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. The rule is more inflexible where a specific mode of exercising the power is *320 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. The New-York Revised Statutesc 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 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 lim-ited 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.d

■ 3 Leon. 71. 4 ibid. 41. S. C. Liefe v. Saltingstone, 1 Mod. 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, 370.

Jackson v. Robins, 16 Johns. Rep. 588. In the case of Flintham, 11 Serg

f Raole, 16. See, also, infra, p. 535, 536.

b Sugden on Powers, 96-101.

• Vol. i. 732, sec. 81, 82. 84.

New-York Revised Statutes, vol. i. 732, sec. 85.

(2.) Devise to executors.

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., 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 *321 Statutes have interfered with these distinctions, though they seem not to have settled them in the clearest manner. They declare," 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

Year Book, 9 Hen. VI., 13, b. 24, b.

'Litt. 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. Peck v. HenderBon, 7 Yerger, 18.

• Ferebee v. Proctor, 2 Dev. & Battle, 439. S. C. Dev. & Battle's Eq. Cas. 496. 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 devises land to be sold by his executors, an interest passes. Sugden on Powers, 104-108. Harg. Co. Litt. 113, a. note, 146. A devise that executors or others may sell is always a naked power. 1 Chance on Powers, 52. But it is understood that a person may by a single instrument be invested with a power coupled with an interest as to one estate, and a naked power as to another estate in the same land. Bloomer v. Waldron, 3 Hill's Rep. 361. 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. The general doctrine applicable to the subject is, that trustees are to be presumed to have been clothed with an estate commensurate with the charges or duties imposed on them, and were not by mere construction to take a greater estate than the nature of the trust requires. Lord Hardwicke, in Gibson v. Mountfort, 1 Vesey, 491. Heath, J., in Doe v. Barthrop, 5 Taunton, 385.

New-York Revised Statutes, vol. i. 729, sec. 56.

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 construc

tion 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 a fee. If the trust be valid as a power, then, in every such case," the lands to which the trust relates remain in, or descend *322 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, "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

• Keene v. Deardon, 8 East's Rep. 248. In Ohio, a power given to executors to sell land, when they deem it can be done to good advantage, and to distribute the proceeds, is a power with an interest, and entitles them to the possession of the land, though the fee in the mean time descends to the heir. Dabney v. Manning, 3 Ohio Rep. 321.

b New-York Revised Statutes, vol. i. 729, sec. 59.

• Ibid. vol. i. 729, sec. 55.

a Ibid. vol. i. 729, sec. 60. In sales of lands by executors, under a power in the will for the payment of debts and legacies, the sales must be conducted under the same regulations prescribed in the case of sales by order of any surrogate. Ibid. vol. ii. 109, sec. 56.

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 the executors to sell lands to pay debts or legacies, is not within the liberal 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."

(3.) Powers under the statute of uses.

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 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 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 *323 when the lessee is not then designated, as is the case in a general power. It is different in conveyances

By the New-Jersey Revised Bills, as reported by the reviser in 1834, it was proposed, that a naked authority by will to executors to sell land, should give them the same interest and power over the estate for the purposes of the sale, and the same remedy by entry and action, as if the lands had been devised to them to be sold. This provision does not appear to have been enacted, but a provision in the same words exists in Pennsylvania. Purdon's Dig. 392.

Goodtitle v. Pettoe, Fitzg. 299.

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 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 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 intention 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 appoint, 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 *324 in the deed creating the power; and the estate, valid by means of a power, would have been so

■ Gilbert on Uses, by Sugden, 90, 91. Sugden on Powers, 191.

b 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 Co. Litt. 3. 5. lib. 3. Sugden on Powers, 130, note. • Gilbert on Uses, 127. Sugden on Powers, 135.