AUGUSTUS N. HAND, Circuit Judge.
On April 19, 1932, the International Match Corporation, a Delaware company, (Match) was adjudicated a bankrupt and the proceedings were generally referred to the respondent, then a referee in bankruptcy in the Southern District of New York. He continued in charge thereof until June 24, 1947, when the estate was closed after payments of dividends to creditors totalling $33,919,024.75, respondent withdrawing as commissions 1% of this sum, or $339,190.25. The order appealed from directed him to return to the reopened estate $236,729.38 plus interest, the amount by which his commissions from the Match estate when added to commissions received in the years 1932 through 1947 inclusive from other estates referred to him exceeded an average of $20,000 for the years in question.
The order below was based upon repeated violations, which were held by the court below to have been fraudulently concealed, of a standing rule of the judges of the District Court for the Southern District of New York made by Judge Knox in May 1933, that the referees should so govern themselves that the earnings of each should not aggregate more than $20,000 in any calendar year in order that the then existing national depression should not create an opportunity for the court’s own officers to enrich themselves.
The respondent challenges the existence and validity of such a standing rule.
The respondent also asserts that the District Court lacked jurisdiction in this proceeding to proceed summarily or to give judgment running to Match. We do not agree. In December, 1948, International Match Realization Company, Limited, a Bermuda corporation, (Realization) to which had been assigned approximately 90% in amount of the claims proved against the Match estate obtained an order to show cause why that estate should not be reopened and respondent directed to repay to it so much of his commissions as might be determined to have been in excess of the $20,000 yearly maximum. The matter was referred to a special master who, proceeding summarily, held hearings at which, the respondent appeared and 'presented his case, though denying the master’s jurisdiction. The master’s report recom[461]*461mending the reopening of the Match estate and a judgment against the respondent and in favor of Match in the sum set forth above was confirmed by Goddard, J.
The respondent’s objections to the nature of those proceedings so far as they have any substance can be summarized as follows:
The Bankruptcy Act, 11 U.S.C.A. § 1 et seq. provides that, upon cause being shown, an estate may be reopened, a trustee thereafter elected and a plenary action then instituted by the trustee to recover assets of the bankrupt estate. This procedure the respondent contrasts with that adopted in the instant case, which he characterizes as a summary proceeding by one creditor, dissolved during the action, which was to obtain judgment against him prior to the reopening of the estate — a judgment running to Match, the now long defunct bankrupt.
The respondent, however, misconceives the nature of the proceeding below. Accepting arguendo the respondent’s description of the usual procedure for recovery of newly discovered assets of a bankrupt estate, that procedure is not exclusive where a court officer is charged, as respondent was here, with obtaining funds from a court by fraud or in violation of its orders. Any person, whether creditor of the estate involved or not, had the right, if not the duty, to call to the court’s attention the facts and the court thereafter proceeded summarily and sua sponte to investigate and decide the matter and order the recovery of the sums involved as was its duty. In re De Ran, 6 Cir., 260 F. 732; see Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 246, 64 S.Ct. 997, 88 L.Ed. 1250; Griffen v. Thompson, 2 How., U.S., 244, 256, 11 L.Ed. 253; Slocum v. Edwards, 2 Cir., 168 F.2d 627, 631; Governor Clinton Co. v. Knott, 2 Cir., 120 F.2d 149, 152, appeal dismissed, 314 U.S. 701, 62 S.Ct. 50, 86 L.Ed. 561; In re Stillwell, 6 Cir., 12 F.2d 205, 207; Varney v. Harlow, 4 Cir., 210 F. 824, 828. The court is not required merely to reopen the case and then to leave further proceedings to be brought by a new trustee. The wrong has been done primarily to the court. The creditors who would be represented by a trustee are only incidental beneficiaries if the sums recovered should ultimately be applied for their benefit. Evidence of fraud or violation of the court’s orders being shown, the court could properly try the whole case on the merits in a summary proceeding particularly where as here the facts are not substantially in dispute. Nor was the respondent prejudiced by his alleged withdrawal from the case. Though he insisted throughout that the master had no jurisdiction to hear the case on the merits, he appeared and fully argued his position. See Gerber v. Fruchter, 2 Cir., 147 F.2d 120, 122; Slocum v. Edwards, 2 Cir., 168 F.2d 627, 628, 629, 632.
