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, and 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 connection with uses; and Mr. Sugden says, that modern settlements were introduced, and powers arose, after uses were established in equity, and before they were recognized 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 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 seized, 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.¹ 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.

(1.) Of the general 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 favor it is executed. Mr. Sugden, upon the authority of Sir Edward Clere’s case,² 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.³ The usual classification of powers is as follows: (1.) Powers appendant or appurtenant; and they enable the 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.⁴ (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.⁵

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. The general rule is, that a power shall not be exercised in derogation of a prior grant by the appointor. But this whole division 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 division of powers, into general powers, and particular powers⁶ and Mr. Humphrey⁷ 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 favor of any person whom the appointor chooses. (2.) Particular powers to be exercised in favor of specific objects. The suggestion has been essentially followed in the New York Revised Statutes,⁸ which have abolished the existing law of powers, and established new provisions for their creation, construction, and execution.⁹ 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 aliening such interest in the land. Powers, says the statute, are general of 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.¹⁰ It is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution.¹¹ 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. 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, entitled to the proceeds or benefit thereof; or when any person other than the grantee, is designated as entitled to any benefit from the disposition or charge authorized by the power.¹²

(2.) Of the creation of powers.

No formal set of words are 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.¹³ 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 exchanged.¹⁴ A devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee¹⁵ but where the estate is given for life only, the devisee takes only an estate for life, though a power of disposition, or to appoint the fee by deed or will, be annexed, unless there should be some manifest general intent of the testator, which would be defeated by adhering to this particular intent. Words of implication do not merge or destroy an express estate for life, unless it becomes absolutely necessary to uphold some manifest general intent.¹⁶ The rule is more inflexible where a specific mode of exercising the power is pointed out; but if the estate for life be given to let in estates to strangers, and no specific mode is required in the disposition of the inheritance, there, if the intervening estates do not take effect, the devisee takes the entire fee.¹⁷ The New York Revised Statutes¹⁸ have provided for this case by declaring, 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 right of creditors and purchasers, but subject to any future estates limited thereon, in the 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.¹⁹

The earlier cases established the distinction that a devise of land to executors to sell, passed the interest in it, but a devise that executors shall sell, or that the lands shall be sold by them, gave them but a power. This distinction was taken as early as the time of Henry VI.²⁰ and it received the sanction of Littleton, and Coke, and of the modern determinations.²¹ A devise of the land to be sold by the executors, confers a power, and does not give any interest.²² The New York Revised Statutes have interfered with these distinctions, though they have not settled them in the clearest manner. They declare,²³ 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.” If the construction of this section be, that a devise of the lands to executors to be sold, does not pass an interest without a special authority to receive the rents, then the estate does not, in any of the cases already mentioned, pass to the executors, and the devise is only a power simply collateral. The English rule is, that an estate may be conveyed to trustees to sell, with a provision that the rents and profits be, in the mean time, received by the party who would have been entitled if the deed had not been made, and yet the trustees will take the fee.²⁴ If the trust be valid as a power, then, in every such case, ²⁵ the lands to which the trust relates remain in, or descend to, the persons entitled, subject to the trust as a power.” The statute²⁶ authorizes “express trusts to be created to sell lands for the benefit of creditors, or for the benefit of legatees, or for the purpose of satisfying charges.” These are the very trusts or powers relative to executors which we are considering, and by the same statute,²⁷ “Every express trust, valid as such in its creation, except as therein otherwise provided, vests the whole estate in the trustees, subject to the execution of the trust.” The conclusion would seem to be, that, as a general rule, every express trust created by will to sell lands, carries the fee with it, but if the executors be not also empowered to receive the rents and profits, they take no estate, and the trust becomes a power without interest. This restriction of the general rule applies to the case of a “devise of lands to executors to be sold or mortgaged,” and the usual case of a direction in the will to executors to sell lands to pay debts or legacies, is not within the literal terms of the restriction; and it may be a question, whether it be one of the cases in which, according to the 60th section above mentioned, “the whole estate is in the trustees.”

