LECTURE LXII.

OF POWERS.

1. What are the powers with which we are most familiar in this country?-815.

The common law authorities, of simple form and direct application such as a power to sell land, to execute a deed, to make a contract, or to manage any particular business; with instructions more or less specific, according to the nature of the case.

2. Are there not other powers?—315.

Yes; powers deriving their effect from the statute of uses.

3. What are those powers, and how have the estates, arising from the execution of them, been classed?—315.

They are declarations of trust, and modifications of future uses; and the estates arising from the execution of them have been classed under the head of contingent uses.

4. What are all these powers in point of fact?-315. Powers of revocation and appointment.

5. Who are the parties concerned in making a power?-316, n. (.) They are the donor, who confers the power, the appointor or donee, who executes it, and the appointee, or person in whose favor it is executed. The New York Revised Statutes have substituted the words grantor and grantee for donor and donee.

6. How are powers usually classed?-317.

Into, 1. Powers appendant, or appurtenant. 2. Powers collateral, or in gross. And 3. Powers simply collateral. This classification of powers is admitted to be important only with reference to the ability of the donee to suspend, extinguish, or merge the power and it is condemned as being too artificial and arbitrary.

7. How is a power defined by the New York Revised Statutes? -318, n. (f.)

The New York Revised Statutes have abolished powers at

common law, as well as powers under the statute of uses, so far as they related to land, except it be a simple power of attorney to convey lands for the benefit of the owner. They have defined a power to be an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner, granting or reserving such power, might himself lawfully perform; and it must be granted to some person capable at the time of alienating such interest in the land.

8. How has the statute of New York divided powers?-318.

Into general and special. A general power authorizes the alienation in fee, by deed, will, or charge, to any alienee whatever. The power is special when the appointee is designated, or a lesser interest than a fee is authorized to be conveyed.

9. When is a power beneficial under the New York law ?-318. It is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution.

10. When is a general, and when a special, power said to be in trust, under the New York Revised Statutes?-318, 319.

A general power is in trust, when any person other than the grantee of the power is designated as entitled to the whole, or part of the proceeds, or other benefit to result from the execution of the power. And a special power is in trust, when the dispositions it authorizes are limited to be made to any person other than the grantee of the power; or when any person other than the grantee is designated as entitled to any benefit from the disposition or charge authorized by the power.

11. Is any formal set of words requisite to create or reserve a power?-319.

None at all; it may be created by deed or will; and it is sufficient that the intention be clearly defined.

12. What is the effect of a devise of an estate for life, with a power to appoint the fee, annexed?-319.

The devisee takes only an estate for life, unless there should be some manifest general intent of the testator which would be defeated by such a construction.

13. What have the New York Revised Statutes provided in such a case?-320.

They have declared that where an absolute power of disposition, not accompanied by any trust, or a general and beneficial power to devise the inheritance, shall be given to the owner of a particular estate for life or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be executed, or the lands sold for debt. So, if a like power of disposition be given to any person to whom no particular estate is limited, he takes a fee, subject to any future estates limited thereon, but absolute in respect to creditors and purchasers. The absolute power of disposition exists, when the grantee is enabled, in his lifetime, to dispose of the entire fee, for his own benefit.

14. Is there any distinction between a devise of lands to executors to sell, and a devise that executors shall sell the lands ?-320.

Yes; the former gives them an interest in the lands, the latter gives them but a power.

15. Have the New York Revised Statutes interfered with this distinction?-321.

Yes; they declare that a devise of lands to executors, or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power

16. Who may execute powers?-324, 325.

Every person capable of disposing of an estate actually vested in himself may exercise a power, or direct a conveyance of the land. Infants may execute powers simply collateral, and a feme covert may execute any kind of power without the concurrence of her husband.

17. Who may execute under the New York Revised Statutes?

-325.

By the New York Revised Statutes, though a power may

be vested in any person capable in law of holding, it can not be exercised by any person not capable of aliening lands, except in the case of a married woman.

18. Whence does the appointee under a power derive his title ?—

327.

From the instrument by which the power of appointment was created.

19. When the mode in which a power is to be executed is not defined, in what way may it be executed ?—330.

It may be executed by deed or will, or simply by writing. But the conditions annexed to the execution of the power should be strictly complied with.

20. Have not the New York Revised Statutes made some amendments to the law respecting the execution of powers?-333.

Yes; they have enacted (among other things), that if the conditions annexed to a power be merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor they are to be performed, they may be wholly disregarded in the execution of the power. In all other respects, the intention of the grantor of a power, as to the mode, time and conditions of its execution, must be observed, subject to the power of the court to supply defective executions.

21. May the power be executed without reciting it ?-334.

It may; or even referring to it, provided the act shows that the donee had in view the subject of the power.

22. May a power of revocation and new appointment be reserved in a deed executing a power?-336..

Yes; though the deed creating the power does not authorize it, and such powers may be reserved toties quoties.

23. What have the New York Revised Statutes enacted on this point?-337.

They have declared that powers that are beneficial, or in trust, are irrevocable, unless an authority to revoke them be granted or reserved in the instrument creating the power. They

have also declared, that where the grantor in any conveyance shall reserve to himself for his own benefit an absolute power of revocation, he shall be deemed the absolute owner of the estate, so far as the rights of creditors and purchasers are concerned.

24. What is the rule of equity with regard to a general power of appointment?-339.

The Court of Chancery holds that where a person has a general power of appointment over property, and he actually exercises his power, whether by deed or will, the property appointed shall form part of his assets, and be subject to the claims of creditors, in preference to the claim of the appointee. The party must have executed the power, or done some act indicating an intention to execute it; for it is perfectly well settled in the English law, that though equity will in certain cases aid a defective execution of a power, it will not supply the total want of any execution of it.

25. What provision has been made on this point by the New York Revised Statutes ?-341.

By them every special and beneficial power is made liable in equity to the claims of creditors, and the execution of the power may be decreed for their benefit.

26. What is a leading rule as regards the construction of powers?

-345.

The intention of the donor of the power is the great principle that governs in the construction of powers; and, in furtherance of the object in view, the courts will vary the form of executing the power, and, as the case may require, either enlarge a limited to a general power, or cut down a general power to a particular purpose.