96 F. 800 | W.D. Mo. | 1899
The administration of this estate has reached the point of declaring a final dividend and closing the trusteeship. The report of the trustee shows that the aggregate amount of funds of the estate which came into his hands is $70,487.99. The expenses of the administration and claims entitled to priority ánd which have been paid or ordered paid amount to $4,695.81. The question now presented for determination is, on what sum of the estate is the per centum of commission of the referee and trustee to be calculated? Is it on .the whole fund coming into the hands of the trustee, or is it to be limited to the residue after deducting the expenses of administration and the preferred claims? These questions must be answered by the statute as the sole book of reference.
‘•Referees shall receive as Cull compensation for their services, payable after tli<\\ are rendered, a foe of ten dollars deposited with the clerk at the time the petition is filed in'each ease, except when a fee Is not required from a volun-tar.' bankrupt, and front estates which have been administered before them one per centum commissions on sums to be paid as dividends and commissions, or one half of one per centum on the amount t,o be paid to creditors upon the confirmation of a composition.”
Section 48 (a) declares that:
“Trustees shall receive, as full compensation for their services, payable after they are rendered, a fee of five dollars deposited with the clerk at the time the jtetifion is tiled in each ease, except when a fee is not required from a voluntary bankrupt, and from ('states which they have administered, such commissions on sums to be paid as dividends and commissions as may be allowed by the courts, not to exceed three per centum on the first five thousand dollars or less, two per centum on the second five thousand dollars or part thereof, and out' per centum on such sums in excess of ten thousand dollars.”
¡Section 64- (a) directs that the amount oí all taxes legally due and owing by the bankrupt shall be paid by the trustee on the order of court. Aibsection (b) declares what claims and expenses shall have priority, “to he paid in full out of bankrupt estates,” and the order of their payment. The taxes are to be paid in full, and the priority claims sire also to be paid in full, in the order named in the statute. Until these are paid, there is no fund to be divided among the gen eral creditors. In other words, the term “dividends” can have no application to the priority claims, for the reason that the statute directs them to be paid out of the estate in full, seriatim, before the matter of declaring and paying dividends arises. This is made clear by the succeeding section 65 (a), which declares that “dividends of an equal per centum shall be declared and paid on all allowed claims, except such as have priority or are secured.” It may he conceded (hat said section 65 (a), strictly speaking, does not undertake to define what a dividend is, hut it unmistakably indicates what, in the legislative.mind, was meant hv the term “dividends.” It is an express declaration that in this respect claims having priority are identical with secured claims, neither of which is subject to a declaration and payment of the equal per centum. In Re Ft. Wayne Electric Corp., 91 Fed. 109, it is held that the referee is not entitled to commissions on claims of secured creditors, as they are not dividends within the meaning of the statute. The same statute which declares that no dividends shall he declared and paid on secured claims makes a like declaration in respect of claims entitled to priority. As the commissions to ho paid to the referee and trustee are a per centum “on sums to he paid as dividends,” etc., it would seem logically to follow that, where no dividends are to be declared and paid, no commissions for the referee and trustee can be predicated. Both in common and legal parlance the term “dividends” implies a portion of a fund divided among several owners. Bouvier defines it primarily as “a portion of the principal or profit divided among several owners of a thing.” Black, in his Law Dictionary, defines it primarily as “a fund to he divided. * * * In bankruptcy or insolvency practice, a dividend is a proportional payment to the creditors out of the insolvent estate.” In either case the definition carries
It has been suggested that, inasmuch as the trustee has a duty to perform in making out warrants or checks for the payment of priority claims, and the responsibility of this fund passing through his hands, he ought to be entitled to a commission as compensation. If this argument be valid, it must apply equally to all the classes of priority claims as to any one. The costs of preserving the estate, to be first paid, would likewise be subject to the commission, with which the referee has nothing to do; as also to the filing fees paid by the petitioning creditors in involuntary cases, with which neither the referee nor the trustee has anything to do, as these fees are deposited with and paid out by the clerk under order of court.
It is also suggested that the term “dividends,” as employed in
The court is impressed with the fact that the conclusion reached by it may be a hardship upon the referees and trustees under certain conditions, but such considerations should be addressed to the legislative branch of the government, and cannot control the judgment of the court in applying the statute as congress has made it. The answer to the question submitted is that the per centum of commissions of the referee and trustee cannot be based upon the disbursements made in payment of claims entitled to priority, but must be limited to dividends and commissions on the residue of the estate.