Powers of appointment and revocation may be reserved in conveyances, under the statute of uses, as well as in conveyances at common law, but the deed of bargain and sale, or of covenant to stand seized, must be sustained by a sufficient consideration, according to the nature of the deed. In consequence of the necessity of a consideration, a general power to lease, at the discretion of the donee, cannot be valid, even in a bargain and sale, or covenant to stand seized, because a consideration must move from the lessee, or become a debt due from him at the time that the deed creating the power was executed, and this cannot take place when the lessee is not then designated, as is the case in a general power.²⁸ It is different in conveyances operating by way of transmutation of possession, as by fine or feoffment, because the feoffees become seized to uses, and are bound to execute them without reference to any consideration.²⁹

A power given by will to sell an estate, is a common law authority, and it may also operate under the statute of uses. Lands may be devised without the aid of the statute of uses, and, on the other hand, the statute may operate on uses created by will, provided a seizin is raised to feed the uses created by it, and the statute will, in most cases, transfer the possession to them.³⁰ The question has now become unimportant, and is matter of mere speculation, as Mr. Butler, and after him Mr. Sugden, equally admit. A devise to uses, without a seizin to serve the uses, is good; and if an estate be devised to A. for the benefit of B., the courts will execute the use in A. or B., as the testator’s intention shall clearly indicate, for the intention controls every such question.

The seizin must be co-extensive with the estate authorized to be created under the power, and, therefore, if a life estate be conveyed to A., to such uses as B. should appoint, he cannot appoint any greater interest than that conveyed to A.³¹ It is upon the same principle that no estate can be limited through the medium of a power which would not have been valid if inserted in the deed creating the power; and the estate valid by means of a power, would have been so if limited by way of use in the original deed. When the object of the power is to create a perpetuity, it is simply void;³² and when the power is void, or when no appointment is made under it, the estates limited in the instrument creating the power, take effect in the same manner as if the power had not been inserted.³³ While upon this subject, it is proper to notice the question which has been greatly discussed in the English courts, whether the estates limited in default of appointment, are to be considered as vested or contingent during the continuance of the power. The question was most learnedly discussed in three successive arguments in the K. B., in Doe v. Martin,³⁴ and settled, upon great consideration, that the estates so limited were vested, subject, nevertheless, to be divested by the execution of the powers. The plain reason is, that there is no estate limited under the power until the appointment be made. Lord Hardwicke had decided in the same way, on the same question, in Cunningham v. Moody,³⁵ and the doctrine is now definitively settled, and it applies equally to personal estates.³⁶

(3.) Of the execution of powers.

Every person capable of disposing of an estate actually vested in himself, may exercise a power, or direct a conveyance of the land. The rule goes further, and even allows an infant to execute a power simply collateral, and that only; and a feme covert may execute any kind of power, whether simply collateral, appendant, or in gross, and it is immaterial whether it was given to her while sole or married. The concurrence of the husband is in no case necessary.³⁷

By the New York Revised Statutes,³⁸ though a power may be vested in any person capable in law of holding, it cannot be exercised by any person not capable of aliening lands, except in the case of a married woman. She may execute a power during her marriage, by grant or devise, according to the power, without the concurrence of her husband, but she cannot exercise it during her infancy. If she be entitled to an estate in fee, she may be authorized by a power to dispose of it during her marriage, and create any estate which she might create if unmarried.

A naked authority given to several persons does not survive; and it was a rule of the common law, that if the testator, by his will, directed his executors by name to sell, and one of them died, the others could not sell, because the words of the testator could not be satisfied.³⁹ There are, however, some material qualifications to the rule. The statute of 21 Hen. VIII. c. 4. very early corrected some of the inconveniences of the rule, by declaring that the executors who accepted their trust might sell, though one or more of the executors should refuse to act. This statute has probably been generally adopted in this country, and it has been repeatedly re-enacted in the successive revisions of the statute law of New York. The provision would seem now to be abolished by the New York Revised Statutes,⁴⁰ which, after declaring that a power may be granted by a devise in a will, adds, that “where a power is vested in several persons, all must unite in its execution; though if, previous to such execution, one or more of them should die, the power may be executed by the survivors, or survivor.⁴¹ The result of the English cases is, that where a power is given to two or more persons by their proper names, and they are not executors, or is given to them nominatim as executors, the power does not survive without express words; but where it is given to several persons by their name of trust as a plural body, as to my executors or trustees, it will survive so long as the plural number remains.⁴² If the will directs the estate to be sold without naming a donee of the power, it naturally, and by implication, devolves upon the executors, provided they are charged with the distribution of the fund.⁴³ The power to sell cannot be executed by attorney when personal trust and confidence are implied, for discretion cannot be delegated.⁴⁴ But if the power be given to the donee, and his assigns, it will pass by assignment, if the power be annexed to an interest in the donee;⁴⁵ and if it be limited to such uses as A. shall appoint, it is equivalent to ownership in fee, and, in such cases, the owner may limit it to such uses as another shall appoint.⁴⁶ Should the appoint ment be to A., to the use of B., the statute would only execute the first use, and it would vest in A. under the original seizin, and the use to B. would be void at law, though good in equity as a trust.⁴⁷

