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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 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.b
(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. 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.d A devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee ;e 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,
a N. Y. Revised Statutes, vol. i. 732. sec. 79. b Ibid. 794. sec. 94, 95.
c Lord Mansfield, Doug. Rep. 293. Lord Ellenborough, 3 East's Rep. 441. Jackson v. Veeder, 11 Johns. Rep. 169.
d Sugden on Powers, 96.
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. 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 interve. ning estates do not take effect, the devisee takes the entire fee. The New York Revised Statutes 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, sball 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 Icreditors 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.
The earlier cases established the distinction that a devise of laad to executors to sell, passed the interest in it, but a denise 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., and it received the sanction of Littleton, and Coke, and of the modern determinations. A devise of the land to be sold by the executors, confers a power, and does not give any interest. The New York Revised Statutes have interfered with these distinctions, though they have not settled them in the clearest manner. They declared 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,
a 3 Leon. 71. 4 Leon. 41. 8. C. Liefe v. Saltingstone, 1 Nod. Rep. 189. Doe v. Thonby, 10 East's Rep. 438. Tomlinson v. Dighton, 1 Salk. Rep. 239. Crossling v. Crossling, 2 Cox, 396. Reid v. Shergold, 10 Vesey's Rep. 370. Jackson v. Robins, 16 Johns. Rep. 588. In the case of Flintham, 11 Serg. & Rawle, 16.
b Sugden on Powers, 96—101.
a Year Book, 9 Hen. VI. 13. b. 24. b. 6 Lilt. sec. 169. Co. Litt. 113, a. 181. b. Honell v. Barnes, Cro: C. 382. Yates v. Compton, 2 P. Wms. 308. Bergen v. Bennett, 1 Caines' Cases in Error, 16. Jackson v. Schauber, 7 Cowen's Rep. 187.
© This is the opinion of Sir Edward Sugden, and I think it is, upon the whole, the better opinion; but Mr. Hargrave thought differently, and he refers to Lord Coke in support of the position, that if one de vises land to be sold by his executors, an interest passes. (Sugden on Powers, 104-108. Harg. Co. Litt. 113. a. note 146.) The distinctions on this subject have the appearance of too curious and overstrained a refinement, and Mr. Hargrave pushed his opinion to the extent of holding, that a devise that executors should sell, and a devise of lands to be sold by executors, equally invested them with a fee.
a N. 9. Revised Statutes, vol. i. 729. sec. 56.
and yet the trustees will take the fee. If the trust be valid as a power, then, in every such case,b " the lands to whick the trust relates remain in, or descend to, the persons entitled, subject to the trust as a power." The statute 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,d “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 sonveyances, 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 seised, 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
a Keene v. Deardon, 8 East's Rep. 248. 6 N. Y. Revised Statutes, vol. i. 729. sec. 59. c Ibid. sec. 55. d lbid. sec. 60.
stand seised, 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. It is different in conveyances operating by way of transmutation of possession, as by fine or feoffment, because the feoffees become seised to uses, and are bound to execute them without reference to any consideration.
A power given by will to sell an estate, is a common law xuthority, and it may also operate under the statute of yees. 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 seisin is raised to feed the uses created by it, and the statute will, in most cases, transfer the possession to them. 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 seisin 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 inten... tion controls every such question.
The seisin 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 ap
a Goodtitle v. Pettoe, Fitzg. 299. b Gilbert on Uses, by Sugden, 90, 91. Sugden on Powers, 191.
c Sugden on Powers, 129–133. Mr. Butler was of opinion, that uses created by will were executed by the statute of wills, and not by the statute of uses. The question was, whether a devise to A. in fee, to the use of B. in fee, took effect by virtue of the statute of uses, or the statute of wills. The opinion of that great conveyancer, Mr. Booth, whose opinions are often cited as quite oracular, was vibratory on the question. Butler's note 231. to lib. 3. Co. Litt. 3. 5. Sugden on Powers, 130. note.