The court’s action in not reopening the bankrupt estate until the order was made directing the respondent to repay Match was proper for the bankrupt estate need not be reopened until the court had not only decided that the respondent had improperly obtained moneys from the court for which he should account, but also that the creditors of the bankrupt were properly entitled to such moneys.
Nor is there merit in the contention that as Match had been long since dissolved by action of the State of Delaware, the order directing payment to the Clerk of the Court to 'hold the fund for Match’s benefit was a nullity. The order also directed that a new trustee should be elected and should proceed to enforce the judgment. Regardless of the dissolution of Match, the Match estate was still within the jurisdiction of the court below. As a trust will not fail for want of a trustee the Clerk as the order provides may act as trustee of the fund should the respondent pay the judgment prior to the election of the new trustee.
The respondent also argues that he should not be ordered to pay over the fund in question until it is determined that it is now in his possession. We need not now decide if such a rule applies to “turn over” orders addressed to a bankrupt for it has no application to an order directed to an officer of the court who has violated [462]*462its orders, whether or not the matter arises out of a bankruptcy. The respondent’s asserted inability to pay is a matter which may be considered in enforcement proceedings.
Passing to the merits, it is necessary first to describe the history of the dividends and commissions in question (set forth in tabular form in the margin).1
Prior to September 22, 1938, the effective date of the amendment of the Bankruptcy Act discussed below, four dividends total-ling $26,848,898.13 were paid to creditors from the Match estate. The respondent did not seek full payment of his statutory commissions totalling $268,488.97 (1% of $26,848,898.13) on payment of these dividends. Indeed, upon his own motion, two orders were issued, one by Judge Bondy in January 1937 covering dividends 1 and 2, and one by Judge Mandelbaum in November 1937 covering dividends 3 and 4, directing the trustee in bankruptcy to “earmark and set apart in escrow the statutory commissions of the Referee in Bankruptcy heretofore earned subject to the order of the court or referee.” As the second order also directed the immediate payment of $8500 to respondent the escrow fund originally totalled $259,988.97.
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AUGUSTUS N. HAND, Circuit Judge.
On April 19, 1932, the International Match Corporation, a Delaware company, (Match) was adjudicated a bankrupt and the proceedings were generally referred to the respondent, then a referee in bankruptcy in the Southern District of New York. He continued in charge thereof until June 24, 1947, when the estate was closed after payments of dividends to creditors totalling $33,919,024.75, respondent withdrawing as commissions 1% of this sum, or $339,190.25. The order appealed from directed him to return to the reopened estate $236,729.38 plus interest, the amount by which his commissions from the Match estate when added to commissions received in the years 1932 through 1947 inclusive from other estates referred to him exceeded an average of $20,000 for the years in question.
The order below was based upon repeated violations, which were held by the court below to have been fraudulently concealed, of a standing rule of the judges of the District Court for the Southern District of New York made by Judge Knox in May 1933, that the referees should so govern themselves that the earnings of each should not aggregate more than $20,000 in any calendar year in order that the then existing national depression should not create an opportunity for the court’s own officers to enrich themselves.
The respondent challenges the existence and validity of such a standing rule.
The respondent also asserts that the District Court lacked jurisdiction in this proceeding to proceed summarily or to give judgment running to Match. We do not agree. In December, 1948, International Match Realization Company, Limited, a Bermuda corporation, (Realization) to which had been assigned approximately 90% in amount of the claims proved against the Match estate obtained an order to show cause why that estate should not be reopened and respondent directed to repay to it so much of his commissions as might be determined to have been in excess of the $20,000 yearly maximum. The matter was referred to a special master who, proceeding summarily, held hearings at which, the respondent appeared and 'presented his case, though denying the master’s jurisdiction. The master’s report recom[461]*461mending the reopening of the Match estate and a judgment against the respondent and in favor of Match in the sum set forth above was confirmed by Goddard, J.
The respondent’s objections to the nature of those proceedings so far as they have any substance can be summarized as follows:
The Bankruptcy Act, 11 U.S.C.A. § 1 et seq. provides that, upon cause being shown, an estate may be reopened, a trustee thereafter elected and a plenary action then instituted by the trustee to recover assets of the bankrupt estate. This procedure the respondent contrasts with that adopted in the instant case, which he characterizes as a summary proceeding by one creditor, dissolved during the action, which was to obtain judgment against him prior to the reopening of the estate — a judgment running to Match, the now long defunct bankrupt.