The person who executes a power, whether it be reserved to the owner of the estate, or to a stranger, must pursue the authority reserved; and the appointee, so far as he comes in under the power, derives his title, not from the person exercising the power, but from the instrument by which the power of appointment was created. It has been well observed in the New York Revised Statutes,⁴⁸ that no person can take under an appointment, who would not have been capable of taking under the instrument by which the power was granted. Every instrument of execution operates as a direction of the use, and the appointee takes in the same manner as if the use had been limited to him in the original settlement creating the power. The use declared by the appointment under the power, is fed (to use the mysterious language of the conveyancers) by the seizin of the trustees to uses, in the original conveyance. The consequence of this principle is, that the uses declared in the execution of the power, must be such as would have been good if limited in the original deed; and if they would have been void as being too remote, or tending to a perpetuity in the one case, they will be equally void in the other.⁴⁹ A general power of appointment enables the party to appoint the estate to any persons he may think proper, who may have a capacity to take, but a special power restrains him to the specified objects; and they equally suspend the alienation of the estate. Whenever the estate is executed in the appointee, the uses before vested are divested, and give place to the new uses under the character of shifting and springing uses; and no disposition can be made by the persons who possess the legal estate, during the time that the power hangs over it, which will not be subject to its operation.⁵⁰

Every instrument executing a power should mention the estate or interest disposed of, and it is best to declare it to be made in exercise of the power, and the formalities required in the execution of the power must appear on the face of the instrument. Every well-drawn deed of appointment, says Mr. Sugden, embraces these points.⁵¹ The deed for executing the power consists of two parts, an execution of the power, and a conveyance of the estate. If a person has a power, and an estate limited in default of appointment, he usually first exercises the power, and then conveys his interest. Mr. Booth said, that he never saw a deed settled with good advice, but which contained an appointment by virtue of the power, and a conveyance of the estate remaining in the vendor, or his trustee, in default of appointment.⁵² And yet all this is useless machinery, for if the power be subsisting and valid, the execution of it would, per se, divest the estate. In every settlement taking effect through the medism of uses, where a special power is reserved to sell or devise, the deed operates, in the first place, as a revocation of the old uses, and the legal estate is restored to the original trustees to uses, freed and discharged from the uses previously declared. It is, then, understood to remain in the trustees for an instant, ready to feed the new uses limited under the power. The donee of the power wants no estate to appoint or transfer previous to the time that he exercises the power. Whether he be the trustee of the legal estate, or a third person be the trustee, is immaterial. An estate arises in the trustee on the revocation of the former uses, by means of the magical transmutation of possession which the statute of uses produces.

To explain this more fully, a conveyance to A. in fee passes the legal seizin, and if the use be declared in his favor he continues seized. But the use may be declared partly in favor of A., and partly in favor of B., or it may be varied in any other manner. In every such case the use is executed by the statute, unless it be repugnant to some use previously declared, and amounts to a use upon a use. If there be a vacancy in the ownership under the declaration of uses, as in a conveyance by A. to B. in fee, to the use of the heirs of A., the use results to A. for life, and is executed by the statute. In short, to render the title complete, there must be an estate of freehold or inheritance to supply the seizin to uses, and there must be a person capable of taking the use, and the use must be declared and warranted by the rules of law.⁵³ Should a fine be levied without a deed to declare the uses, it would destroy all the powers, but a deed to declare, or lead uses, controls the fine. It is a part of the same estate, and the fine becomes subservient to it.⁵⁴

