Holmes v Coghill
| Jurisdiction | England & Wales |
| Judgment Date | 11 March 1806 |
| Date | 11 March 1806 |
| Court | High Court of Chancery |
English Reports Citation: 33 E.R. 79
HIGH COURT OF CHANCERY
See Jackson v. Crick, 1871, 19 W. R. 548; In re Roper, 1888, 39 Ch. D. 488; Ashby v. Costin, 1888, 21 Q. B. D. 404.
holmes w. coghill. March IQth and llth, 180G. [See Jactoi v. CVicfc, 1871, 19 W. R. 548 ; In re Roper, 1888, 39 Ch. D. 488 ; Ashby v. Costin, 1888, 21 Q. B. D. 404.] Distinction between a power and absolute property. A Power, unless executed, not assets for debts. Power executed by Will; but afterwards discharged; and a new Power created. A subsequent Codicil will not by the mere effect of republish-ing the Will be an execution of the Power. Though Equity will in certain cases aid a defective execution of a Power, the want of execution cannot be supplied even for creditors. This cause came before the Lord Chancellor upon an Appeal by the Plaintiffs, from the decree pronounced at the Rolls. (Reported 7 Ves. 499 ; see the notes, 508 ; 2 Ves. jun. 594.) t, f The Solicitor General and Mr. Hall for the Plaintiffs, Appellants. i The general question is, whether the sum of 2000, which Sir John Coghill had power to raise, is to be considered as assets. The first ground, upon which that may be maintained, is, that Jus disponendi is to be considered as property itself, upon several authorities : Goodtitle v. Otway (2 Wils. 6), Maskelyne v. Maskelyne (Amb. 750), Tomlinson v. Dighton (1 P. Will, 149 ; Salk. 239 ; 10 Mod. 31; Com. 194; 2 Eq. Ca, Ab. 309, pi. 13), Robinson v. Dusgale (2 Vern. 181), Pease v. Mead (Hob. 9), Maddison v. Andrew (I Ves. sen. 57), Thompson v. Towne (2 Vern. 319 ; 1 Eq. Ca, Ab. 242 ; Pre. Ch. 52), Troughton v. Troughton (3 Atk. 656 ; 1 Ves. sen. 86). If there is no case directly in point, where the precise question has been raised, the result of all these authorities, with the dictum of Lord Hardwicke, as stated by Atkyns in Bainton v. Ward (1 Atk. 172, stated from the Register's Book, 7 Ves. 503, note), [207] is, that a general power of disposition, not restrained as to the objects or the mode, is in effect property : the distinction between power and property being, that the former is subject to some restraint, either as to the objects or the mode of disposition : the latter consisting in general and unconfined dominion. 2dly, Considering this as a mere power, at the date of the Will unquestionably the testator intended to execute his powder in favour of his creditors ; that power which was then in force ; though afterwards rescinded. That intention is transferred to the power under the new settlement by the codicil, subsequent to that settlement j which codicil was a republication of the Will. Whether that is the legal effect, or not, the testator evidently conceived, that he had provided for his debts in that way. The codicil is incorporated with the Will: both making one instrument, speaking and having effect at the date of the codicil. The effect of the republication, therefore, would be to pass lands, purchased between the dates of the Will and codicil ; if the language of the Will was sufficiently comprehensive, and they were duly executed; though a specific intention to republish the Will did not appear in the codicil. (Pigott v. Waller, 7 Ves. 98.) There is no doubt, where an attempt is made to execute a power in favour of creditors but the execution is defective, as, if there is only one witness, three being necessary, the defect will be supplied, upon the established law of the Court : Toilet v. Toilet (2 P. Will. 489), and many other cases. The law of the Court is also admitted, that, if a power is executed in due form, but [208] m favour of a volunteer, the Court will take the subject from that person ; and give it to the creditors of him, who had the power. (George v. Milbanke, 9 Ves. 190.) But it is said, where there is a complete want of execution, it cannot be supplied for creditors ; and certainly there is no decision, that it can. But, if that cannot be done, and this decision is right, the state of the law upon this subject is extraordinary. The Court has no regard for the...
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