The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 1,004
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250 FEDERAL REPORTER
confirmed without objection, and acquiesced in by the present petition-
er. The bankrupt was indebted to an amount in excess of $13,000, all
of which indebtedness was bona fide incurred by her in the saloon busi-
ness subsequent to her engaging therein.
The petitioner, John McGlinn Distilling Company, filed a petition,
setting out that it was a creditor of Michael Mitchell, and had recover-
ed a judgment against Cecilia Mitchell, as his executrix, on October
14, 1916, for $3,731.95; that the market value of the license, with the
leasehold and good will, at the time of the transfer to the bankrupt,
was not less than $5,000; that she had not accounted for the value
thereof to the creditors of the estate. It is claimed that she became a
trustee for the benefit of the creditors for the market value of the li-
cense, with the leasehold and good will, and that the proceeds of the
sale should be awarded to the estate of Michael Mitchell, deceased, as
a preference, to the exclusion of the general creditors of the bankrupt.
The referee denied the prayer of the petition, with leave to the peti-
tioner to file a claim as a general creditor. This order of the referee
comes before the court for review.
[1, 21 It is conclusively established as the law of Pennsylvania that
a retail liquor license is a personal privilege, which at the death of the
licensee does not pass to his personal representatives. Inasmuch as the
fixtures, good will, and unexpired term of the lease of the licensed
premises are assets of his estate, and a liquor license for the leased
premises may add materially to the value of the fixtures, good will, and
unexpired term of the lease, it cannot be used by the executor or ad-
ministrator for his own profit, but the renewal or transfer of the
license for the premises in which the leasehold exists will inure to the
benefit of those to whom he stands in the relation of trustee; that is,
the creditors and beneficiaries of the estate. Upon these grounds the
courts have held that an executor or administrator, who has failed to
sell the lease, good will, and fixtures of the licensed premises for the
benefit of the estate with the transferred license, will be surcharged
with the value thereof. Buck's Estate, 185 Pa. 57, 39 Atl. 821, 64
Am. St. Rep. 816; Aschenbach v. Carey, 224 Pa. 303, 73 Atl. 435;
Immendorf's Estate, 190 Pa. 590, 42 Atl. 959.
 In the present case the bankrupt, being executrix of her hus-
band's estate and having obtained the transfer of the license, took pos-
session of the leased premises, together with the good will and fixtures
of the business, and conducted the business for a period of some 20
months. She was not conducting the business for the benefit of the
estate, but was conducting it in her own right. She having taken a
transfer of the license and the renewals thereof, and having taken over
these assets of the estate and held them in her own right, the petition-
er, upon proper showing to the orphans' court, could, by reason of her
trust relation, have required her to account for the value of the lease-
hold, good will, and fixtures as affected by the license, and she would,
upon failure to pay, be surcharged with their value at the time she
took them over. It does not follow, however, because as executrix she
would have been surcharged with the value of what was appropriated
by her, that the proceeds of the present sale are an asset of her de-
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/1019/: accessed January 21, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.