When the mode in which a power is to be executed, is not defined, it may be executed by deed or will, or simply by writing. It is nothing more than declaring the use upon an estate already legally created to serve it, and whatever instrument be adopted, it operates as a declaration of use, or, in other words, of an appointment of the estate under the power. It is the plain and settled rule, that the conditions annexed to the exercise of the power must be strictly complied with, however unessential they might have been, if no such precise directions had been given. They are incapable of admitting any equivalent or substitution, for the person who creates the power has the undoubted right to create what checks he pleases to impose, to guard against a tendency to abuse. The courts have been uniformly and severely exact on this point.⁵⁵ If a deed be expressly required, the power cannot be executed by a will;⁵⁶ and if the power is to be executed by will, it cannot be executed by any act to take effect in the lifetime of the donee of the power.⁵⁷ When there are several modes of executing a power, and no directions are given, the donee may select his mode, and the courts seldom require any formalities in the execution of the power, beyond those required by the strict letter of the power. It may, in such a case, be executed by a will without the solemnities required by the statute of frauds.⁵⁸

The excessive and scrupulous strictness required as to the forms prescribed in the execution of powers, particularly with respect to the attestation of instruments of appointment and revocation, called for relief by act of Parliament, and the statute of 54 Geo. III. in 1814, was passed, merely as to retrospective cases, and it left the rule for the future as uncertain as ever. It was a miserably lame and timid provision. The New York Revised Statutes have gone much bolder lengths, and have made some very valuable amendments to the existing law respecting the execution of powers; and while many of the provisions are merely declaratory of the existing law, there are others which have rescued this part of the law from much obscurity and uncertainty. No power can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner; and every instrument, except a will, in execution of a power, and although the power may be a power of revocation only, shall be deemed a conveyance within, and subject to the provisions of that part of the revised statutes relative to the proof and recording of conveyances.⁶⁹ The rule of law, before the statute, was the same on this point, and the same technical expressions are requisite, and the same construction is put upon deeds of appointment, as in feoffments and gifts at common law.⁷⁰ So, if the power to dispose of lands be confined to a disposition by devise or will, the instrument of execution, under the New York Revised Statutes, must be a will duly executed according to the provisions relative to the execution and proof of wills of real property. And where a power is confined to a disposition by grant, it cannot be executed by will, although the disposition be not intended to take effect until after the death of the party executing the power. Again; where the grantor of the power shall have directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules previously prescribed in the article.⁷¹ And if the grantor shall have directed any formalities to be observed in the execution of the power, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power.⁶² 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, shall be observed, subject to the power of the Court of Chancery to supply defective executions. When the consent of a third person to the execution of a power is requisite, the consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon. In the first case, the instrument of execution, in the second, the certificate, shall be signed by the party whose consent is required, and be duly proved or acknowledged when the instrument conveys an estate, or creates a charge, which the grantee of the power would have no right to convey or create, unless by virtue of the power, it shall be deemed a valid execution of the power, although the power be not recited or referred to. Lands embraced in a power to devise, shall pass by a will purporting to convey all the real estate of the testator, unless a contrary intent appears expressly, or by necessary implication. ⁶³

It is the general rule, that a power cannot be exercised before the time in which it was the intention of the grantor of the power that it should be exercised. This was a principle assumed by Lord Coke;⁶⁴ and in Cox v. Day,⁶⁵ it was adjudged, that where a power of leasing was given to B., to be exercised after the death of A., it could not be exercised during the life of A. Another rule is, that powers of revocation and appointment need not be executed to the full extent of them at once; they may be exercised at different times, over different parts of the estate, or over the whole estate, if not to the whole extent of the power.⁶⁶ Nor does an appointment by way of mortgage, exhaust a power of revocation, for it is only a revocation pro tanto.⁶⁷

