Bankrupt's Insurance Policies lock, J., dissented from the opinion of the majority of the court in Re Orear, supra. He questions: — Is the power reserved by the bankrupt in these insurance contracts of nominating and changing his beneficiaries such a power as he might have exercised for his own benefit but not such as he might have exercised for the benefit of some other person? The policies in dispute are life policies, payable only after the death of the insured. How therefore in the very nature of things could the bankrupt exer cise this power for his own benefit, or by its exercise vest himself with an estate payable after his death? However it is quite clear the bankrupt could have exercised the power re served for the benefit of anyone having an insurable interest in his life, and as he could thus exercise the power for the benefit of another, under the very terms of the act in question, it is clear that such power did not by operation of law as of the date of adjudication pass to the trustee to be by him exercised.
Yhen the Matter of Orear came before the same court subsequently (189 Fed. Rep. 888) there was an issue the owner ship of a policy payable to the wife of the bankrupt. The exemption secured to her by the state law was upheld notwithstanding that the insured had the power to change the beneficiary as in the earlier case. As before the trus tee claimed that because of this power the policy was not expressed to be for the benefit of the wife of the insured within the meaning of the Missouri statute. The court replied that if this contention were allowed to be true it would practically nullify the statute for the reason that substantially all modern policies give the insured the right to change the beneficiary and confer upon him a right of surrender and of borrow ing on the policy. "If these provisions which have for several years appeared in substantially every policy would pre clude the operation of this statute, then," (the court said) "when last enacted it was a mere idle form of words and re
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ferred only to an obselete kind of policy." But it seems that the rights of the beneficiary can be defended on the gen eral doctrine of powers, which is that where a donee has an absolute power of appointment and the power is not exe cuted, a court of equity will not subject the subject-matter of the power as assets for the payment of the donees' creditors.9 In Pingreev. NationalLife, 144 Mass. 374, it was held that the reserva tion of the right of surrendering the policy would not prevent the policy from constituting a valid trust in favor of the beneficiary until the power was exercised; that an unrevokcd trust is valid even though there is an express power of revocation. The leading case in this country, Clapp v. Ingraham, 126 Mass. 200, holds that where a person has a general power of appointment either by deed or by will and executes this power the property appointed is deemed in equity part of his assets and subject to the demand of his creditors in preference to the claims of his volun tary appointees. But a mere right to exercise a power cannot be reached by creditors.10 The case oiBlinn v. Dame, 207 Mass. 159, was one where the holder of an endowment policy had reserved in it the power to surrender or assign the policy at any time. He executed a gen eral assignment of all his property, and it was held that the assignees took this policy with his other property. It is apparent from the statement of the facts that the insured executed the power reserved to him. The court did not decide whether the beneficiaries' (his children) interests were vested or "22 Am. & Eng. Ency. Law, 1146; Sugden v. Powers, 3d Am. Ed. 225; Crawford v. Langmaid, 171 Mass. 309; 10 Crawford v. Langmaid, supra.
