This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Property which is subject to a general power of appointment is not, apart from statute, liable for the payment of debts of the donee, even in equity, since the person entitled in default of appointment has an equal equity with the donee's creditors.70 In England, however, and also in some states, if such a power, whether testamentary or not, is executed by the donee in favor of one who pays no consideration, a "volunteer,"71 the property is thereby made assets in equity for payment of the donee's debts, and the claims of creditors will take precedence of the claims of the appointees.72 The doctrine has been criticized as operating to defeat the intention of the donor of the power and of the donee as well, and as ignoring the distinction between powers and
64. Davies v. Huguenin, 1 Hem. & M. 730; Isaac v. Hughes, L. R. 9 Eq. 191; In re Evered, (1910) 1 Ch. 147.
65-66. Sugden, Powers, 93; See Edward Clere's Cas, 6 Co. Rep. 17b; Maundrell v. Maund-rell, 10 Ves. 24.
67. Ante, Sec. 32.
68. Hetzel v. Barber, 69 N. Y. 1; Jennings v. Conboy, 73 N. Y. 230.
69. Farwell, Powers, 38, citing Cross v. Hudson, 3 Bro. C. C. 30; Mortlock v. Buller, 10 Ves. 292.
70. Holmes v. Coghill, 7 Ves. 499. 12 Ves. 206; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908; Patterson v. Lawrence, 83 Ga. 703, 7 L. R. A. 143, 10 S. E. 355; Gil-man v. Bell, 99 111. 144; Crawford v. Langmaid, 171 Mass. 309, 50 N. E. 606; Montague v. Silsbee, 218 Mass. 107, 105 N. E. 611; Ryan v. Mahan, 20 R. I. 417, 39 Atl. 893.
71. An appointee by will has been decided to be a volunteer, although the appointment is made in pursuance of a covenant executed for a pecuniary consideration. In re Lawley (1902) 2 Ch. 673, 799; Beyfus v. Lawley (1903) App. Cas. 411; Vinton v. Pratt, 228 Mass. 468, 117 N. E. 919.
That the doctrine making the appointed property assets does not apply in favor of creditors as against a bona fide purchaser from a volunteer appointee, see Patterson v. Lawrence, 83 Ga 703, 7 L. R. A. 143, 10 S. E. 355.
72. Sugden, Powers, 474; Far-well, Powers, 286; Holmes v. Coghill, 7 Ves. 499; O'Grady v.
Wilmot (1916) 2 App. Cas. 231. 246, 247, 270; Brandies v. Cochrane, 112 U. S. 344, 28 L. Ed. 760; Manson v. Duncanson, 166 U. S. 533, 546, 41 L. Ed. 1105; Knowles v. Dodge, 1 Mackey. (D. C.) 66; Gilman v. Bell, 99 111. 144; Clapp v. Ingraham, 126 Mass. 466; Johnson v. Cushing, 15 , N. H. 288; Tallmadge v. Sill, 21 Barb. (N. Y.) 34; Rogers v. Hinton, 62 N. Car. 101, 63 N. Car. 78; Freeman's Adm'r v. Butters, 94 Va. 406, 26 S. E. 845.
The appointed property is not to be subjected to payment of debts if there is other property sufficient for the purpose. Patterson v. Lawrence, 83 Ga. 703, 7 L. R. A. 143, 10 S. E. 355; White v. Massachusetts Inst, of Technology, 17 Mass. 84, 50 N. E. 512; Tuell v. Harley, 206 Mass. 65, 91 N. E. 1013; Fleming v. Buchanan, 3 De G., M. & G. 976.
The doctrine obviously has no application to special powers, that is, powers to be exercised in favor of a particular class of persons. Price v. Cherbonnier, 103 Md. 107, 63 Atl. 209.
Property,73 and has been repudiated or questioned in two or three jurisdictions.74 On the other hand it has been said, in support of the doctrine, that equity in applying it merely treats the appointed land or fund as the property of the person who, by the express authority of the original owner, has the right to treat it as his property and does so.75 In England, execution is now allowed by statute against land over which the debtor has a power which he may exercise for his own benefit:75a and in a number of states a power which can be executed to the extent of a fee simple estate in favor of the donee himself is by statute made equivalent to an estate in fee simple in him for the purpose of satisfying the claims of his creditors, and the execution of the power may be decreed for their benefit.76