King v. United States
Opinion of the Court
delivered the opinion of the Court.
This is an action brought by the United States against the executrix of George King,
The facts of the case were stipulated and are essentially as follows. On October 1, 1946, Seeley Tube &
At the hearing, the following colloquy took place between the referee and Mr. Freeman, counsel for Seeley:
“The Referee. Is there a claim ^of the Picatinny Arsenal?
“Mr. Freeman. The Picatinny Arsenal may have some claim.
“The Referee. Have we put up enough money to meet it?
“Mr. Freeman. No.
“The Referee. Is there a problem there?
“Mr. Freeman. We do not owe them any money, and we want to bring them in. I want to state to your Honor further that the debtor company will.*332 deposit any sum of money that is represented by any claim that the Picatinny Arsenal may file in these proceedings within a time that your Honor directs them to file it.
“The Referee.' Have you any notion of what they might claim?
“Mr. Freeman. We think they may claim $20,000.
“The Referee. Have you $20,000 available?
“Mr. Freeman. We have $94,000 available to pay them if necessary, and we represent-to your Honor that there will be at all times $20,000 or more available to dispose of that claim, in cash . . .
The record shows that King was present in the courtroom on the day of the hearing.
Thereafter the court entered an order directing the Government to file its claim on or before May 9, 1947. On May 9 the Government duly filed its preliminary contingent proof of claim in the amount of $26,818.82, later amended to $34,125.03, alleging a priority under § 64 of the Bankruptcy Act, 11 U. S. C. § 104 (1958 ed.), and R. S. § 3466, 31 U. S. C. § 191 (1958 ed.). However, in the seven weeks between the hearing and the filing of this claim, King, as distributing agent, had paid out by checks duly countersigned by the referee, all but $6,085.01 of the $160,193.68 deposited with him; $42,829.76 was paid to King himself as a creditor of the company.
After King had distributed the $6,085.01 which still remained in his hands ($3,620.39 had gone to the United States) he filed his final report and account. On August 2, 1956, the Bankruptcy Court approved them and discharged King and his surety.
On July 3, 1958, the United States commenced this suit against King
“Every executor, administrator, or assignee, or other person, who pays, in whole or in part, any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate to the extent of such payments for the debts so due to the United States, or for so much thereof as may remain due and unpaid.”
The District Court dismissed the complaint on the theory that a distributing agent is not included within § 192 as an “executor, administrator, or assignee, or other person”
I.
Section 191,
“. . . and in all cases of insolvency, or where any estate in the hands of the executors, administrators or assignees, shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States, on any such bond or bonds, shall be first satisfied; and any executor, administrator, or assignees, or other person, who shall pay any debt due by the person or estate from whom, or for which, they are acting, previous to the debt or debts due to the United States from such person or estate being first duly satisfied and paid, shall become answerable in their own person and estate, for the debt or debts so due to the United States, or so much thereof as may remain due and unpaid . . . .” 1 Stat. 676.
Later, in the same section, the proviso extending the statute to voluntary assignments and absconding debtors is also included,.
“The specification in § 3466 [§ 191] of the ways insolvency may be manifested is aided by the designation in § 3467 [§ 192] of the persons made answerable for failure to pay the United States first from the inadequate estates of deceased debtors or from the insolvent estates of living debtors. The persons held are ‘every executor, administrator, or assignee, or other person.’ The generality of the language is significant. Taken together, these sections mean that a debt due the United States is required first to be satisfied when the possession and control of the estate of the insolvent is given to any person charged with the duty of applying it to the payment of the debts of the insolvent, as the rights and priorities of creditors may be made to appear.” 269 U. S., at 490.
II.
Petitioners, in oral argument, conceded the Government’s priority claim under § 191. Their contention, relying on United States v. Stephens, 208 F. 2d 105, is that distributing agents as a class are nonetheless excluded from the category of fiduciaries covered by § 192 because they are agents of the court rather than personal representatives of the debtor, and the words “or other person” are “limited to those who stand as personal representatives [of the debtor] not.only by the application of the principle of ejusdem generis but by the language qualify
Petitioners’ emphasis on a distinction between a personal representative and an agent of the court is misplaced in the context of §§ 191 and 192. The purpose of § 192, as recognized in Bramwell, is to make those into whose hands control and possession of the debtor’s assets are placed, responsible for seeing that the Government’s priority is paid. Whether or not King falls within the category of fiduciaries on whom such responsibility should be placed depends, not on the title of his position or the mode of his appointment, but, in practical terms, upon the degree of control he is in a position to assert over the allocation among creditors of the debtor’s assets in his possession. That appointment as an officer of the court does not decisively inhibit operation of § 192 -is shown by the express inclusion.within the scope of the statute of court-appointed administrators
III.
