LECTURE LXII.

OF POWERS.

THE powers with which we are most familiar in this country, are 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. But the powers now alluded to, are of a more latent and mysterious character, and they derive their effect from the statute of uses. 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. They are so much more convenient and manageable than common law conditions, that they have been largely introduced into family settlements. It was repugnant to a feoffment at common law, that a power should be reserved to revoke it; and a power of entry, for a condition broken, could not be reserved to a stranger. These technical difficulties gave occasion to the introduction of powers, in connexion with uses; and Mr. Sugden says, that modern settlements were introduced, and powers arose, after uses were established in equity, and before they were recognised at law.

All these powers are, in fact, powers of revocation and appointment. Every power of appointment is strictly a power of revocation; for it always postpones, abridges, or defeats, in a greater or less degree, the VOL. IV.

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previous uses and *estates, and appoints new ones in their stead. As soon as the power granted or reserved in the instrument settling an estate is exerted, by changing the old, and appointing other uses to which the feoffee is to stand seised, the estate of the feoffee is drawn to the new uses as soon as they arise by means of the power, and the statute executes the possession. An appointment under a power operates to substitute one cestui que use for another. The use arising from the act of the person nominated in a deed of settlement, is a use arising from the execution of a power. It is a future or contingent use until the act be done, and then it becomes an actual estate by the operation of the statute. By means of powers the owner is enabled either to reserve to himself a qualified species of dominion, distinct from the legal estate, or to delegate that dominion to strangers, and withdraw the legal estate out of the trustee, and give it a new direction. The power operates as a revocation of the uses declared or resulting, by means of the original conveyance, and as a limitation of new uses.

I. Of the nature and division of powers.

In creating a power, the parties concerned in it are, the donor, who confers the power, the appointor or donee, who executes it, and the appointee, or person in whose favour it is executed. Mr. Sugden, upon the authority of Sir Edward Clere's case, defines a power to be an authority enabling a person to dispose, through the medium of the statute of uses, of an interest, vested either in himself or in another person. It is a mere right to limit a use; and the appointment in pursuance of it, is the event on which the use is to arise. The usual clas

■ Butler's note, 231, to Co. Litt. lib. 3.

6 Co. 17, b. Sugden on Powers, 82.

The New-York Revised Statutes have substituted the words grantor and grantee, for the donor and donee of a power in the English law.

sification of powers is as follows: (1.) Powers appendant or appurtenant; and they enable *the *317 party to create an estate, which attaches on his own interest. If an estate be limited to a man for life, with power to make leases in possession, every lease which he executes under the power, must take effect out of his life estate. (2.) Powers collateral, or in gross, do not attach on the interest of the party, but they enable him to create an estate independent of his own. Thus, if a tenant in fee settles his estate on others, and reserves to himself only a particular power, the exercise of that power must be on the interest created and settled on another. So, a power given to a tenant for life to appoint the estate after his death, as a jointure to his wife, or portions to his children, or to raise a term to commence from his death, is a power collateral, or in gross, for it cannot affect the life estate of the donee of the power. A power given to a stranger to dispose of, or charge the land for his own benefit, is a power also of this class. (3.) Powers simply collateral, are those which are given to a person who has no interest in the land and to whom no estate is given. Thus, a power given to a stranger to revoke a settlement, and appoint new uses to other persons designated in the deed, is a power 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 or merge the power. The general rule is, that a power shall not be exercised in derogation of a prior grant by the appointor. But this whole di

⚫ It has been the opinion of eminent lawyers, that a power in a tenant for life to charge or appoint portions for his children, was merely a power of selection or nomination, and not a power in gross, and so not to be extinguished by a fine or feoffment. But Sir Edward Sugden has clearly shown that this idea was founded in error. Sugden on Powers, 72. 74. 79.

Hale, Ch. B., Hardress, 415. Sugden on Powers, 46-49, 2d London ed.

vision of powers is condemned, as too artificial and arbitrary; and it serves to give an unnecessary complexity to the subject by overstrained distinctions. Mr.

Powell makes a very plain and intelligible *318 division of powers, into general powers, and particular powers; and Mr. Humphrey adopts the same division, and concludes that a more simple and better distribution of powers would be into (1.) General powers, to be exercised in favour of any person whom the appointor chooses. (2.) Particular powers, to be exercised in favour of specific objects. The suggestion has been essentially followed in the New-York Revised Statutes, which have abolished the existing law of powers, and established new provisions for their creation, construction, and execution. A power is defined in them 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 by some person capable at the time of alienating such interest in the land. Powers, says the statute, are general or special, and beneficial or in trust. 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. It is beneficial

• See his long note to Fearne on Executory Devises, 347-388, which is a clear and able view of the doctrine of powers of revocation and appoint

ment.

↳ Observations on Real Property, 83.

• Vol. i. 732.

a 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. The article commences with this broad proposition, powers are abolished.

• Ibid. 732, sec. 74, 75, 76, 77, 78. There is the same definition of a general, and of a special power, in Sugden, 425, and in Butler's note, 231, to Co. Litt. 271, b.

when no person other than the grantee has by the terms of its creation, any interest in its execution. 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 *319 to result from the execution of the power. A special power is in trust, when the dispositions it authorizes are limited to be made to any person or class of persons other than the grantee of the power; or when any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorized by the power.b

II. Of the creation of powers.

(1.) Estate created by the power.

No formal set of words is requisite to create or reserve a power. It may be created by deed or will; and it is sufficient that the intention be clearly declared. The creation, execution, and destruction of powers, all depend on the substantial intention of the parties; and they are construed equitably and liberally in furtherance of that intention. Nor is it material whether the donee of the power be authorized to limit and appoint the estate, or whether the language of the settlement goes at once to the practical effect intended, and authorizes the donee to sell, lease, or exchange. A devise of an estate generally, or indefinitely, with a power of disposition over it, carries a fee. But where the estate is given for

New-York Revised Statutes, vol. i. 732, sec. 79.

'New-York Revised Statutes, vol. i. 734, sec. 94, 95. Laws New-York, April 20th, 1830, c. 320, sec. 11.

Lord Mansfield, Doug. Rep. 293. Lord Ellenborough, 3 East's Rep. 441. Jackson v. Veeder, 11 Johns. Rep. 169.

Sugden on Powers, 96.

Dalison's Rep. 58. 1 Jones, 137. Co. Litt. 9, b. See infra, p. 536, S. P. An estate for life, with an unqualified power to appoint the inheritance, makes the whole an equitable fee. Barford v. Street, 16 Vesey, 135.