McFarland's Estate, 16 Pa. Super. 152

McFarland's Estate

16 Pa. Super. 152 | Pa. Super. Ct. | 1901

Opinion by

Rice, P. J.,

Assuming that Mr. Hicks had authority, or that the Peoples’ Building and Loan Association is estopped to deny his authority to make the agreement of December 23,1893 with Thomas P. Gehr, it would follow that by virtue of the latter’s assignment for the benefit of creditors, his title to the McFarland note and his interest, under the Hicks agreement, in the McFarland judgment passed to his assignee, unless that result was prevented by the reservation in his deed “of such an amount of property, real, personal and mixed as is by law exempt.” Such reservation entitles the assignor to retain and have set apart to him any of the assigned property or money, being the proceeds thereof, to the amount of $300. His right of selection is not confined to any particular description of property, and his right to the property, when selected, is as perfect as if it had been specially excepted out of the assignment. After he has selected the property, certainly after it has been appraised and set apart to him, he may make what disposition he pleases of the reserved property. But none of the cases are authority for the proposition that it is not incumbent on him to make the selection of the property that he will retain. The time when the demand is to be made depends upon the circumstances, but that he must indicate in some unequivocal manner that he elects to retain the property, or to have set apart to him the proceeds thereof, under the reservation contained in his deed, is clear. Speaking of Peterman’s Appeal, 76 Pa. 116, a case much relied on here, Mr. Justice Green said: “We certainly did not say, or mean to say, in that case, that a demand was not necessary, or that the right to claim the benefit of the exemption could not be waived by undue laches. The decided cases on those subjects were not overruled or even discussed. On the contrary we recognized the facts that the benefit of the exemption was regularly claimed, that personal property was actually selected, appraised and set apart, to a certain amount, and that as to the balance of the exemption it was claimed as soon as the right to demand and receive it arose: ” Chilcoat’s Appeal, 101 Pa. 22. See also Shaeffer’s Appeal, 101 Pa. 45, 50. In the present ease there was an appraisement of personal property, and this was claimed and set apart to the assignor. The McFarland note *155and the assignor’s interest in the McFarland judgment were personal assets, but these were not included in the appraisement, and there is no evidence that the assignor asked to have them included. Not only so, but there is no evidence that he has ever indicated in any way that he desired to have them set apart to Mm as part of his exemption. Nor is it to be presumed that such was his desire or intention from the mere fact that he did not turn them over to the assignee. If there is any presumption arising from the fact that he retained them and did not bring them to the knowledge of the assignee, it is one which would interfere very seriously with any subsequent claim to have them set apart to him under the exemption. See Kreider’s Estate, 185 Pa. 578. But it is unnecessary to decide whether or not the assignor forfeited his right to the exemption by laches or fraud; it is sufficient to say that he has ..never demanded or asserted his right to have his interest in the McFarland judgment set apart to him under the reservation Contained in his deed. This alone is conclusive against the claim of Islett & Wray, to whom, it is asserted, he attempted to transfer these assets long after his assignment for benefit of creditors, more especially as there is no assertion that he attempted to transfer to them his rights under the exemption laws. The right to the exemption is a personal privilege, and did not pass to them by operation of law.

The decree is affirmed and the appeal dismissed at the costs of the appellants.