Humphrey v. Campbell

I concur in the result. I must confess, however, that, at first, I was very much inclined to apply what is called the well settled English rule to this case, to wit: "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, as part of his assets and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees" (see 3 Pom. Eq. Jur., sec. 1106, note 2; 18 Am. Eng. Ency. of Law, 986; Brandies v.Cochran, 112 U.S., at page 352; Manson v. Duncanson, 166 U.S., at page 546); because it seems to me contrary to public policy to allow a person to take all the benefits of property, with the right to dispose of it, at his death, as he pleases, without the same being subject to the payment of his debts. As is said by Dargan, Ch., in Heath v. Bishop, 4 Rich. Eq., at page 50: "There are certain ideas that are inseparable from the institution of property, among the most prominent of which are the right of alienation, and its being subject to the payment of debts. In all cases like the present, the inquiry must be whether the debtor has a vested, determinate interest in the equitable estate sought to be subjected, with the present right of enjoyment in severalty. If he has, the right of the creditor follows, as a corollary in mathematical science does the main proposition." Here Miss Mary Butler Campbell unquestionably has the absolute right to the income of the property in question, during her life, which she could have disposed of as she pleased, with the further right to dispose of the property, at her death, by giving it to whomsoever she pleased. Having thus the right to the absolute enjoyment of the property during her life, with the right to dispose of it at her death, as she pleased, it seemed to me that the property should, in equity, be subject to the payment of her debts, just as if it were absolutely her own. For, as is said by Dargan, Ch., in the case above quoted from, at page 55, quoting, with approval, from Hallett v. Thompson, 5 Paige, 583: "It is contrary to sound public policy to permit a person to have the absolute and uncontrolled ownership of property for his own purposes, and to be able, at the same time, to keep it from his honest creditors." Of course, I am not to be understood as even intimating that Miss Mary Butler Campbell was animated by any such improper motive. On the contrary, I have no doubt she supposed that, by the first clause of her will, providing for the payment of her debts, particularly the debt due by her to the Confederate Home, that she had made ample provision for the payment of her debts.

The cases cited from other States by the counsel for appellant — notably the case of Clapp v. Ingraham, 126 Mass. 200;Commonwealth v. Duffield, 12 Penn. St., 277, andJohnson v. Cushing, 15 N.H. 298, seem to recognize and follow the English rule. On the other hand, the cases from our own State, which have been cited to sustain the Circuit decree, are not in point. In Williman v. Holmes, 4 Rich. Eq., 475, the power of appointment was not general, but was limited to the children and grandchildren of the testator. The donee of the power could not exercise it in favor of any person whom she might select, but her field of choice was limited to the children and grand-children of the testator; and for that reason the English rule could not have been applied. In Scott v. Burt, 9 Rich. Eq., 358, and in Pulliam v. Byrd, 2 Strob. Eq., 134, the power of appointment was not exercised, and all the cases, recognizing the English rule, hold that the rule cannot be applied unless the power is exercised. There are, however, at least three cases in this State, which, as I understand them, do fully sustain the conclusion of the Circuit Judge (Bentham v. Smith, Cheves Eq., 33; Aaron v. Beck, 9 Rich. Eq., 411, and Wilson v. Gaines, 9 Rich. Eq., 420); and yielding to the authority of those cases, I concur in affirming the decree of the Circuit Judge.