Wales' Admr. v. Bowdish's Exr. uncle had no original right of appointment of the remainder, in the conveyance, whatever its form was, of the life estate to him. The life estate was his absolutely and the use and income of it would have increased his assets. It seems to us the case in effect was an attempt by the father to secure his estate to his daughter as against creditors by giving up the use of a life estate during a period of his life in consideration that he might appoint the use of the same property for an equal term after his death. It was in other words a transaction as to his own property in fraud of his creditors. It was therefore quite different from the exercise of power as to another man's property. If the transaction between the uncle and nephew be treated on the part of the uncle as a gift of the use to the nephew without consideration other than love and affection, and the covenant from the nephew as simply a donation of power by him to the uncle in respect to the nephew's property, then the case is a full authority in support of the orator's claim in this case. But we think it was one trans. action, and the obligation of the nephew was not independent of the transfer of the use to him but was in consideration of it. Therefore the benefit of that obligation must enure to the uncle's estate. These facts well account for the language of Lord Hardwicke. He says: "Here the testator had the power to appoint the benefit of the covenant, or in the other light of this chattel interest in the land, to take effect out of the remainder in tail, generally to any person, or to take it to himself; he appoints it not to himself, but merely voluntarily to a daughter, to take effect after his death, as it could not be otherwise; in respect of his creditors it must be considered as part of his estate at the time of his death, he having executed so as to gain the interest to himself and attempted to pass it at the same time to his daughter, the court will not suffer it, saying he has been guilty of a fraud as to them, being indebted at the time." In the case, Clapp v. Ingraham, supra, the power was not created in a will. It was a provision in a contract between an insurance company and one Head as trustee of one Mrs. Ingraham. The company received a sum of money from this trustee and agreed to pay the Wales' Admr. v. Bowdish's Exr. income to this woman during her life, and the principal, after her decease, to such persons as she should direct in her will. It does not appear in the report of the case what was the source of this money or who created the original trust or upon what terms, or but that it was her own money when it passed into the hands of Head as her trustee, or but that the application of the general proposition relied upon was demanded in order to defeat an attempt to keep her own property from going to pay her debts. All that appears is the contract between the trustee and the insurance company. If the cases from New Hampshire and Massachusetts are to be regarded as controlling the case at bar, then we must hold not only that the power of appointment in the will in question is general, within the meaning of the rule, but that the rule is applicable notwithstanding its application would defeat the intention of the testator and would subject property, which the donee of the power never owned and which never formed the basis of his credit, to the payment of the debts of his estate as against the appointment made pursuant to the will and in furtherance of it. The argument for such a holding is that the testatrix invested the donee of the power with all the attributes of ownership of the property; and that he exercised dominion over the property as though it was his own. There is no distinction between ownership and all the attributes of ownership. But it was never held that the appointee derived his ownership from that of the donee. It comes from the donor upon exercise of the power by the donee. One attribute of ownership is title; another the unrestricted right of disposition. This donee had neither of these, therefore he was not invested with all the attributes of ownership. He was never the owner. The first assumption of the argument is therefore false. The second has a modicum of plausibility, but little truth. In his instrument of appointment the donee of the power says: "In furtherance of the will of my late sister, Lora, I direct," etc. He does that which by the will he is qualified to do, not as if it Wales' Admr. v. Bowdish's Exr. was his own property, but as if it was the property, as it in fact was, of the testatrix. It is forced to say he dealt with it as his own. The early English cases where the doctrine originated were plainly different from this case. They were generally cases where the power was reserved to the settlor out of his own property, whereby, if sustained, he would place it beyond the reach of even his future creditors, or else the donee of the power enjoyed something more than the mere exercise of it and had an actual consideration as in Townshend v. Windham, supra, or the provision conferring the power was held to be sufficient to carry the property itself to the donee of the power. The first case is, Ashfield v. Ashfield, 2 Vern. 287, where there was a voluntary settlement by Ashfield of his own personal estate in trust to such uses as he by deed or will should