COZENS-HARDY, L. J., read the following judgment: I am unable to adopt the view which was taken by Byrne, J. [His Lordship stated the facts, and continued:]

In my opinion the residuary clause is a true residuary clause. It expressly blends into one fund that which was the testatrix's own property and that over which she had a general power of appointment, the whole being made subject to her debts, funeral and testamentary expenses. We are asked to say that, having appointed the residue of the fund to Henry Shaw in the earlier part of the will, she cannot have intended to appoint it to the same person in the subsequent part of the will. When, however, I once arrive at the conclusion that the ultimate clause is a true residuary clause, it must be taken to operate upon everything which may have failed to take effect under the prior appointment. Oke v. Heath, 1 Ves. Sen. 135. And it makes no difference that the appointee in both cases is the same person. The decision of Stirling, J., in Coxen v. Rowland, [1894] 1 Ch. 406, is directly in point, and I think it is correct. It follows that, in my opinion, the next of kin of the testatrix are entitled to that part of the scheduled property which has not been effectually appointed, and that the title of the persons who would have taken in default of appointment is defeated."

3 Compare, however, In re Thurston, 32 Ch. Div. 508 (1886), where the donee expressly purported to exercise her power of appointment and appointed that the trustee of the instrument creating the power should hold upon certain trusts, and then appointed the same person executor and trustee of the donee's will.

In re Harrie's Trusts, H. R. V. Johns. 199 (1859): Where out of a fund slightly exceeding £5,000 the donee appointed £1,000 to each of four daughters, and the residue to five sons equally, the sons took any amount which lapsed by the death of a daughter in the life time of the donee.

In Eales v. Drake. L. R. 1 Ch. D. 217, Jessel, M. R., said: "The case is this. A testator, having power to appoint £7,000 by will, thinks he has power to appoint £10,000; and accordingly makes a will appointing sums of £1,995, £4,000, £4,000, and £5. If nothing more had happened it is quite clear that all these gifts must have abated, because there is not enough to pay the bequests in full. But one of the appointees has died, which augments the fund, exactly in the same way as if the testator had given pecuniary legacies of greater amount than his whole personal estate; and then one of these legatees had died. In that case the personal estate would have been augmented for the benefit of the other legatees, and the appointees here are in the same position."

CHAPTER XXVII

APPOINTED PROPERTY AS ASSETS

CLAPP v. INGRAHAM.

(Supreme Judicial Court of Massachusetts, 1879. 126 Mass. 200.)

Bill in equity, filed April 21, 1876, by the executor of the will of Caroline A. Ingraham, against the children of the testatrix, and her creditors, for instructions, alleging that on January 1, 1828, the Massachusetts Hospital Life Insurance Company received from Joseph Head, trustee of Caroline A. Ingraham, wife of Daniel G. Ingra-. ham, the sum of $3000, and executed to him an instrument in writing, whereby they promised and agreed with him, his executors and administrators, to invest the same, and to pay the income thereof quarterly to Mrs. Ingraham, “during the natural life of the said Caroline, upon her separate order and receipt, to be dated on or subsequent to the several days on which the said several payments shall fall due; for her separate use, free from the debts, control or interference of any husband she now has, or may hereafter have; which annuity and principal sum are both hereby declared to be inalienable by the respective grantees thereof;" and further agreed with the said trustee, his executors and administrators, "that, in sixty days after proof of the decease of the said Caroline, they will assign, transfer and pay the amount of the aforesaid principal sum (or such part thereof as shall not have been lost by bad debts or otherwise, without the actual fault of said company or their servants), and all interest then due thereon at the time of her death, in real estate, stocks, notes, bonds and mortgages, belonging to said company, all, any or either of them, at the pleasure and discretion of the directors, at the prices at which the same respectively shall stand charged in the books of the company at the decease of said Caroline, in the way and manner provided in said extract from said article, to her executors or administrators in trust, and for the special use and benefit of such person or persons as the said Caroline by her last will and testament, or any revocable appointment in nature thereof, may direct; and if no such will and appointment be made, then to such person or persons as may be her heirs at law."