The power may be executed without reciting it, or even referring to it, provided the act shows that the donee had in view the subject of the power.⁶⁸ In the case of wills, it has been repeatedly declared, and is now the settled rule, that in respect to the execution of a power, there must be a reference to the subject of it, or to the power itself, unless it be in a case in which the will would be inoperative without the aid of the power, and the intention to execute the power became clear and manifest. The general rule of construction, both as to deeds and wills, is, that if there be an interest, and a power, existing together in the same person, over the same subject, and an act be done without a particular reference to the power, it will be applied to the interest, and not to the power. If there be any legal interest on which the deed can attach, it will not execute a power. If an act will work two ways, the one by an interest, and the other by a power, and the act be indifferent, the law will attribute it to the interest, and not to the authority, for factio cedit ueritati.⁶⁹ In Sloane v. Cadogan,⁷⁰ it was declared, by the Master of the Rolls, after a full discussion, to be settled, that a general disposition by will would not include property over which the party had only a power, unless an intention to execute the power could be inferred. A will need not contain express evidence of an intention to execute a power. If the will be made without any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power. The intent must be so clear that no other reasonable intent can be imputed to the will.⁷¹ In construing the instrument, in cases where the party has a power, and also an interest, the intention is the great object of inquiry, and the instrument is construed to be either an appointment or a release, that is, either as an appointment of a use in execution of a power, or a conveyance of the interest, as will best effect the predominant intention of the party.⁷² It may, indeed, operate as an appointment, and also as a conveyance, if it be so intended, though the usual practice is to keep these two purposes clearly distinct.⁷³

In a deed executing a power, a power of revocation and new appointment may be reserved, though the deed creating the power does not authorize it, and such powers may be reserved toties quoties. A power to be executed by will, is always revocable by a subsequent will, for it is in the nature of a will to be ambulatory until the testator’s death.⁷⁴ But though the original power expressly authorizes the donee to appoint, and revoke his appointment, from time to time, yet, if the power be executed by deed, it is held that there must be a power of revocation reserved in the deed, or the appointment cannot be revoked. On every execution of the power a new power of revocation must be reserved, and a mere power of revocation in a deed executing the power, will not authorize a limitation of new uses.⁷⁵ The rule arose from an anxiety to restrain the reservation of such powers of revocation, and, perhaps, from a desire to assimilate powers to conditions at common law; and we are disposed to agree with Mr. Sugden, that there is no good reason why a general power of revocation in the original deed creating the power, should not embrace all future execution, since it is allowed to be affected repeatedly by new powers of revocation, and since a power of revocation in the original settlement is tantamount to a power, not only of revocation, but of limitation of new uses, for he that has a power to revoke has a power to limit.⁷⁶ The New York Revised Statutes⁷⁷ have given due stability to powers that are beneficial, or in trust, by declaring that they are irrevocable, unless an authority to revoke them be granted or reserved in the instrument creating the power. It is further declared,⁷⁸ 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 tho rights of creditors and purchasers are concerned. Under the check of this wise provision preventing these latent and potent capacities from being made instruments of fraud, the statute very safely allows⁷⁹ the grantor, in any conveyance, to reserve to himself any power, beneficial or in trust, which he might lawfully grant to another.

An estate created by the execution of a power, takes effect in the same manner as if it had been created by the deed which raised the power. The party who takes under the execution of the power, takes under the authority, and under the grantor of the power, whether it applies to real or personal property, in like manner as if the power, and the instrument executing the power, had been incorporated in one instrument.⁸⁰ The principle that the appointee takes under the original deed, was carried to the utmost extent in Roach v. Wadharn,⁸¹ a case which strikingly illustrates the whole of this doctrine, and the singularly subtle and artificial mechanism of the English settlement law. An estate was conveyed to a trustee in fee to such uses as A. should by deed appoint, and in default of appointment to A. in fee. There was a fee-farm rent reserved in the conveyance to the trustee, and A. covenanted to pay it. It was held, that A. took a vested fee, liable to be divested by the execution of his power of appointment. He sold and conveyed the estate by lease and release, and, also, in the same conveyance, directed and appointed the estate and use to the purchaser. It was further held, that under this conveyance, with a double aspect, the purchaser took the estate, by the appointment of A., and not by the conveyance from A., and, consequently, the purchaser was not subject to the covenant for the payment of rent, though it run with the land, for he took as if the original conveyance had been made to himself, instead of being made to the trustee to uses. The rule that the estate, under the power, takes effect under the deed creating the power, applies only to certain purposes, and as between the parties, and it will not be permitted to impair the intervening rights of strangers to the power. The deed under the power must be recorded, when deeds. in general are required to be recorded, equally with any other deed.⁸² It does not take effect, by relation, from the date of the power, so as to interfere with intervening rights.⁸³ The ancient doctrine was, that a naked power could not be barred or extinguished by disseizin, fine, or feoffment.⁸⁴ It was held, that if a power to sell lands be given to executors, and the heir enters and enfeoffs B. who dies seized, yet that the executors might sell, and the vendee would be in under the will, which was paramount to the descent, and that the power was not tolled by the descent.⁸⁵ A dormant power, with such mysterious energy founded on the doctrine of relation, would operate too mischievously to be endured, and the doctrine to that extent has justly been questioned, and it would not now be permitted to destroy intervening rights which had been created for a valuable consideration, and had duly attached upon the land without notice of the power.⁸⁶

