Beall v. Dushane

Opinion by

Mb. Chief Justice Paxson,

This was an attachment execution in the court below. A suit had been commenced by James L. Shaw in 1882, against the Pittsburgh & Connellsville R. R. Co., and in this suit one A. 0. Tinstman was made a use plaintiff on Oct. 2, 1885. A judgment was recovered therein, of which the share of Tinstman amounted to $947.48, which is the sum in controversy. Tinstman became indebted to Alpheus Beall, the plaintiff, and for that indebtedness Beall obtained a judgment against him for $730.54 on Oct. 4, 1886. Upon that judgment this attachment execution was issued June 9, 1888, and served on said railroad company, garnishee, June 15, 1888. So far there is no difficulty. It appears, however, that, in 1876, A. O. Tinstman was adjudicated a bankrupt, and an assignee appointed. This assignee died in Aug., 1889, and in December of the same year Joshua Dushane was appointed assignee in bankruptcy in his place. On Dec. 11, 1890, said Dushane intervened in this proceeding and made claim to said fund as assignee in bankruptcy of said Tinstman. This was the first move on the part of the assignee, although the litigation began in the summer of 1882, and Tinstman himself appeared upon the record as a claimant to the fund in Oct., 1885, which was more than five years prior to the claim now made by the assignee.

The learned judge below held that the assignee was not entitled to the money, because of his great delay, and, also, by reason of the provisions of § 5057, Revised Statutes of the United States, act of March 2, 1867, chapter 176, § 2, which provides that: “No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property, or rights of property, transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.”

We do not rest our decision upon the act above cited, as its application to the facts of this case is more than doubtful. We think, however, that the delay of the assignee is fatal to his claim. An assignee in bankruptcy is not bound to take possession of all property that vests in him by force of the assignment. It has always been a principle of the bankrupt law that property, which, from its nature or condition, may he a burden rather than a benefit to the estate, does not pass to the assignee without a distinct acceptance by him, and that in the absence of such acceptance it remains with the bankrupt: Glenny v. Langdon, 98 U. S. 20; American File Co. v. Garrett, 110 Id. 288. It is needless to cite additional authorities for so plain a proposition. It is settled law, both in England and in this country. In Amory - v. Lawrence, 3 Clifford, 523, the court held that where the assignee elects not to take the right of the bankrupt, and charge the estate with the burden of an uncertain litigation, the right, whatever it is, survives to the bankrupt. And in Taylor v. Irwin, 20 Federal Reporter, 615, it was held, that it is for the assignee to determine whether or not, in the given case, he will assert his right to property. This election must be exercised within a reasonable time. A failure to do so may, as against third parties, be construed as an election not to claim the property: Citing Amory v. Lawrence, supra, and Smith v. Gordon, 6 Law Rep. 313.

There was, perhaps, good reason why the assignee did not earlier assert his claim in this case. The matter involved was in litigation, which was protracted, uncertain and expensive. He may have thought it wise not to burden the assigned estate with a litigation that might result in loss. Be that as it may, we do not think he can come in at this late day and gather the fruits of the litigation. The parties had a right, under the circumstances, to assume that he had made his election to abandon it. We are of opinion that the court below committed no error in awarding the fund to the attaching creditor.

Judgment affirmed.