Withers

(in part dissenting). These four matters were consolidated and heard together in the court below and have been argued together here. The first is a petition for the revision of -an order of the District Judge confirming the order of the referee in bankruptcy appointing William E. White trustee of the estate of E. Y. Foley, bankrupt. (D. C.) 1 F.(2d) 568 . The second is.a petition for the revision of an order of the judge confirming the order of the referee appointing White trustee of the estate of E. Y. Foley, Inc., bankrupt. (D. C.) 1 F.(2d) 568 . The third and fourth are- petitions for the revision of the order-made by the judge confirming an order made by the referee consolidating the estate of E. Y. Foley) bankrupt, and the estate of Eh Y. Foley, Inc., bankrupt, and providing for a dividend of 5 per cent, of the. assets of' the bankrupt E. Y. Foley, Inc., to be paid to the creditors of the two bankrupt estates: (D. C.) 4 F.(2d) 152 . The objection to the compensation of $10,000 allowed to the receiver of the two estates, also made by the-last-mentioned order of the court, has been here waived in the brief of the petitioner.

We are of the opinion that the record, shows no just…

Circuit Judges (concurring in part). If there is such conflict of interest between creditors of the individual and creditors of the corporation as to require a separate administration of each estate, it would seem that orders appointing the same person trustee of both estates should not be affirmed; but, in the view we take of the case, that fact becomes immaterial. We agree with Judge EOSS that the court below has prejudged the rights of creditors without a hearing. Thus, in the opinion confirming the order approving the appointment of a trustee, the court said: “I am of the view that the two estates are of the same ownership- — that the property of Foley and of Foley, Incorporated, is to be considered as one sum of assets subject to the claims of all creditors, and for that reason I think that a consolidation of the two estates can appropriately bo made. The business was always the business of E. Y. Foley, while the operations wore being carried under his individual name as well as afterwards when conducted by E. Y. Foley, Incorporated, with Foley as president.”

This conclusion may or may not be correct; but that question was not before the court, and the rights of creditors…