162 F. 325. If there has been any such withdrawal from the state here, however, it took place after the claim was made, which, being good at the time, is not to be thrown out because of the bankrupt's having gone away afterwards.

It is further objected, however, that the exemption was not properly claimed; money and not property having been asked for. As it appears in the schedules, the claim is in terms 'for the proceeds of personal property, $300,' which does not conform to the requirement of the statute. The debtor is called upon to designate the particular property which he desires to retain, which he has the right to do to the value of $300, as determined by a due appraisement. But it is goods, and not the proceeds of them, that he is entitled to, and it is these, therefore, that he must specify and demand. Hammer v. Freeze, 19 Pa. 257; In re Haskin (D.C.) 6 Am.Bankr.Rep. 485, 109 F. 789; In re Wunder (D.C.) 13 Am.Bankr.Rep. 701, 133 F. 821; In re Pfeiffer (D.C.) 19 Am.Bankr.Rep. 230, 155 F. 892; In re Blanchard (D.C.) 20 Am.Bankr.Rep. 417, 161 F. 793. He cannot, as here, claim money resulting from a sale. The case is not like In re Renda (D.C.) 17 Am.Bankr.Rep. 521, 149 F. 614, where, after the bankrupt had designated the goods which he desired to have set aside, they were sold by arrangement with the trustee, which, it was held, did not prevent him from coming in on the fund. Neither is it like Burke v. Guaranty, Title & Trust Company, 14 Am.Bankr.Rep. 31, 134 F. 562, 67 C.C.A. 486, where specified property was claimed, the only objection to it being that it was not properly itemized. There may be some things in the opinion which go further than that, but that is the real question involved, and therefore the one that must be taken to have been decided. It may be, also, that where the only property out of which the bankrupt can secure his exemption is indivisible and above the value of that which is allowed him, a different rule should obtain, a sale in that case being the only alternative. In re Oderkirk (D.C.) 4 Am.Bankr.Rep. 617, 103 F. 779; In re Kane, 11 Am.Bankr.Rep. 533, 127 F. 552, 62 C.C.A. 616. But, according to the bankrupt's schedules here, he had liquors and cigars to the value of $500, and furniture and carpets worth $3,000 more; so that there was no dearth of goods out of which to select, and no occasion, therefore, for introducing any such exception.

It is said, however, that there was an arrangement between all parties concerned by which, for the purpose of getting better prices for the estate, the hotel property-- furniture liquors, lease, license, and good will-- were taken possession of by the trustee and disposed of as a whole, which would have been seriously interfered with, and the...