The respondent, however, misconceives the nature of the proceeding below. Accepting arguendo the respondent’s description of the usual procedure for recovery of newly discovered assets of a bankrupt estate, that procedure is not exclusive where a court officer is charged, as respondent was here, with obtaining funds from a court by fraud or in violation of its orders. Any person, whether creditor of the estate involved or not, had the right, if not the duty, to call to the court’s attention the facts and the court thereafter proceeded summarily and sua sponte to investigate and decide the matter and order the recovery of the sums involved as was its duty. In re De Ran, 6 Cir., 260 F. 732; see Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 246, 64 S.Ct. 997, 88 L.Ed. 1250; Griffen v. Thompson, 2 How., U.S., 244, 256, 11 L.Ed. 253; Slocum v. Edwards, 2 Cir., 168 F.2d 627, 631; Governor Clinton Co. v. Knott, 2 Cir., 120 F.2d 149, 152, appeal dismissed, 314 U.S. 701, 62 S.Ct. 50, 86 L.Ed. 561; In re Stillwell, 6 Cir., 12 F.2d 205, 207; Varney v. Harlow, 4 Cir., 210 F. 824, 828. The court is not required merely to reopen the case and then to leave further proceedings to be brought by a new trustee. The wrong has been done primarily to the court. The creditors who would be represented by a trustee are only incidental beneficiaries if the sums recovered should ultimately be applied for their benefit. Evidence of fraud or violation of the court’s orders being shown, the court could properly try the whole case on the merits in a summary proceeding particularly where as here the facts are not substantially in dispute. Nor was the respondent prejudiced by his alleged withdrawal from the case. Though he insisted throughout that the master had no jurisdiction to hear the case on the merits, he appeared and fully argued his position. See Gerber v. Fruchter, 2 Cir., 147 F.2d 120, 122; Slocum v. Edwards, 2 Cir., 168 F.2d 627, 628, 629, 632.
The court’s action in not reopening the bankrupt estate until the order was made directing the respondent to repay Match was proper for the bankrupt estate need not be reopened until the court had not only decided that the respondent had improperly obtained moneys from the court for which he should account, but also that the creditors of the bankrupt were properly entitled to such moneys.
Nor is there merit in the contention that as Match had been long since dissolved by action of the State of Delaware, the order directing payment to the Clerk of the Court to 'hold the fund for Match’s benefit was a nullity. The order also directed that a new trustee should be elected and should proceed to enforce the judgment. Regardless of the dissolution of Match, the Match estate was still within the jurisdiction of the court below. As a trust will not fail for want of a trustee the Clerk as the order provides may act as trustee of the fund should the respondent pay the judgment prior to the election of the new trustee.
The respondent also argues that he should not be ordered to pay over the fund in question until it is determined that it is now in his possession. We need not now decide if such a rule applies to “turn over” orders addressed to a bankrupt for it has no application to an order directed to an officer of the court who has violated [462]*462its orders, whether or not the matter arises out of a bankruptcy. The respondent’s asserted inability to pay is a matter which may be considered in enforcement proceedings.
Passing to the merits, it is necessary first to describe the history of the dividends and commissions in question (set forth in tabular form in the margin).1
Prior to September 22, 1938, the effective date of the amendment of the Bankruptcy Act discussed below, four dividends total-ling $26,848,898.13 were paid to creditors from the Match estate. The respondent did not seek full payment of his statutory commissions totalling $268,488.97 (1% of $26,848,898.13) on payment of these dividends. Indeed, upon his own motion, two orders were issued, one by Judge Bondy in January 1937 covering dividends 1 and 2, and one by Judge Mandelbaum in November 1937 covering dividends 3 and 4, directing the trustee in bankruptcy to “earmark and set apart in escrow the statutory commissions of the Referee in Bankruptcy heretofore earned subject to the order of the court or referee.” As the second order also directed the immediate payment of $8500 to respondent the escrow fund originally totalled $259,988.97.
Further dividends paid in 1939 and 1940 totalled $4,897,592.34. The respondent withdrew $48,975.92 as commissions on these dividends on no other authority than his own signature. The final dividend of $2,142,598.05 was declared in 1947 as [463]*463to which the respondent by concealing the above facts had obtained an order from Judge Rifkind in December 1946 directing the payment to him of a commission of 1% ($21,425.98). This sum plus the $8500 ordered paid by Judge Mandelbaum were the only payments specifically ordered to be made to the respondent from the Match estate, but actual withdrawals by the respondent from the estate in the years 1937-1946 inclusive totalled $114,650, and in 1947 when he knew he was not to be reappointed a referee withdrawals totalled $224,540.25. By these 1947 withdrawals he completely exhausted the escrow fund although only the above $21,425.98 was specifically ordered paid in that year.