appoint. He afterwards by will appointed to his wife and children. It was held to be assets of the estate and liable to the debts of the husband, and the devise to the wife and children was only in the nature of a legacy. The donee of the power was its author who in substance attempted to give away his property in disregard of his own creditors. In the same volume, page 319, is the case of Thompson v. Towne, often cited. The case is stated in the report thus: "J. S. on sale of land takes a bond from the purchaser to pay any sum of money not exceeding £500, as he should by will appoint. And afterwards by will distributes it and appoints payment to several of his relatives. J. S. having power to dispose, the £500 must be looked upon as part of his estate and decreed to be assets liable to the plaintiff's debts." It is in this clumsily reported case that the expression "having power to dispose," first appears. There is the beginning of the growth of the doctrine that a general power to appoint, once exercised, creates ownership. The substance of the case seems to be simply that where the grantor of land provides that the consideration should be paid Wales' Admr. v. Bowdish's Exr. to persons whom he should appoint, and he does appoint, the creditors of his estate shall hold it as against the appointee. Precisely the same in substance is the case of Lassels v. Cornwallis, in the same volume, page 465. Hinton v. Toye, 1 Atk. Ch. 465, is a case where a wife appointed a certain sum to be paid to her husband, "to be employed by him in such charitable uses, or other purposes and intents as he should think fit," and the money was passed to him. While thus holding the fund he devised to the defendants. Where money is given to one to be used as he pleases, it might well be considered as an absolute gift, and the Master of the Rolls might well say as he did, "So no stronger instance can be given, than the present to prove ownership and property." In Bainton v. Ward, 2 Atk. 172, Ward had the power to charge his wife's estate £2,000 in his lifetime or by will at his death. He could raise it for his own use at any time. As the chancellor there said: "This money was not settled at all, but absolutely in the power of Ward." The power was by settlement, after marriage, as follows: "Provided always that George Ward shall, by appointing two trustees, under any deed in his lifetime, or by his will at his death, charge all the wife's estate with a sum not exceeding £2,000." We here find the first full statement of the proposition upon which the orator relies. Lord Hardwicke says: "Where there is a general power given or reserved to a person for uses, intents and purposes as he shall appoint, this makes it his absoInte estate, and gives him such dominion over it as will subject it to his debts." In respect to this, Maddock, in his Treatise on Chancery, says that no such general proposition was necessary to the decision, nor is it considered as correct. 1 Mad. Ch. p. 608. It will be noted that this proposition is first stated in a case where the donee of the power had the right to exercise it for his own unrestricted benefit while he lived. Wales' Admr. v. Bowdish's Exr. Fleming v. Buchanon, 3 De Gex M. & G. 976, is not very helpful as the nature of the power does not appear except in these words: "and having a general power of appointment.' And further it was a decision, so far as it pertained to an appointed estate, under the statute known as Sir John Romilly's Act, which is set out in the report of the case. Many of the other English cases usually cited in support of the general statement of the doctrine in the elementary books, are cases where the general rule was recognized, but they did not involve a decision as to its scope or application, as in Holmes v. Coghill, 9 Ves. Sen. 498, where the question was as to the proper execution of the power. And in Thorpe v. Goodall, 17 Ves. Jr. 388, where it was held that a bankrupt seized for life with a general power of appointment, with remainder, in default of appointment, to the heirs of his body, cannot be compelled to execute the power for his creditors. And in Harrington v. Hoste, 1 Cox Ch. 131, where the only decision was that when no steps have been taken to appoint or dispose of the fund, the court could not arrest it in transitu, even for creditors. And in Tomlinson v. Dighton, 1 P. Wms. 149, where the question was whether there had been a good execution of the power. And in George v. Milbank, 9 Ves. Jr. 190, where the decision was that the equity of a purchaser from a party taking under a voluntary deed of appointment, was preferred to that of general creditors. This was also a case where the power to appoint was reserved to the owners in their conveyance. Applying the rule well expressed by Chief Justice Marshall, that the positive authority of a decision is co-extensive only with the facts on which it is made, it is plain that the above cases fall far short of the demand in the case at bar. But it is equally plain that in later cases the substantial equity in legal sense upon which the rule originally rested and not upon a mere moral duty was lost sight of or disregarded, and its scope and application extended by degrees, and the definition of a general power given by Sugden and the limitation of its proper application stated by Jeremy and recognized by Maddock and |