. It remains to inquire whether King, by acting as an arm of the court under court instruction and approval lacked the degree of control necessary to make § 192 operative as to him. Petitioners argue that distributing agents exercise no discretion in the discharge of their duties, but perform only the ministerial function of paying out the deposited funds in conformity with the court’s orders. Indeed, it is contended that inclusion of distributing agents within the coverage of § 192 would have placed King on the horns of a dilemma, in that he must either have incurred personal liability to the Government or risked being held in contempt by the Bankruptcy Court. But this assumes that the plan of arrangement, once submitted to the court, was immutable. In fact, if King had objected at the confirmation hearing to paying out the deposited funds to nonpriority creditors before the Government’s claim was surely provided for, there can.be little doubt that he would have obtained satisfaction.
We are not prepared to articulate any general rule defining the responsibility of distributing agents to make and press such objections. We hold only that King, on the facts of this case, did have such a responsibility.
Affirmed.
King died testate after commencement of the suit and his executrix was substituted as a party defendant by, court order. An action by the United States against a fiduciary under R. S. § 3467,31U. S. C. §.192 (1958 ed.), survives against his estate. See United States v. Dewey, 39 F. 251.
This-fact, was not stipulated,-but appears in King’s final petition and report, tvhich was attached as Exhibit A to the Government’s complaint. See Brief for Respondent, p. 7, n. 4. .
It was alleged in the Government’s complaint in this action that it received no notice of these events, but this allegation was denied in the answer and is not mentioned in the stipulated facts.
See note 1, supra.
Compare United States v. Stephens, 208 F. 2d 105 (C. A. 5th Cir. 1953), with United States v. Crocker, 313 F. 2d 946 (C. A. 9th Cir. 1963) and the decision of the court below in the present case.
Section 191 provides:
“Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United' States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”-
A trastee in bankruptcy, an officer of the court, has been included ■ as an “other person,” United States v. Kaplan, 74 F. 2d 664.
See United States v. King, 322 F. 2d 317, at 322.
See generally 8 Collier on Bankruptcy, ¶5.33 (14th ed. 1963).
Cf. Field v. United States, 9 Pet. 182 (1835).
Concurring Opinion
concurring.
In the typical Chapter XI case initiated by the debtor under § 322 it is the debtor that remains in possession and that has prepared and filed the petition and schedules and that proposes the arrangement. It is only after the arrangement has been approved by the creditors that a distributing agent is appointed and charged with the distribution to specified recipients of the deposit required by the Act. The agent, qua agent, has no reason or duty to know or to learn of unscheduled debts, priority or otherwise, and lacking such knowledge from-some other source such as his prior or current position with the debtor I would think he would be beyond the reach of 31 U. S. C. § 192 (1958 ed.) if a government priority claim is unscheduled and unpaid.
There remains, however, a difficulty in this case. Although the papers filed with the petition revealed the debtor had certain contracts with the'Government, the schedules did not list the United States as a creditor. However, the Government later terminated the contracts and at the confirmation hearing the existence of a claim of the. United States was made known:. The referee himself brought up the question of providing for payment of the Government’s claim and was told, as I read the testb mony, that the deposit did not include any sum to defray any part of this claim but that the debtor would have ample sums available to satisfy the claim and would make any deposit for this purpose which it was directed to
We need not pursue this phase of the matter further, however, since other facts justify holding the distributing agent accountable in this particular case. As the Court points out, the agent was an officer of the debtor, was undoubtedly familiar with its affairs and took no exception to the attorney’s statement that there would be ample funds to pay the government claim. This petitioner was not an uninformed distributing agent doing only what he was told to do but was both a distributing agent and an officer of the debtor, with ample notice of the Government’s claim and of the referee’s expéctation that when proved and allowed it would be paid. In paying out the deposit without provision for the claim of the United States he acted at his own risk and became personally liable under § 192 when the Government’s claim became liquidated.
Even if a distributing agent does learn of the government claims it may be that he should not be held liable under § 192, if such knowledge is not obtained until after confirmation. As the claim was neither scheduled nor filed prior to confirmation the Government would not be entitled to share in the deposit and a disbursement from the deposit to.the United States would probably subject the distributing agent to liability to creditors entitled to share in the composition. In re J. B. Poliak Co., 86 F. 2d 99. Only if the confirmation were set ¿side prior to distribution of the deposit, which normally occurs immediately, could provision be made to pay the government claim. In this respect it should be noted that the Court’s observation that
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