The beneficial interest which a person takes under the execution of a power, forms part of his estate, and is subject to his debts, like the rest of his property. The appointment cannot be made so as to protect the property from the debts of the appointee.⁸⁷ A court of chancery goes further, and 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 claims of the appointee. But 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 it power, it will not supply the total want of any execution of it. The Lord Keeper, as early as the case of Lassells v. Cornwallis,⁸⁸ declared, that where a person had a power to charge an estate for such uses as e should think fit, and he had by deed appointed it for the benefit of his children, the direction, should be changed, and the fund applied to the payment of his debts. But if he wholly omitted to appoint, the court had not gone so far as to do it for him, though he thought it would be very reasonable, and agreeable to equity, when creditors were concerned. The same doctrine was afterwards repeatedly held by Lord Hardwicke.⁸⁹ Property over which such a dominion was exercised by virtue of a general power, was considered as absolute property, so far as to be liable for debts; but if it be a particular power to appoint for third persons designated in the power, and not for the benefit of the donee of the power, the conclusion would be different. Sir William Grant, in Holmes v. Cogshill,⁹⁰ and Lord Erskine, afterwards, in the same case, on appeal,⁹¹ were very clear and explicit in laying down the established distinction, that equity would aid the defective execution of a power, and refuse to interfere where there was no execution of it; while, at the same time, they were free to admit, that there was no good reason or justice in the distinction, and that it was raised and sustained with some violation of principle.

If the interest was to be vested in the appointor by an act to be done by himself, it ought, perhaps, to be considered his property for the benefit of his creditors; and yet the above distinction had been settled and maintained from 1668 down to that time. The creditors have no right, according to the established doctrine, to have the money raised out of the estate of a third person when the power was not executed, and a court of equity will not, by its own act, charge an estate, and supply the want of the execution of a power. This would be to destroy all distinction between a power and absolute property, and though the money which the party possessing a power has a right to raise, may be considered his property, yet the party to be affected by the execution of the power, can only be charged in the manner, and to the extent specified at the creation of the power. The courts only assume to direct the application of the fund raised by virtue of the power, and to hold it to be assets for the payment of debts. Lord Erskine intimated, that the difficulties which had embarrassed the subject were proper for legislative interference, and that it might as well be declared, that where a power was given to dispose of property by a certain act, if the party died without doing the act, the property should still be assets.

The New York Revised Statutes have wisely cleared away these difficulties, and given due and adequate relief to the creditor, by rendering the execution of the power imperative in certain cases, and making the jurisdiction in equity co-extensive with the requisite relief. Thus, every special and beneficial power is made liable in equity to the claims of creditors, in the same manner as other interests that cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled.⁹² It is further declared, that every trust power (being a power in which other persons than the grantee of the power, are entitled to the benefits resulting from the execution of it) becomes an imperative duty on the grantee, unless its execution be made to depend expressly on the will of the grantee, and the performance of it may be compelled in equity for the benefit of the parties interested. Nor does it cease to be imperative, though the grantee has a right to select any, and exclude others of the persons designated as the objects of the trust.⁹³ And where a disposition under a power is directed to be made to, or among, or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion. But if the manner or proportion of the distribution be left to the trustees, they may allot the whole to any one or more of the persons, in exclusion of the others.⁹⁴ If the trustee of a power, with the right of selection, dies leaving the power unexecuted, or if the execution of a power in trust be defective, in whole or in part, its execution is to be decreed in equity for the benefit equally of all the persons designated as objects of the trust. The execution, in whole or in part, of any trust power, may also be decreed in equity for the benefit of creditors or assignees (if the interest was assignable) of any person entitled, as one of the objects of the trust, to compel its execution.⁹⁵ So, purchasers for a valuable consideration, claiming under a defective execution of a power, are entitled to the same relief in equity as purchasers in any other case. It is likewise added, for greater caution, that instruments in execution of a power are equally affected by fraud, as conveyances by owners and trustees. Every power is also made a lien or charge upon the lands which it embraces as against creditors and purchasers in good faith, and without notice, of or from any person having an estate in such lands, from the time the instrument containing the power is recorded; and as against all other persons from the time the instrument takes effect.⁹⁶

