In re Cross

281 F. 217 | M.D. Penn. | 1922

WITHER, District Judge.

At the time the petition in bankruptcy was filed, the goods of the bankrupt were under levy upon execution of Tinkler & Co., Inc., in which there was waiver of the exemption. The bankrupt claimed certain specified goods under the exemption in his schedules filed, but shortly thereafter, upon the election of a trustee, the bankrupt filed a disclaimer to the exemption of the property enumerated in his schedules, and requested that amendment be noted accordingly. Tinkler & Co., Inc., the execution creditors, resist the amendment of the schedules and insist that they be permitted to have the property claimed set aside for the bankrupt that they might to this extent proceed with their levy and execution.

Bearing in mind that the benefits of the exemption were intended for the relief of the unfortunate debtor, and not as a medium to aid the pursuing creditor, suggests the answer to the proposition presented. It has been frequently stated that the right to the exemption is a personal privilege of the debtor and one over which he himself has absolute control. He may or not claim it at his option. If claimed, he may release it, or lose it, before property is set off, or money decreed to him, in compliance with the statutory provisions. Kyle & Dunlap’s Appeal, 45 Pa. 353; Overseer’s Appeal, 95 Pa. 191; Sutman v. Hogsett, 70 Pa. Super. Ct. 180; In re Jonas Baughman (D. C.) 25 Am. Bankr. Rep. 167, 183 Fed. 668.

In any aspect of the situation, until the specific property has been set off under the exemption, the court has full authority to consider and dispose of whatever is involvedj and since it is against no policy of. the law to permit the withdrawal of the bankrupt’s claim, for it results in no advantage to the bankrupt over the creditors, rather working equity among his creditors within the spirit of the bankruptcy law, the withdrajval is affirmed, and the schedule is amended accordingly.

The rule of Tinkler & Co., Inc., on the trustee, to set aside the exemption, is discharged.