The bill further alleged, that Caroline A. Ingraham died on January 20, 1876, leaving a will, dated October 16, 1871, which was duly admitted to probate, appointing the plaintiff her executor, and containing the following clause: "I direct my said executor to receive

from the Massachusetts Hospital Life Insurance Company the sum of three thousand dollars and all interest and accumulations thereon, or the real estate, stocks, notes, bonds, and mortgages in lieu of said sum with interest and accumulations, which by the terms of a contract in writing between said company and Joseph Head, trustee, executed the first day of January, one thousand eight hundred and twentyeight, the said company agrees to assign, transfer and pay to my executors or administrators in sixty days after proof of my decease; and out of the money or other property received from said company, I direct my said executor to have and keep, for his own use and benefit, the sum of four hundred dollars; and to assign, transfer and pay over all the remainder of the money, or other property received from said company, after deducting said sum for his own use and benefit, to my children and the issue of any deceased child or children by right of representation in equal shares."

The bill further alleged, that the plaintiff had received from said company the sum of $3000, and that, after diligent search and inquiry, no other property of the testatrix had come to his possession or knowledge; that the testatrix left two children surviving her, who contended that they were entitled to receive the whole of the sum remaining in the plaintiff's hands after deducting the sum of $400; that the testatrix left debts to a large amount, and that the creditors contended that said sum was liable, in the plaintiff's hands, as executor, for the payment of such debts.

The children of the testatrix and certain of the creditors filed answers, admitting the allegations of the bill, and setting up their respective claims; and the case was heard by Morton, J., upon the bill and answers, and reserved for the consideration of the full court.

GRAY, C. J. It was settled in the English Court of Chancery, before the middle of the last century, that where a person has a general power of appointment, either by deed or by will, and executes this power, the property appointed is deemed in equity part of his assets, and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees. The rule perhaps had its origin in a decree of Lord Somers, affirmed by the House of Lords, in a case in which the person executing the power had in effect reserved the power to himself in granting away the estate. Thompson v. Towne, Prec. Ch. 52; s. c. 2 Vern. 319. But Lord Hardwicke repeatedly applied it to cases of the execution of a general power of appointment by will of property of which the donee had never had any ownership or control during his life; and, while recognizing the logical difficulty that the power, when executed, took effect as an appointment, not of the testator's own assets, but of the estate of the doner of the power, said that the previous cases before Lord Talbot and himself (of which very meagre and imperfect reports have come down to us) had established the doctrine, that when there was a gen

eral power of appointment, which it was absolutely in the donee's pleasure to execute or not, he might do it for any purpose whatever, and might appoint the money to be paid to his executors if he pleased, and, if he executed it voluntarily and without consideration, for the benefit of third persons, the money should be considered part of his assets, and his creditors should have the benefit of it. Townshend v. Windham, 2 Ves. Sen. 1, 9, 10; Ex parte Caswell, 1 Atk. 559, 560; Bainton v. Ward, 7 Ves. 503, note; s. c. cited 2 Ves. Sen. 2, and Belt's Supplt. 243; 2 Atk. 172; Pack v. Bathurst, 3 Atk. 269. The doctrine has been upheld to the full extent in England ever since. Chance on Powers, c. 15, § 2; 2 Sugden on Powers (7th Ed.) 27; Fleming v. Buchanan, 3 De G., M. & G. 976.1

Although the soundness of the reasons on which the doctrine rests has been impugned by Chief Justice Gibson, arguendo, and doubted by Mr. Justice Story in his Commentaries,2 the doctrine is stated both by Judge Story and by Chancellor Kent as well as settled; and it has been affirmed by the highest court of New Hampshire, in a very able judgment, delivered by Chief Justice Parker, and applied to a case in which a testator devised property in trust to pay such part of the income as the trustees should think proper to his son for life, and, after the son's death, to make over the principal, with any accumulated income, to such persons as the son should by will direct. Commonwealth v. Duffield, 12 Pa. 277, 279-281; Story, Eq. Jur. § 176, and note; 4 Kent, Com. 339, 340; Johnson v. Cushing, 15 N. H. 298, 41 Am. Dec. 694.

