Weiskettle's Appeal , 1883 Pa. LEXIS 202 ( 1883 )

Mr. Justice Stebbett

delivered the opinion of the court,

In the supervision and control of trustees, especially assignees under deeds of voluntary assignment, our courts of common pleas are wisely clothed with very large discretionary powers; and their orders and decrees in such cases should not be modified or reversed except for manifest abuse of such discretion. By the Act of June 1836, assignees are required, within thirty days after execution of a voluntary assignment, “ to file, in the office of the prothonotary of the court "of common pleas of the county in which the assignor shall reside, an inventory or schedule of the estate or effects so assigned;” and, as soon as the inventory and appraisement are filed to “ give bond or bonds, with at least two sufficient sureties, to be approved by one of the judges of said court in double the amount of the appraised value of the estate Purdon, 92, 93, pl. 9 & 13. The Act of March 1831, P. L. 193, provides that in all cases where assignees neglect or refuse to give the required security, it shall be lawful for the court, on application of any person interested, “to call such defaulting assignees before them, and to dismiss them from said trust and appoint other suitable persons in their places and stead, who shall cause to be made the inventory and appraisement and give the security required by law.” The first-mentioned Act also provides that whenever it shall be made to appear to the proper court that any assignee or trustee has neglected or refused, when required by law, to file a true and perfect inventory, or to give bond, or to file an account of his trust, or that he is wasting, neglecting or mismanaging the trust estate, or is in failing circumstances, or about to remove out of the jurisdiction of the court, it shall be lawful for the court in any such case to cite the assignee or trustee to appear and show cause why he should not be dismissed ; and, on return of the citation, to require such security as may be deemed reasonable, or the court “ may proceed at once to dismiss such assignee or trustee from the trust:” Purdou, 1417, pi. 12 & 13. It thus appears that courts of common pleas are invested with ample power to summarily dismiss trustees whenever good reason is shown therefor; and among the recognized good causes for removal, are mismanaging of the estate, failing circumstances and neglect of duty : Piper’s Appeal, 8 Harris G7.

The petition presented by appellee, two months- after execution of the assignment, charged, inter alia, that appellant is “ entirely irresponsible and has not filed any inventory of the estate coming into his hands, nor given any bond in this state as required by law, and is mismanaging and neglecting the trust estate; that there is a large amount of property in this state, belonging to said insolvents, and said assignee has sold and dis-disposed of portions thei’eof.” If these averments were true, the court, in the absence of full and satisfactory explanation by the assignee, was-clearly justified in discharging him from the trust. The allegation that appellant is personally irresponsible is not denied in the answer. The charge that lie has neither filed an inventory nor given bond in this state is admitted to bo true, and the excuse given for the omission is that the assignment was “dated, executed, delivered and accepted at Olean in the state of New Yorkthat it was “ drawn, executed, delivered and accepted under and by virtue of the laws of said state relating to voluntary assignments,” and that said laws have been fully complied with, by duly recording the -assignment in the proper county, filing inventories, giving bond, ete., in that state. This might, perhaps, be regarded as a sufficient answer if it had also been averred that J. W. Humphrey & Co., the assignors, or either of them were residents of New York; but nothing of the kind was done. It is asserted by the appellee in his counter-statement, and not denied by appellant that, at the time of the assignment, the assignors5 principal place of business was at Bradford, McKean county ; tliat one member of the firm was then a citizen of that county and the other a resident of Erie county, Pennsylvania. For aught that appears these facts were practically admitted iu the court below, as they are here. If so, the court was clearly right in refusing to sanction such a palpable evasion of our voluntary assignment law ; and an assignee who would lend himself to such a transaction should be promptly removed. Voluntary assignments in this state are governed by the Act regulating them, and not by tlie general law of contracts. The Act of 1836, as we have seen, requires the assignee to file an inventory in the prothonotary's office of the county where the assignor resides, within thirty days after the execution and delivery of the assignment, etc. It also provides for the administration of the assigned estate, and the equitable distribution of the proceeds thereof. These and other provisions of our assignment Jaw cannot be evaded by merely crossing the state line and undertaking to execute an assignment “ under and by virtue of the laws of55 an adjoining state, which may perhaps sanction preferences that are forbidden here. Nor does it appear that the provisions of the New York Act, under which the assignee claims to have acted in recording the assignment and proceeding to administer the trust in that state, are'applicable to non-resident debtors. On the contrary, its provisions, like those of our own voluntary assignment law, are restricted to debtors resident within the state: Ockerman v. Cross, 54 N. Y. Rep. 29.

The record shows that appellant appeared in obedience to the citation and filed an answer in which he either expressly or tacitly admits some of the charges contained in the petition, ami attempts to meet others in the form of confession and avoidance ; that a hearing was had in open court, and, after arguments of counsel for the parties in interest, the decree was entered. The allegations contained in the petition are clearly sufficient to give jurisdiction; and, in view of the large discretionary power with which the court below is invested in such cases, considered in connection with what appears upon the face of the record before us, we are not satisfied there was any error in entering the decree.

Decree affirmed and appeal dismissed at the costs of appellant.