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charge an estate for such uses as he should think fit, and he had by deed appointed it for the benefit of his children, the direction should be changed, and the fund applied for the payment of his debts. But if he wholly omitted to appoint, the court had not gone so far as to do it for him; though he thought it would be very reasonable and agreeable to equity, when creditors were concerned. The same doctrine was afterwards repeatedly held by Lord Hardwicke. Property over which such a dominion was exercised by virtue of a general power, was considered an absolute property, so far as to be liable for debts; but if it be a particular power to appoint for third persons designated in the power, and not for the benefit of the donee of the power, the conclusion would be different. Sir William Grant, in Holmes v. Cogshill, and Lord Erskine, afterwards in the same case, on appeal, were very clear and explicit in laying down the established distinction, that equity would aid the defective execution of a power, and refuse to interfere where there was no execution of it; while, at the same time, they were free to admit, that there was no good reason or justice in the distinction, and that it was raised and sustained with some violation of principle.
If the interest was to be vested in the appointor by an act to be done by himself, it ought, perhaps, to be considered his property for the benefit of his creditors; and yet the above distinction had been settled and maintained from 1668 down to that time. The creditors have no right, according to the established doctrine, to have money raised out of the estate of a third person when the power *was not executed; and a
Hinton v. Toye, 1 Atk. Rep. 465. Townsend v. Windham, 2 Vesey, 9. Troughton v. Troughton, ibid. 656.
b 7 Vesey, 506.
Bainton v. Ward, 2 ibid. 172. Lord Pack v. Bathurst, 3 Atk. Rep. 269.
court of equity will not, by its own act, charge an estate, and supply the want of the execution of a power. This would be to destroy all distinction between a power and absolute property; and though the money which the party possessing a power has a right to raise may be considered his property, yet the party to be affected by the execution of the power can only be charged in the manner and to the extent specified at the creation of the power. The courts only assume to direct the application of the fund raised by virtue of the power, and to hold it to be assets for the payment of debts. Lord Erskine intimated, that the difficulties which had embarrassed the subject were proper for legislative interference, and that it might as well be declared, that where a power was given to dispose of property by a certain act, if the party died without doing the act, the property should still be assets.
(9.) Equity control over the execution of powers.
The New-York Revised Statutes have wisely cleared away these difficulties, and given due and adequate relief to the creditor, by rendering the execution of the power imperative in certain cases, and making the jurisdiction in equity co-extensive with the requisite relief. Thus, every special and beneficial power is made liable in equity to the claims of creditors, in the same manner as other interests that cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled." It is further declared, that every trust power (being a power in which persons, other than the grantee of the power, are entitled to the benefits resulting from the execution of it) becomes an imperative duty on the grantee, unless its execution be made to depend expressly on the will
a New-York Revised Statutes, vol. i. 734, sec. 93.
of the grantee, and the performance of it may be compelled in equity, for the benefit of the parties interested. Nor does it cease to be imperative, *though the grantee has a right to select any, and *342 exclude others of the persons designated as the objects of the trust. And where a disposition under a power is directed to be made to, or among, or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion. But if the manner or proportion of the distribution be left to the trustees, they may allot the whole to any one or more of the persons, in exclusion of the others. If the trustee of a power, with the right of selection, dies leaving' the power unexecuted, or if the execution of a power in trust be defective, in whole or in part, its execution is to be decreed in equity for the benefit equally of all the persons designated as objects of the trust. The execution, in whole or in part, of any trust power, may also be decreed in equity for the benefit of creditors or assignees (if the interest was assignable) of any person entitled, as one of the objects of the trust, to compel its execution. So, purchasers for a valuable consideration, claiming under a defective execution of a power, are entitled to the same relief in equity as purchasers in other case. It is likewise added, for greater any caution, that instruments in execution of a power are equally affected by fraud, as conveyances by owners and trustees. Every power is also made a lien or charge upon the lands which it embraces, as against creditors and purchasers in good faith, and without notice, of or from any person having an estate in such lands, from
the time the instrument containing the power is recorded; and as against all other persons from the time the instrument takes effect."
Some part of these statute provisions would seem to
have changed the English equity doctrine of illu*343 sory appointments, *where there was an allotment of a nominal, and not of a substantial interest. They have at least rescued the law from a good deal of uncertainty on the subject, and relieved the courts of equity from that difficulty and distress of which the master of the rolls, in Vanderzee v. Aclom, and Lord Eldon, in Butcher v. Butcher, have so loudly complained, when they endeavored to ascertain the proportion of inequality that would amount to an illusory appointment. The rule at common law was to require some allotment, however small, to each person, where the power was given to appoint to and among several persons; but the rule in equity requires a real and substantial portion to each, and a mere nominal allotment to one is deemed illusory and fraudulent. Where the distribution is left to discretion, without any prescribed rule, as to such of the children as the trustee should think proper, he may appoint to one only. But if the words be, amongst the children as he should think proper, each must have a share, and the doctrine of illusory appointments applies.* The distribution under the power of appointment, by the New-York statute, must be equal in the one case; and, in the other, the trustee has an entire discretion in the selection of the objects, as well as to the amount of
• New-York Revised Statutes, vol. i. 735. 737, sec. 107. 125. 132.
b 4 Vesey, 784.
1 Ves. & Bea. 79.
d The Master of the Rolls, in Kemp v. Kemp, 5 Ves. 857.
• 4 Ves. 771. Kemp v. Kemp, 5 ibid. 849. Crook's case, cited in Astry
v. Astry, Prec. in Ch. 256. Thomas v. Thomas, 2 Vern. Rep. 513. Maddison v. Andrew, 1 Vesey, 57.
the shares to be distributed.
In respect to the imperative duty of the grantee of a trust power to execute it, the New-York statute has only declared the antecedent law. Though it be an immutable rule, that the non-execution of a naked power will never be *344 aided, yet, if the power be one which it is the duty of the party to execute, he is a trustee for the exercise of the power, and has no discretion whether he will or will not exercise it. Chancery adopts the principle as to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interests of those persons for whose benefit he is called upon to execute it. This principle, according to Lord Eldon, pervaded all the cases. The equity jurisdiction, in relieving against the defective execution of powers, is exerted in the case of a meritorious consideration in the person applying for aid; and here again the English law and the New-York statute are the same. The assistance is granted in favor of creditors, and bona fide purchasers, who rest their claim upon a valuable consideration, and in favour of domestic relatives, whose claims as appointees are founded upon the meritorious considerations of marriage or blood, or where the non-execution arises from fraud. The numerous cases which regulate and prescribe the interference of chancery in aiding and correcting the defective execution of powers, and also in affording relief against the actual execution, or fraudulent operation of powers, cover a vast field of discussion; but the subject would lead us too far into detail,
The English statute of 1 Wm. IV., c. 46, entitled, "an act to alter and amend the law relating to illusory appointments," declares that no appointment shall be impeached in equity, on the ground that it is unsubstantial, illusory, or nominal. This puts an end to the equity jurisdiction on the subject of illusory appointments, and it applies to real as well as personal estates. 2 P. Wms. 227, note. Tollett v. Tollett, ibid. 489.
• Brown v. Higgs, 8 Ves. 574. Gibbs v. March, 2 Metcalf Rep. 243,