table rule, that the non-execution of a naked power will never be aided," yet if the power be one which it is the duty of the party to execute, he is a trustee for the exercise of the power, and has no discretion whether he will or will not exercise it. Chancery adopts the principle as to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interests of those persons for whose benefit he is called upon to execute it. This principle, according to Lord Eldon, pervaded all the cases. The equity jurisdiction, in relieving against the defective execution of powers, is exerted in the case of a meritorious consideration in the person applying for aid; and here again the English law and the New-York statute are the same. The assistance is granted in favour of creditors, and bona fide purchasers, who rest their claim upon a valuable consideration, and in favour of domestic relatives, whose claims as appointees are founded upon the meritorious considerations of marriage or blood, or where the non-execution arises from fraud. The numerous cases which regulate and prescribe the interference of chancery in aiding and correcting the defective execution of powers, and also in affording relief against the actual execution, or fraudulent operation of powers, cover a vast field of discussion; but the subject would lead us too far into detail, and I must content myself with referring the student to the clear and ample digest of them in Sir Edward Sugden's elaborate treatise on the subject. We shall conclude this head of inquiry with a brief view of a few other leading points respecting the execution of powers, and which are necessary to be noticed, in order not to leave the examination of the doctrine far too unfinished.

A power will enable the donee to dispose of a fee, though

a 2 P. Wms. 227. note. Tollet v. Tollet, ibid. 489. b Brown v. Higgs, & Vesey's Rep. 574.

Sugden on Powers. 341. to 421.

it contain no words of inheritance, as in the case of a power given by a testator to sell or dispose of lands; and this construction is adopted in favour of the testator's intention. So, a power to charge an estate, with nothing to restrain the amount, will, in equity, authorize a charge to the utmost value, and as equivalent to it, a disposition of the estate itself, in trust to sell and divide amongst the objects. And, on the other hand, a power to grant or appoint the land will authorize a charge upon it, and a power to sell and raise money implies a power to mortgage. If, however, the interest be expressly indicated by the power, a different estate cannot be appointed under it, though, without positive words of restriction, a lesser estate than that authorized may be limited. 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. A power to appoint to relations, extends to all capable of taking within the statute of distributions. This seems to be the only reasonable limit that can be set to a term so indefinite. But, on the other hand, a power to appoint to children, will not authorize an

a Liefe v. Saltingstone, 1 Mod. Rep. 189. of Stafford, 7 East's Rep. 521.

The King v. Marquis

b Waneham v. Brown, 2 Vern. Rep. 153. Long v. Long, 5 Vesey's Rep. 445.

c Roberts v. Dixall, 2 Equ. Cas. Abr. 668. pl. 19. Lord Macclesfield, in Mills v. Banks, 3 P. Wms. 9.

d Whitlock's case, 8 Co. 69. b. Phelps v. Hay, MS. App. to Sugden on Powers.

e Sugden, p. 452, 453. Talbot v. Tipper, Skinner, 427. Earl of Tankerville v.. Coke, Moseley, 146. Lord Hinchinbroke v. Seymour, 1 Bro. 395. Bristow v. Warde, 2 Vesey, jr. 326.

f Sugden, 514, 515.

appointment to grandchildren. This is the settled rule, yet it naturally strikes the mind as a very strict and Marsh construction,a

We have already seen," that by the New-York Revised Statutes, no appointment is void for excess, except so far as the appointment is excessive, and the general rule in the English law is the same. It is understood that the execution of a power may be good in part, and bad in part, and that the excess only, in the execution of the power, will be void. The residue will be good when there is a complete execution of the power, and only a distinct and independent limitation unauthorizedly added, and the boundaries between the sound part and the excess, are clearly distin guishable, as in the case of a power to lease for twentyone years, and the lease be made for twenty-six years.

(3.) Of the extinguishment of powers.

relate

There are some subtle distinctions in the English law, to the cases in which powers are to be deemed Suspended, merged, or extinguished.

If a lease be granted out of the interest of the donee of a power appendant, it cannot be defeated by a subsequent exercise of the power. The lease does not strictly sus pend its exercise, but the future operation of the power must be in subordination to the lease, and the estate created by it cannot vest in possession until the previously created lease expires. The donee of the power cannot defeat his own grant.

