KEYSER US. BREITBARTH. Appeal from Probate Court. J Decided November 26, 1883. The CHIEF JUSTICE and Justice JAMES sitting. If an administrator pays a claim of a creditor of his decedent's estate, and returns it in his account, the Orphans' Court may allow it or reject it; but if the administrator refuses to pay such a claim, the Orphans' Court has no authority to adjudicate it; the creditor must seek its enforcement against the administrator in another tribunal. THE CASE is stated in the opinion. N. H. MILLER for defendant. Mr. Justice JAMES delivered the opinion of the court. In this case, which was heard by the Chief Justice and myself, it appears that Bernard Henze was the owner of two restaurants, one on Pennsylvania avenue and the other on Seventh street, the latter occupying a building belonging to the German American National Bank, of which the petitioner, Keyser, was appointed receiver. Henze had taken from Keyser a lease for the term of five years. The rents were paid, according to an account shown in the proceedings in the Orphans' Court, down to the last month of Henze's life. He died on the 7th of December, 1879, and the last month's rent unpaid accrued on the 5th of the month. Mrs. Henze was appointed executrix of her husband's will, but a caveat was entered, and in the meantime she received letters ad colligendum. She acted under these, and took possession of the furniture in the house of the decedent, and of everything in the two restaurants. It appears by the proceedings in the Orphans' Court, that by consent of all the parties then interested, she proceeded to carry on the two restaurants, making expenditures and collecting the assets of the estate. She rendered her account, showing the estate to be indebted to her $498.67. January 16, 1880, the caveat was withdrawn, and a few days afterwards Mrs. Henze renounced as executrix, whereupon George Breitbarth, a creditor of the estate, was appointed administrator, and, under an order of the court, sold the personal effects of the decedent, including the furniture and fixtures of the restaurant. Keyser proceeded to present his claim against the estate in the Orphans' Court, claiming that he had a lien on the chattels that were in the restaurant for all the rent accruing, not only during the lifetime of the decedent, but during the occupation of the premises by the widow. He made a bill of something over five hundred dollars, and claimed that it was a lien upon the proceeds of the sale. When Breitbarth presented his final account, it appeared that he had credited Mrs. Henze with the sum of $498.67, as money advanced by her to the estate. Keyser filed exceptions to the account of Breitbarth, especially as to this item; but the Orphans' Court overruled the exceptions and passed the account, and Keyser now appeals from that order. His exception is, that his claim for rent attached as a lien upon the fund in the hands of the administrator arising from the sale of the furniture of the restaurant, and that it should have been first satisfied. We do not think that the Orphans' Court has any authority to adjudicate this claim. If an administrator pays a claim against his decedent's estate, and returns it in his account, the Orphans' Court may allow it or reject it; but if he refuses to pay, the creditor must establish and enforce his claim in another tribunal. As to this repayment to Mrs. Henze of money which she appears to have advanced the estate, without going into the facts of the case, we think that the action of the Orphans' Court was correct in allowing it in the administrator's account. And we, therefore, affirm the order of the court. This does not all interfere with Keyser's remedy, whatever he may have, as a creditor of the estate. CHARLES W. HOFFMAN vs. EDWIN R. HAIGHT. Law. No. 23,529. J Decided December 3, 1883. The CHIEF JUSTICE and JUSTICES COX and JAMES sitting. Although the creditor's name be innocently or accidentally (but not fraudulently) omitted from the schedule of creditors provided for by the Bankrupt act of March 2, 1867, the discharge and certificate is conclusive evidence in favor of the bankrupt, and a complete bar to a suit against him by the omitted creditor. THE CASE is stated in the opinion. GEO. E. HAMILTON for plaintiff. J. S. BROWN for defendant. Mr. Justice Cox delivered the opinion of the court. The plaintiff sued on a promissory note for the sum of three thousand dollars, to recover an alleged balance of $1,913.15, unpaid, with interest at ten per cent. per annum from February 24th, 1879. The defendant pleaded a discharge in bankruptcy, and the plaintiff replied "that the indebtedness sued on was not named or contained in the defendant's statement or schedule of debts filed with his petition in bankruptcy, and that no notice whatever of the filing of said petition, or of the subsequent proceedings. thereon, was served on this plaintiff, either by mail or personally; and that this plaintiff did not, in