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IN RE PERKINS

August 8, 1941

In re PERKINS


The opinion of the court was delivered by: FORMAN

On November 23, 1928, the objecting creditor, Charles W. Cole, obtained a judgment in the United States District Court for the District of New Jersey in the sum of $2,631.79 against the bankrupt. In 1931 the bankrupt inherited $2,100 and later in 1934 or 1935 an equal interest with his sister in the sum of $550. The sum of $2,100 was appropriate by the bankrupt's father to his business immediately on its receipt. There was no agreement between the bankrupt and his father that the money should be returned or held in trust for the bankrupt's benefit, although he stated he would have returned it if he had had sufficient money. The bankrupt testified that he gave the fund to the father to repay him for money spent on his education.

At the time the bankrupt inherited the joint interest in the sum of $550 he was living in Linwood, New Jersey, and his sister was living in Elkins Park, Pennsylvania, some fifty-five miles away. The fund was deposited in a bank in Elkins Park on the sister's suggestion. The bankrupt's share in this money was spent for living expenses of himself and parents. The bankrupt's adjudication occurred February 8, 1940.

 Charles W. Cole, the objecting creditor, opposes discharge on the following grounds:

 1. The bankrupt has committed offenses punishable by imprisonment in that he has wilfully, knowingly and fraudulently --

 (b) concealed from his creditors and from his trustee, property and assets belonging to his estate in bankruptcy,

 (c) made a false oath in relation to his bankruptcy proceedings herein.

 2. The bankrupt transferred, and within the period prescribed by the statute, removed and concealed his property with intent to hinder, delay and defraud his creditors.

 3. The bankrupt failed to make and preserve books of account and records from which his financial condition and these unlawful transactions might be ascertained.

 4. The bankrupt has failed to explain satisfactorily a deficiency of assets to meet his liabilities.

 The facts as briefly outlined above were found by the Referee. He concluded that the bankrupt satisfactorily explained his deficiency of assets in that he had stated that the sum of $2,100 was given to his father, and that his interest in the sum of $550 was used for living expenses, that his failure to keep books was justified on the ground that he was a wage earner and not in business, citing In re Weismann, D.C., 1 F.Supp. 723, In re Pinko, 7 Cir., 94 F.2d 259, and In re Neiderheiser, 8 Cir., 45 F.2d 489, that there was not a concealment of the sum of $2,100 in question within the meaning of the Bankruptcy Act, because the father did not hold it in trust or under an agreement to return it, and because both funds had been expended more than a year prior to adjudication -- hence, there was nothing to conceal. He also concluded that since there was no concealment the failure to disclose the two funds in the schedules did not constitute a false oath, citing Hanover-Capital Trust Co. v. Meyer, 3 Cir., 57 F.2d 815.

 Objections to the discharge were therefore denied, and the case is presently before this court ...


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