A doctrine so just and equitable in its operation, clearly established by the laws of England before our Revolution, and supported by such a weight of authority, cannot be set aside by a court of chancery, because of doubts of the technical soundness of the reasons on which it was originally established. It is true that, as the rights of the creditors could only be enforced in a court of chancery, they were remediless so long as no adequate equity jurisdiction existed in this Commonwealth. Prescott v. Tarbell, 1 Mass. 204. But such a consideration affects the remedy only, and not the right, and affords no reason

1 Accord: Edie v. Babington, 3 Ir. Ch. 568.

The property appointed by will is not assets for the creditors of the deceased until the property to which the deceased was entitled has been exhausted. Fleming v. Buchanan, 3 De G., M. & G. 976; Patterson v. Lawrence, 83 Ga. 703, 705, 10 S. E. 355, 7 L. R. A. 143.

Nor does the appointment under a general testamentary power abate with legacies payable out of the estate of the testator. White v. Mass. Inst. of Tech., 171 Mass. 84, 96, 50 N. E. 512.

If no appointment is made, the property subject to the power is not assets of the donee for his creditors, even where the power is general to appoint by deed or will. Holmes v. Coghill, 7 Ves. 499; 12 Ves. 206, 214; Gilman v. Bell, 99 Ill. 144, 149; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908; Ryan v. Mahan, 20 R. I. 417, 39 Atl. 893.

2 See, also, Humphrey v. Campbell, 59 S. C. 39, 45, 37 S. E. 26; Wales' Adm'r v. Bowdish's Ex'r, 61 Vt. 23, 33, 17 Atl. 1000, 4 L. R. A. 819.

for denying the right now that this court, sitting in equity, has been vested by the Legislature with ample powers to maintain and protect it. Gen. Sts. c. 113, § 2; Rogers v. Ward, 8 Allen, 387, 390, 85 Am. Dec. 710.

By the instrument of trust in the case before us, an annuity was payable quarterly to Mrs. Ingraham during her life, and the principal after her death to her executor or administrator in trust and for the special use and benefit of such persons as she by her last will, or by any revocable appointment in the nature thereof, might direct, and if no such will or appointment should be made, then to her heirs at law. The only restrictions expressed are, that the annuity during her life is to her separate use, free from debts or control of her husband, and each instalment thereof is to be paid upon her order when or after it has fallen due, so that she would have no right to assign it by way of anticipation, Perkins v. Hays, 3 Gray, 405; and that the annuity and the principal are both declared to be "inalienable by the respective grantees thereof,"-which clearly has no application to the general power of appointment, conferred upon her by the express terms of the trust, to dispose of the principal, after her death, by will or testamentary instrument in the nature thereof; and, she having exercised the dominion so granted to her, the property is thus brought within the equitable doctrine which makes it subject to her debts.

3

We are aware that it has been held by Vice Chancellor Kindersley, and by Lord Romilly, M. R., that the doctrine does not extend to the case of the execution of a general power by a married woman, without fraud. Vaughn v. Vanderstegen, 2 Drew. 165, 363; Blatchford v. Woolley, 2 Dr. & Sm. 204; Hobday v. Peters, 28 Beav. 354; Shattock v. Shattock, L. R. 2 Eq. 182; s. c. 35 Beav. 489. We need not consider whether those cases were well decided, or are applicable in this Commonwealth, where, by statute, every married woman has long been liable to be sued, and her property taken on execution, upon contracts made by her for her own benefit, and, since 1874, upon all her contracts with any person but her husband. Gen. Sts. c. 108, §§ 1, 3; St. 1874, c. 184; Willard v. Eastham, 15 Gray, 328, 334, 77 Am. Dec. 366; Major v. Holmes, 124 Mass. 108. It is quite clear that, even in England, all restrictions on her capacity and liability would terminate. with her coverture. Tullett v. Armstrong, 1 Beav. 1, 32, and 4 Myl. & Cr. 377, 395 et seq. And in the present case it does not appear, and has not been contended, that Mrs. Ingraham continued to be a married woman at the time of contracting the debts in question, or of exercising the power.

In Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254, and in Durant v. Massachusetts Hospital Life Ins. Co., 2 Low. 575, Fed. Cas. No. 4,188, the settlement differed from that before us in expressly provid

3 Contra, Godfrey v. Harben, 13 Ch. Div. 216, 221.