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point, he cannot appoint any greater interest than that conveyed to A. 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;" 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. 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. Mar tin,' and settled, upon great consideration, that the estates so limited were vested, subject, nevertheless, to be devested by the execution of the powers. The plain reason is that there is no estate limited under the power until the appointnent be made. Lord Hardwicke had decided in the same way, on the same question, in Cunningham v. Moody, and the doctrine is now definitively settled, and it applies equally to personal estates.'
default of English
(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
a Gilbert on Uses, 127. Sugden on Powers, 135.
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.
By the New York Revised Statutes, though a power may bevested in any person capable in law of holding, it cannot be exercised by any person not capable of aliening Jands, 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 tesfator, 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. There are, however, some material qualifications to the rule. The statute of 21 Hen. VIII. c. 4. very early cor
a Sugden, ub. sup. 148–155. I have deemed it sufficient on this particular subject, to refer to Sir Edward Sugden's very authoritative work, for principles that are clearly settled, without overloading the pages with references to the adjudged cases. Mr. Sugden cites upwards of fifty cases to the point of the general competency of a feme covert, and the limited capacity of an infant, to execute a power. He says he has anxiously consulted the report of every case referred to in his volume. I have examined all his leading authorities, and have found them as he stated them. The work is admirably digested, and distinguished for perspicuity, accuracy, and plain good sense.
6 Vol. i. 735. sec. 109, 110, 111. Ibid. p. 737. sec. 130.
c Co. Litt. 112. b. 113. a. 181. b. Sheppard's Touch. tit. Testament, p. 448. pl. 9. Bro. tit. Devise, pl. 31. Dyer, 177. Osgood v. Franklin, 2 Johns. Ch. Rep. 19.
rected 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 sucgessive revisions of the statute law of New-York. The provision would seem now to be abolished by the NewYork Revised Statutes, 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." 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. 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. The
a N. Y. Revised Statutes, vol. i. 735. sec. 106. 112.
6 If this be the construction of the revised statutes, then I am free to say, that the provision in the statute of Hen. VIII. has been very injudiciously discontinued.
& Sugden on Powers, 159.
d Blatch v. Wilder, 1 Alk. Rep. 420. Davoue v. Fanning, 2 Johns. Ch. Rep. 254. See also, 1 Yeates' Rep. 422.3 Ibid. 163. Mr. Sugden (Powers, p. 160—165.) mentions several ancient cases to the same effect. In South Carolina the executor's authority to sell, under such circumstances, is denied, and the course is, to apply to chancery to give validity to the sale. Drayton v. Drayton, 2 Des. saussure's Rep. 250. note. The N. Y. Revised Statutes, vol. i. 734. sec. 101. would seem to have changed the law on this subject, and to
power to sell cannot be executed by attorney when personaletust and confidence are implied, for discretion cannow be delegated. 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 ;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. Should the appointment 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 seisin, and the use to B. would be void at law, though! good in equity as a trust.
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 bis 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, 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
have made it conformable to the South Carolina practice, for it is declared, that where a power is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the Court of Chancery. This is unnecessarily requiring a resort to chancery in every case where the executor, or other donee of the power, is not expressly named.
a Combes' case, 9 Co. 75. b. Ingram v. Ingram, 2 Atk. Rep. 88. Cole y. Wade, 16 Vesey's Rep. 27.
6 How y. Whitfield, 1 Vent. 338, 339. The N. Y. Revised Statutes, vol. i. 735. sec. 104. declare, that every beneficial power shall pass to the assignees of the estate, and effects of the donee of the power, under an assignment in insolvent cases.
c Combes' case, 9 Co. 75. b.
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 seisia 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.' 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 devested, 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.
Every instrument executing a power should mention the estate or interest disposed of, and it is best to declare it to be
a By the N. Y. Revised Statutes, vol. i. 737. sec. 128. The period during which the absolute right of alienation is suspended, is to be computed, not from the date of the instrument in execution of the power, but from the time of the creation of the power.
b Fearne on Executory Devises, by Powell, note 347–388. Mr. Powell writes better in the instructive note here referred to, than in bis original “ Essay on the Learning of Powers ;" and which, from the want of proper divisions of the subject, and resting places for the student, and from the insertion of cumbersome cases at large, was always a very repulsive work, and provokingly tedious and obscure. I used, in my earlier days, to make short excursions into it, as into a kind of terra incognita, but I always returned with jaded spirits, and roused indignation.