Some part of these statute provisions would seem to have changed the English equity doctrine of illusory appointments, where there was an allotment of a nominal, and not of a substantial interest. They have at least rescued the law from a good deal of uncertainty on the subject, and relieved the courts of equity from that difficulty and distress of which the Master of the Rolls, in Vanderzee v. Aclom,⁹⁷ and Lord Eldon, in Butcher v. Butcher,⁹⁸ have so loudly complained, when they endeavored to ascertain the proportion of inequality that would amount to an illusory appointment. The rule of law is, to require some allotment, however small, to each person, where the power was given to appoint to and among several persons; but the rule in equity requires a real and substantial portion to each, and a mere nominal allotment to one is deemed illusory and fraudulent. Where the distribution is left to discretion, without any prescribed rule, as to such of the children as the trustee should think proper, he may appoint to one only.⁹⁹ But if the words be, amongst the children as he should think proper, each must have a share, and the doctrine of illusory appointments applies.¹⁰⁰ The distribution under the power of appointment, by the New York statute, must be equal in the one case, and in the other the trustee has an entire discretion in the selection of the objects, as well as to the amount of the shares to be distributed. In respect to the imperative duty of the grantee of a trust power to execute it, the New York statute has only declared the antecedent law. Though it be an immutable rule, that the non-execution of a naked power will never be aided,¹⁰¹ 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.¹⁰² 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 favor of creditors, and bona fide purchasers, who rest their claim upon a valuable consideration, and in favor 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.¹⁰³ 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 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 favor of the testator’s intention.¹⁰⁴ 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.¹⁰⁵ 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.¹⁰⁶ 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.¹⁰⁷ 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.¹⁰⁸ 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.¹⁰⁹ But, on the other hand, a power to appoint to children, will not authorize an appointment to grandchildren. This is the settled rule, and yet it naturally strikes the mind as a very strict and harsh construction.¹¹⁰

We have already seen,¹¹¹ 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 distinguishable, as in the case of a power to lease for twenty-one years, and the lease be made for twenty-six years.¹¹²

(3.) Of the extinguishment of powers.

There are some subtle distinctions in the English law, relative 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 suspend 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.¹¹³ Nor can the donee of a power simply collateral, suspend or extinguish it by any act of his own.¹¹⁴ 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.¹¹⁵ 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. Sugden¹¹⁶ but the opinion of Lord Mansfield, in Ren v. Bulkeley,¹¹⁷ 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?¹¹⁸ 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 convey.¹¹⁹ 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.¹²⁰

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,¹²¹ 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 favor of the conclusion that the power is not extinguished, and may well subsist with, and qualify the fee.¹²² I apprehend that, by the N.Y. Revised Statutes,¹²³ the power is extinguished in such a case; for it is declared, that in all cases where an absolute power of disposition is given, and no remainder is limited on the estate of the grantee of the power, he takes an absolute fee; and every power of disposition is deemed absolute when the grantee is enabled to dispose of the entire fee for his own benefit. This is going, and, I think, very wisely, beyond the existing English rule; for the statute here applies to every case of an absolute power of disposition, without any limitation in default of appointment; whereas the English law is, that though such a power in a will, without any prior limited interest, would give a fee, yet, in conveyances, such a limitation would confer a power merely, and not give an estate in fee.¹²⁴ The argument is entirely with the New York amendment, and, “in reason and good sense, as the revisers said when the bill was proposed, there is no distinction between the absolute power of disposition, and the absolute ownership. The distinction is dangerous to the rights of creditors and purchasers, and it is an affront to common sense to say, that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure.”

I have now finished a laborious (though, I fear, much too inadequate) examination of the doctrine of uses, trusts, and powers. They are the foundation of those voluminous settlements to which we, in this country, are comparatively strangers, and which, in practice, run very much into details, embarrassing by the variety and complexity of their provisions. The groundwork of the operation of a family settlement, is a conveyance of the fee to a grantee or releasee to uses, who is usually a stranger, and whose functions and interest are generally merely nominal. Then follow the various modified interests in the shape of future uses, which constitute the essential part of the settlement.