The court below set aside the 1947 order of Judge Rifkind as obtained by fraud, directed the repayment of commissions on the 1939 and 1940 dividends as completely unauthorized, and concluded that withdrawals from the escrows were also unauthorized absent some formal order of the court or referee. The court found that these unlawful withdrawals totalled $330,-690.25 out of total withdrawals of $339,-190.25. However, the respondent was given an equitable credit of $93,960.87, which represented during the period of his administration of the Match estate the cumulative difference between his income after eliminating the illegal withdrawals and the $20,-000 annual limit. Judgment was therefore for $236,729.38, plus interest.
Prior to September 22, 1938, the Bankruptcy Act, 32 Stat. 799 so far as it applied to fees of referees read as follows: “ * * * Referees shall receive as full compensation for their services, payable after they are rendered * * * from estates which have been administered before them one per centum commissions on all moneys disbursed to creditors by the trustee * * *.” 11 U.S.C.A. § 68.
The Chandler Act, 52 Stat. 859, 940, effective September 22, 1938, amended the above by adding: “The judge may, however, by standing rule or otherwise, fix a lower rate of compensation, so that no referee shall receive excessive compensation during hi s term of office, * * 11 U.S.C.A. § 68.
We may quickly dispose of so much of this appeal as relates to the $48,975.92 withdrawn as commissions on dividends 5 and 6 paid in 1939 and 1940. No opportunity was given any judge to pass on these withdrawals in any way. This is required by the Chandler Act, supra, in order that the judge before whom the estate is being administered might exercise the discretion therein provided. No authority for such a withdrawal being shown, the order directing its return was proper.
The respondent argues that as to his commissions on pre-1938 dividends, it was beyond the power of the court by standing rule, agreement or otherwise to reduce them below the statutory amount, United States v. Andrews, 240 U.S. 90 36 S.Ct. 349, 60 L.Ed. 541; Glavey v. United States, 182 U.S. 595, 21 S.Ct. 891, 45 L.Ed. 1247; see Ehrhorn v. Quillinan, 2 Cir., 170 F.2d 890, 891, and, therefore, the rule cannot now be enforced by ordering the repayment of sums which though excess of that permitted by the rule, were not in excess of the statutory 1%.
We agree that such a rule presents grave difficulties, not only in view of the cases cited above but also in its practical administration. For instance, which estates are to get the benefit of any reduction of fees resulting from the rule, and in what proportion. Such administrative difficulties may well have led to the passage of the Referees’ Salary Act, 60 Stat. 326, 11 U.S.C.A. § 68, which again provided fixed compensation for referees.
However, the validity of the rule prior to 1938 is not now before us. For the purposes of this case we can accept respondent’s position that the so-called rule was originally but a statement by Judge Knox to the assembled referees in 1933 that no referee who accepted over $20,000 in any one year would receive Judge Knox’s vote when such a referee came up for reelection at the end of his two year term. Whatever its effect prior to the 1938 amendment, we hold that there was a valid and binding rule thereafter in the Southern District of New York that referees’ commissions should not exceed $20,000 an[464]*464nually. The record is clear that the respondent was present when Judge Knox’s statement was made and offered no objection. It is also clear that the respondent accepted the statement as binding by reporting his commissions for the years 1932-1946 inclusive to the court under Local Bankruptcy Rule XXI (D) and General Order 26, 11 U.S.C.A. following section 53, in such a way as to indicate that he was receiving approximately the $20,000 limit, when in reality the cumulative excess of the respondent’s commissions received from all estates in those years was approximately $66,000 in excess of $20,000 per year.
The crucial inquiry is rather as to the meaning and effect of the escrow orders of 1937. The court below held, and we fully agree that the escrow orders meant that the respondent could withdraw from the escrow sufficient sums in any year to bring his total compensation to the $20,000 limit stated by Judge Knox and accepted by the respondent. The latter’s acts with respect to withdrawals made prior to 1947 and his income tax treatment of the escrow fully substantiate this interpretation.
