Price v. Cherbonnier

Page, J., delivered the opinion of the Court. This appeal is from a decree of the lower Court sustaining a demurrer to the bill filed in the case and dismissing the proceeding. The facts as stated in the bill are substantially as follows, viz.: William H. Goodwin was in his lifetime indebted unto Charlotte Price and Mary B. Price respéctively, in the sums set out in the bill. He died possessed of some personal estate, not sufficient to discharge his debts and of the real estate hereinafter set forth.

He left a last will and testament, by which after certain devises, the residue of the estate was to be distributed equally among the children then living of. John O. Price. By the will of Penelope D. Goodwin, the said real estate was devised to one Thomas Donaldson, in trust to pay the rents, issues and profits to her son, the said William H. ¹⁰⁸ Goodwin, during his life, and after his death in case the said William should marry and leave issue living, in trust for such children and in such proportion and interests as he should designate and appoint by last will and testament, and in case he died leaving no children or descendants living at the time of his death, then in trust for such grandchildren of the testatrix as should then be living, to be divided equally between them. Subsequently by a codicil to her will, she gave the trustees the title to the said property in fee subject to the said trusts with power to the trustee to sell and convey the same or any part thereof on such terms as he might deem proper, provided that any such sale should be in the lifetime of William and with his consent witnessed in writing.

Subsequently David G. McIntosh by substitution under an order of the Court became the trustee under the will of Penelope Goodwin in the place of the trustee named in the will. The said property being unproductive and supplying no income, Charlotte Price the appellant with the consent and approval of the trustee, and upon the assurance she would be compensated therefor, took William H. Goodwin to board with.her, and supported him from December, 1895, to February, 1902. Being without funds, a portion of the real estate was sold for taxes from time to time, and the said William H. Goodwin entered into an agreement with Charlotte Price and Colgate Price, that if they would advance the money to redeem the land so sold, the said Goodwin would execute a will and devise them a portion of the land; and in pursuance of the same the said Charlotte and Colgate Price did advance the money which was necessary to enable the trustee to redeem the.land. Goodwin died without leaving widow or children.

The prayer of the bill is that the personal estate may be applied in due course of administration in .payment of the debts of the complainants, the appellants, &c., and that the real estate or so much as may be required be sold for the payment of debts that may remain unsatisfied after the application of the personal estate, See. The questions presented are: 1st, does a creditor’s bill lie for the sale of the said real estate? and 2nd, can the agree ¹⁰⁹ ments with Colgate and Charlotte Price be enforced by declaring them to be equitable liens upon the property? There seems to be no question that William H. Goodwin under the will of Penelope Goodwin took an equitable life estate in the property with a power of appointment at his death. The appellant contends that “when a person has a general power of appointment over property, and actually exercises the power, whether by deed or will, the property appointed shall form a part of his assets, and be subject to the claims of creditors in preference to the claims of the appointee, and he cites in support of this doctrine several cases of which Johnson v. Cushing, 15 N. H. 298, is one of the clearest.

There the Court by Chief Justice Parker said: “When the owner of property who has the right to dispose of it in such manner and under such limitations as he pleases, confers upon another the general power of making such disposition of it,' as he pleases, or in other words invests him with all the attributes of ownership over it and the other accepts the power thus tendered to him, and undertakes to exercise dominion over the subject-matter as if he was owner, the original proprietor having authorized the other to treat it as if it was the property of the latter, by exercising all the power over it which he could exert if it were entirely his property; and he having undertaken to treat it as if it was his property by making a disposition of it, under such a power, a Court of equity may well do what the parties have done; that is treat it as the property of the appomter