Nor can the donee of a power

a The Master of the Rolls, in Alexander v. Alexander, 2 Fesey's Rep. 642. Brudenell v. Elwes, 1 East's Rep. 442.

b Vide supra, p. 107.

c Peters v. Marsham, Fitzg. 156. Sir Thomas Clarke, in Alexan

der v. Alexander, 2 Vesey's Rep. 640. Adams v.

651. Commons v. Marshall, 7 Bro. P. C. 111. 105. and the authorities there cited.

Goodright v. Cater, Doug. Rep. 477

Adams, Coup. Rep.

See also, suprav

simply collateral, suspend or extinguish it by any act of his own. But a total alienation of the estate extinguishes a power appendant, or in gross, as if a tenant for life with a power to grant leases in possession, conveys away his life estate, the power is gone; for the exercise of it would be derogatory to his own grant, and to the prejudice of the grantee. Even a conveyance of the whole life estate, by way of mortgage, extinguishes a power appendant or appurtenant. This is now the received doctrine, according to Mr. Sugden; but the opinion of Lord Mansfield, in Ren v. Bulkeley, is more just and reasonable; for why should a mortgage of the life estate, contrary to the evident intention of the parties, affect the power beyond what was necessary to give stability to the mortgage?° Whether a person having a life estate, with a power collateral or in gross to appoint, can exercise the power after having parted with his life estate, has been made a question. The better opinion would seem to be, that the power is not destroyed, for the estate parted with is not displaced by the exercise of the power; though, to avoid doubt, it is usual first to appoint the estate, and then to

a 15 Hen. VII. fo. 11. b. translated in App. No. 1. to Sugden on Powers. Co. Litt. 237. a. 265. b. Digges's case, 1 Co. 175. a. Willis v. Shorral, 1 Atk. Rep. 474. Sugden on Powers, 50. 67. b Lord Mansfield, in Ren v. Bulkeley, Doug. Rep. 292.

c Sugden on Powers, 57.

d Doug. Rep. 292..

e The N. Y. Revised Statutes have placed this subject on just grounds, by declaring that the power of a tenant for life to make leases, is not assignable as a separate interest, but is annexed to the estate, and passes with the conveyance of the estate, and a special exception of it extinguishes it. So, a mortgage by the donee of the power, does not extinguish it or suspend it. The power is only bound by the mortgage, and made subservient to it.-N. Y. Revised Statutes. vol. i. 733. sec. 88-91. See, also, supra, p. 107.

convey. All these various powers, except the last, may be extinguished by a release to one who has an estate of freehold in the land; and, as a general rule, (though it has its exceptions,) they are extinguished by a common recovery, fine, or feoffment, for those conveyances, according to the forcible expression of Sir Matthew Hale, “ransack the whole estate," and pass or extinguish all rights, conditions and powers belonging to the land, as well as the land itself.b

It has also been a question of much discussion, and of some alternation of opinion, whether a power was not merged or absorbed in the fee, in the case of an estate limited to such uses as A. should appoint, and, in default of appointment, to himself in fee. The Master of the Rolls, in Maundrell v. Maundrell, held, that the power, in such a case, followed by a limitation of the fee, must be absorbed by the fee, which includes every power. This seems to be the good sense and reason of the thing, for the separate existence of the power appears to be incompatible with the ownership of the fee. But the weight of authority is decidedly in favour of the conclusion that the power is not extinguished, and may well subsist with, and qualify the fee. I apprehend that, by the N. Y. Revised Statutes, the power is extinguished in such a case; for it is

a Sugden on Powers, 62-64.

b 1 Vent. 228. Sugden, p. 66, 67. The power may be extinguished by a release under the N. Y. Revised Statutes, vol. i. 733. sec. 89. but the capacity to extinguish by fine or feoffment, has ceased with those conveyances.

c7 Vesey's Rep. 567.

d Sir Edward Clere's case, 6 Cò. 17. h.

sey's Rep. 567. Lord Eldon, on appeal, in

Peacock v. Monk, 2 Vethe case of Maundrell v.

Maundrell, Sugden on Powers, p. 79-93. Sir Edward Sugden discusses the question upon the conflicting authorities with his usual acuteness. Vide supra, p. 50, 51.

e Vol. i. 733. sec. 83. 85.