fact, have notice thereof until the filing herein of the defendant's plea." To this replication the defendant demurred, on the grounds: First. That the notice required by law of the bankruptcy of a debtor is by letter sent to each creditor by mail, personal service, and by publication; Second. That when a bankrupt, without fraud, files a list of his creditors, with the names, places of residence, and amount due each, and appends an oath that it is a true schedule of his creditors and debts, it is conclusive upon all his creditors; and, Third. That creditors not named in that schedule are presumed to be notified by the publication. The question really intended to be met by this demurrer, although it is not presented in as condensed a form as it might be, but was made in argument, is, whether the omission of a creditor's name in the schedule, innocently or accidentally, but not fraudulently, makes the discharge a nullity towards that creditor. I may notice, very briefly, two or three provisions of the bankrupt act. Section eleven of the act of March 2, 1867, says, that "the said schedule must contain a full and true statement of all his debts, exhibiting, as far as possible, to whom each debt is due, the place of residence of each creditor, if known to the debtor, and, if not known, the fact that it is not known; also the sum due to each creditor; the nature of each debt or demand," &c. And the same section further provides that, "upon the filing of such petition, schedule and inventory, the judge or register shall forthwith, if he is satisfied that the debts due from the petitioner exceed three hundred dollars, issue a warrant to be signed by such judge or register, directed to the marshal of said district, authorizing him forthwith, as messenger, to publish notices in such newspapers as the warrant specifies; to serve written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, or whose names may be given to him, in addition, by the debtor, and to give such personal or other notice to any persons concerned, as the warrant specifies." Then, every bankrupt is to be "at liberty, from time to time, upon oath, to amend and correct his schedule of creditors and property, so that the same shall conform to the facts." Sections 32 and 33 provide, that if it shall appear to the court "that the bankrupt has in all things conformed to his duty under this act, and that he is entitled under the provisions thereof to receive a discharge," the court will grant him free discharge from all his debts, except in case of fraud. Section 34 provides that "a discharge duly granted under this act shall, with the exceptions aforesaid, release the bankrupt from all debts, claims, liabilities and demands, which were or might have been proved against his estate in bankruptcy," &c. A discharge, duly granted, is to have this effect. It is admitted that the claim in the present case could have been proved against the estate in bankruptcy, so that if the certificate is duly granted, it is a discharge from that debt. It is claimed, however, that if any creditor's name is omitted from the schedule, the discharge is not duly granted, as to him. Now, that depends upon the question whether the bankrupt, in such a case, has conformed to his duty under the act. If he has fraudulently omitted the names of any creditors in the schedule, he has not conformed to his duty, and is not entitled to receive a certificate of discharge, and perhaps in that case the discharge may be said not to be duly granted. Another question may arise here which it is unnecessary to more than allude to, and that is, whether that creditor is not confined to proceedings in the bankrupt court, because in section 34 it is provided, that "the certificate shall be conclusive evidence in favor of such bankrupt of the fact and the regularity of such discharge; always provided, that any creditor or creditors of said bankrupt, whose debt was proved or provable against the estate in bankruptcy, who shall see fit to contest the validity of said discharge, on the ground that it was fraudulently obtained, may, at any time within two years after the date thereof, apply to the court which granted it, to set aside and annul the same." Passing by that question, however, we come to the question whether the bankrupt may be said to have conformed to his duty under the act, if he innocently or accidentally omits the name of any creditor on the schedule. Now, according to the weight of authority, we are satisfied that the accidental and innocent omission of the creditor's name. from the schedule does not affect the regularity of the proceedings. It is not a breach of the bankrupt's duty so as to affect the question whether his discharge is duly granted or not. The authorities say that the act does not contemplate an absolutely accurate schedule of creditors, because it directs the marshal to send notices to those who are named in the schedule, and to such others as may be afterwards fur |