The court below held that withdrawals from the escrow must be made by a formal order. As to this we do not agree. If, as we hold, the escrow orders meant that withdrawals up to $20,000 could be annually made by the referee, and that the disposition of the balance was subject to court order, the time for creditors or others to object to such a plan was when the escrow orders were made, and not when the annual withdrawals were made by the referee. Thus the latter’s withdrawals on his own signature were proper in so far as they did not cause his annual income to exceed $20,000.
Even if the orders could have been set aside on the basis of the dictum in Ehrhorn v. Quillinan, supra, if the respondent had appealed from them when they were entered, they cannot, as the respondent himself indeed argues, be set aside in this action having become non-appealable by lapse of time, 52 Stat. 854, 855, 11 U.S.C.A. §§ 47, 48, and the court 'having had undoubted jurisdiction to enter them even though they might have been erroneous when entered.2
It thus follows that the respondent violated the escrow orders by withdrawing the entire escrow fund and was properly directed to repay with interest the amount by which his total commissions from all estates in the years 1933-1947 inclusive exceeded $20,000 per year.
However, this does not dispose of the question, for the order appealed from not only directed the return to the court of excess withdrawals from the escrow but ordered this excess to be held for the benefit of Match’s creditors. As we have seen, the escrow orders contemplated a subsequent court order disposing of so much of the fund as did not properly go to the referee. This order has now been made and is challenged by respondent as viola-tive of the pre-1938 Bankruptcy Act, 32 Stat. 799, in that the court had no authority to order the fund paid to anyone but respondent. If such is the law, it would be futile to direct respondent to repay his excess withdrawals for the court would then be forced to order them repaid to him and recovery would be limited to interest on the sums withdrawn from the date of withdrawal to the time payment should have been ordered. There are three answers to this argument.
First, the escrow orders clearly contemplated that the balance now in question would not go to respondent. Otherwise, there was no reason for such orders and the fund would simply have been turned over to him when the dividend was paid. Such being the case, respondent lost his right to object to the order under review by his failure to attack the original escrow orders which as we have stated, supra, have become non-appealable from lapse of time.
[465]*465Second, as the respondent in 1937 willingly left the balance in escrow subject to court order, this balance became subject to the Chandler Act after 1938.3
Third, under the circumstances, the pre-1938 Act did not require payment of 1% commissions on pre-1938 dividends. As stated, supra, the Act provided that: “ * * * Referees shall receive as full compensation for their services, payable after they are rendered * * * from estates which have been administered before them one per centum commissions on all moneys disbursed to creditors * * (Emphasis ours.) Referees’ commissions are not earned by the mere act of paying dividends, 6 Remington, Bankruptcy (4th Ed.) 275. An estate may contain a substantial amount of cash which could without effort be immediately distributed as a dividend, leaving to the future the greatest part of the labor of administration which might result in minimal dividends. This was recognized by the pre-1938 Act, 30 Stat. 556, for it provided for equitable allocation of commissions in case of a change in referees or revocation of a reference. See Kinkead v. J. Bacon & Sons, 6 Cir., 230 F. 362, 369, certiorari denied 241 U.S. 680, 36 S.Ct. 728, 60 L.Ed. 1234; 2 Collier, Bankruptcy, (14th Ed.) 1561. Thus the payment of interim dividends did not measure the rendering of services. If the amount of dividends declared did measure the services rendered, then, if respondent had died in 1938 and a successor or referee had been appointed who administered the estate until it was closed in 1947, the successor, for nine years work, would have been entitled to approximately one-fourth as much in commissions as the respondent would have been for six years work (1932-1938). The fact that 30 Stat. 556 requires the allocation of commissions in such a situation clearly indicates that commissions are not earned by the mere payment of dividends and that respondent even under the pre-1938 Act had no vested right to 1% of dividends paid to creditors until the estate was closed. It would have been quite within the power of the court to refuse all commissions until this occurred. Had the estate been closed prior to 1938, the court should then have directed the payment to the respondent of a 1% commission4 but as this estate was not closed until 1947, when the amount of the total commission had come within the discretion of the judge, he could properly limit respondent’s commissions to a total of $20,-000 a year and direct that the balance go to creditors of the bankrupt.
It is unnecessary to determine whether the court below had power under F.R.C.P. 60(b) to set aside for fraud the 1946 order of Judge Rifkind respecting commissions on the final dividend,5 as any payment under that order abated pro tanto any amount to which the plaintiff was entitled from the escrow the principal of the amount required to be repaid by the respondent is not affected.
Order affirmed.