They are usually limited to the father or husband for life, then to the wile for life, then to the eldest and other sons in succession in tail, with remainder to the daughters, and, on failure of issue, to the right heirs of the settlor. The estate is subject to a variety of charges for family purposes, and acts of ownership become necessary in relation to the estate, and to the objects of the settlement. This requires the introduction of powers of leasing, selling, exchanging, and charging the lands, and with the reservation of a power to alter and modify the dispositions in the settlement, as exigencies may require. It is done by a general power of appointment in the first instance, or by adding to the limitations a power of revocation and new appointment. Powers are the main spring of this machinery.¹²⁵

The doctrine of settlements has thus become, in England, an abstruse science, which is, in a great degree, monopolized by a select body of conveyancers, who, by means of their technical and verbose provisions, reaching to distant contingencies, have rendered themselves almost inaccessible to the skill and curiosity of the profession at large. Some of the distinguished property lawyers have acknowledged, that the law of entails, in its present mitigated, state, and great comparative simplicity, was even preferable to these executory limitations upon estates in fee. Settlements, with their shifting and springing uses, “obeying, at a remote period, the original impulse, and varying their phases with the change of persons and circumstances,” and, with the magic wand of powers, have proved to be very complicated contrivances, and sometimes, from the want of due skill in the artist, they have become potent engines of mischief planted in the heart of great landed estates. These domestic codes of legislation are usually applied to estates, which necessarily require, under the English law of descents, very extended and complex arrangements, and which can well bear the weight of them. They seem to be indispensable, in opulent communities, to the convenient and safe distribution of large masses of property, and to the discreet discharge of the various duties flowing from the domestic ties. The evils are, probably, after all, vastly exaggerated by the zeal and philippics of the English political and legal reformers.¹²⁶

The revised statutes of New York have made great alterations in the law, and some valuable improvements, which we have already noticed under the articles of estates in expectancy, uses, trusts and powers; and, I presume, I need not apologize to the American student for attracting his attention so frequently to the statute law of a particular state. The revision contains the most extensive innovation, which has hitherto been the consequence of any single legislative effort upon the common law of the land; and it will deserve and receive the attention of lawyers and statesmen throughout the Union. There is much in the work to recommend it, and there is much to excite apprehension, on account of the depth to which the hand of reform has penetrated, in pursuit of latent and speculative grievances. It ought never to be forgotten, that the great body of the people in every country, in their business concerns, are governed more by usages than by positive law. The learning concerning real property, which we have hitherto been considering, appears likewise to be too abstract, and too complicated, to admit, with entire safety, of the compression which has been attempted, by a brief, pithy, sententious style of composition. There is a peculiar and inherent difficulty in the application of the new and dazzling theory of codification to such intricate doctrines, which he wrapped up in principles and refinements remote from the ordinary speculations of mankind. Brevity becomes obscurity, and a good deal of circumlocution has heretofore been indulged in all legislative productions; and reservations, provisoes and exceptions, have been carefully inserted, in order that the meaning of the lawgiver may be generally, and easily, and perfectly understood. This has been the uniform legislative practice, in England, and in this country, from the date of Magna Carta down to this day. The intelligence of the great body of the legislature cannot well be brought to bear upon a dense mass of general propositions, in all their ties, relations, and dependencies, or be made to comprehend them; and the legislation by codes becomes essentially the legislation of a single individual. When the revisers proposed to abolish “all expectant estates,” except such as are enumerated and defined; and “uses and trusts,” except such as are specially authorized and modified, and “powers as they now exist,” and to substitute anothersystem in their stead, they undoubtedly assumed a task of vast and perilous magnitude. In the discharge of their duty they have displayed great industry, intelligence and ability; and it will not materially impair the credit to which they are entitled for the execution of the work, though it may affect the wisdom of the scheme itself, if some valuable matter should have been omitted, and a good deal of uncertainty and complexity be discovered to exist, and to call hereafter for the repeated exercise of judicial interpretation, and, perhaps, the assumption of judicial legislation. No system of law can be rendered free from such imperfections, and the extent of them will necessarily be enlarged, and the danger greatly increased, when there have been entire and radical innovations made upon the settled modifications of property, disturbing to their very foundations the usages and analogies of existing institutions.