Without discussing the authorities in detail, I am forced to announce that the finding of the referee must be confirmed. This is not an action by the purchaser of the stock, nor is he a party to it. It is not based upon any covenant with the purchaser to pay any tax. It is based solely upon the duty of the trustee, as fixed by statute. Whatever the liability of the stock may be, or might have been, the trustee was not liable for any action of the assessor, or the taxing body, subsequent to the time the stock was sold. The trustee is not required to pay any taxes, except those “due and owing” by the bankrupt, or taxes assessed against him as trustee. This tax was not “due and owing”; it existed only in the existence of the power which had not yet been exercised.

Counsel for the trustee will prepare an order, and submit it to counsel for the company, who will have five days in which to file objections, and submit the same to the court for consideration, reserving proper exceptions.