will does not refer to a power, or the subject of it, and if the words of the will may be satisfied without supposing an intention to execute the power, then, unless the intent to execute the power be clearly expressed, it is no execution of it."

In construing the instrument, in cases where the party

has a power, and also an interest, the intention is *336 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. 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.

(6.) Powers of revocation.

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

Bennett v. Aburrow, 8 Ves. 609. Bradish v. Gibbs, 3 Johns. Ch. Rep. 551. Blagge v. Miles, 1 Story Rep. 426. 445. In this last case the English authorities are largely cited and discussed. Walker v. Mackie, 4 Russell's Rep. 76. Lovell v. Knight, 3 Simons, 275. Lempriere v. Valpy, 5 Simons, 108. Davies v. Williams, 3 Neville & Manning, 821. Doe v. Roake, 2 Bing. Rep. 497. 6 Barnw. & Cress. 720. S. C. on error. In this last case, Lord Ch. J. Best reviewed all the cases, from the great leading authority of Sir Edward Clare's case, down to the time of the decision; and he deduces the above conclusions with irresistible force. The judgment of the C. B. was reversed in the K. B., on the question of fact whether the intention was manifest. The principles of law were equally recognised in each court. This last case was carried up by writ of error to the house of lords, and the judgment of the K. B. was affirmed, and the principles stated in the text settled. Roake v. Denn, 1 Dow, N. S. 437.

b Cox v. Chamberlain, 4 Ves. 631. Roach v. Wadham, 6 East's Rep. 289. Sugden, 301.

will; for it is in the nature of a will to be ambulatory until the testator's death. 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. 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 re- *337 vocation 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. The New-York Revised Statutes 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, that where the grantor any conveyance shall reserve to himself

in

Ward v. Lenthal, 1 Sid. Rep. 343. Hatcher v. Curtis, 2 Freem. Rep. 61. Hele v. Bond, Prec. in Ch. 474. Sugden on Powers, App. No. 2. S. C.

• Anon. 1 Ch. Cas. 241. Colston v. Gardner, 2 ibid. 46. It may be doubted whether the case of Ward v. Lenthal, mentioned in the preceding note, be sufficient to warrant the doctrine, that a power of revocation in a deed executing a power, will not authorize the limitation of new uses. d Vol. i. 735, sec. 108.

• Ibid. vol. i. 733, sec. 86.

for his own benefit an absolute power of revocation, he shall be deemed the absolute owner of the estate, so far as the 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 allows the grantor, in any conveyance, to reserve to himself any power, beneficial or in trust, which he might lawfully grant to another.

(7.) Relates back to the instrument.

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. The principle

that the appointee takes under the original deed, *338 was carried to the utmost extent *in Roach v.

Wadham, 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 appoint

b Litt. sec. 169. Co. Litt. 113, a. Cook v. Duckenfield, 2 Atk. Rep. 562 -567. Marlborough v. Godolphin, 2 Ves. 78. Middleton v. Crafts, 2 Atk. Rep. 661. Bradish v. Gibbs, 3 Johns. Ch. Rep. 550. Doolittle v. Lewis, 7 ibid. 45.

6 East's Rep. 289.

ment. 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 It does not take

recorded, equally with any other deed. effect, by relation, from the date of the power, so as to interfere with intervening rights. The ancient doctrine was, that a naked power could not be barred or extinguished by disseisin, fine, or feoffiment. It was held, that if a power to sell lands be given to executors,

and the heir enters and enfeoffs B., who dies #339 seised, 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. A dormant power, with such myste

- Scrafton v. Quincey, 2 Ves. 413.

Lord Hardwicke, in Marlborough v. Godolphin, 2 Ves. 78, and in Southby v. Stonehouse, ibid. 610.

1 Co. 110. 173. Edwards v. Slater, Hard. 410. Willis v. Sherra!, 1 Atk. Rep. 479. 15 Hen. VII., fo. 11. b, translated in App. No. 1. to Sugden on Powers.

a Jenk. Cent. 184, pl. 75. Bro. tit. Devise, pl. 86. Parsons, Ch. J., 5 [ass. Rep. 242. The seisin remains undisturbed, in the case of an authority to executors to sell land, until the authority be exercised, and goes to the heir or devisee in the mean time subject to the power.

rious 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."

(8.) Defective execution aided.

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. 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. 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 a power, it will not supply the total

want of any execution of it. The lord keeper, *340 as early as the case of Lassells *v. Cornwallis, declared, that where a person had a power to

Jackson v. Davenport, 20 Johns. Rep. 537. 550-553. The law fixes no definite time within which an executor or administrator may apply to the testamentary court, and have real estate sold for the payment of debts. But if the application be not made within a reasonable time under the circumstances, it ought to be rejected. Jackson v. Robinson, 4 Wendell's Rep. 436. Mooers v. White, 6 Johns. Ch. Rep. 360. 376-389. S. P.

b Alexander v. Alexander, 2 Vesey, 640. The English insolvent acts, of 41 Geo. III., and 53 Geo. III., pass to the assignee all powers which the insolvent might have executed for his own advantage.

• 2 Vern. Rep. 465. Prec. in Ch. 232. S. C.