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. 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 contained 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 favour 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. 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.

*345 of the testator's intention.

If, how

Sugden on Powers, 341-421. In a decision in equity since the edition of Sugden referred to, it was held, that equity relieves against the defective execution of a power, only when the defect consists in the want of some circumstances required in the manner of execution, as the want of a seal, or of a sufficient number of witnesses, or where it has been executed by a deed instead of a will. Equity will reform a deed which, by mistake of the drawer, does not effectuate the intention of the parties. Cockrell v. Cholmelly, 1 Russ. & Mylne, 418. But a power to appoint by will is badly executed by a deed. 1 Story Eq. 185. Bentham v. Smith, 1 Cheves' Eq. Rep. S. C. 33. Lord Eldon, in Reid v. Shergold, 10 Vesey, 379. And as a general rule it is said that equity will relieve against the defective execution of a power created by a party, but not against the defective execution of a power created by law. Bright v. Boyd, 1 Story's Rep. 478.

Liefe v. Saltingstone, 1 Mod. Rep. 189. The King v. Marquis of Stafford, 7 East's Rep. 521. See supra, p. 319. S. P.

Waneham v. Brown, 2 Vern Rep. 153. Long v. Long, 5 Ves. 445. Roberts v. Dixall, 2 Eq. Cas. Abr. 668, pl. 19. Lord Macclesfield, in Mills v. Banks, 3 P. Wms. 9. A power given by will to raise money out of the rents or profits, includes a power to sell and mortgage, if necessary for the purposes of the trust. Bootle v. Blundell, 1 Merivale's Rep. 193. 232, 233. 1 Powell on Devises, 234, note by Mr. Jarman.

ever, 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. 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. 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. 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.d

• Whitlock's case, 8 Co. 69, b. Phelps v. Hay, MS. App. to Sugden on Powers.

b Sugden on Powers, 452, 453. Talbot v. Tipper, Skinner, 427. Earl of Tankerville v. Coke, Moseley, 146. Lord Hinchinbroke v. Seymour, 1 Bro. 395. Bristow v. Ward, 2 Ves. jr., 336.

с

Sugden on Powers, 514, 515.

The Master of the Rolls, in Alexander v. Alexander, 2 Ves. 642. Brudenell v. Elwes, 1 East's Rep. 442. The general rule seems to be, that the exercise of a power in favour of a class of persons, as children, &c., is for the benefit of those living at the time of the appointment. Needham v. Smith, 4 Russell, 318. Though children in the ordinary sense do not include grandchildren, yet in a will grandchildren and even great grandchildren may take by the designation of children, when necessary to effectuate a manifest intent. This is the case when the word children is used as co-extensive with issue, or when there are no children literally to answer the description. Royle ». Hamilton, 4 Vesey, 437. Withy v. Thurliston, Ambl. 555. Cutter v. Doughty, 23 Wendell, 522. Ruft v. Rutherford, 1 Bailey's Eq. Rep. 17. Hallowell v. Phipps, 2 Wharton, 376. Dickinson v. Lee, 4 Watts, 82. Mowatt v. Carow, 7 Paige, 328. Earl of Oxford v. Churchill, 3 Ves. Bea. 59. Philips' Devisees v. Beall, 9 Dana Kentucky Rep. 1. Vide infra, p. 419. A devise "to all and every of my grandchildren, who shall attain the age of twenty-four years," held void for remoteness. Newman v. Newman, 10 Simon, 51.

*We have already seen 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.b

IV. 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

■ Vide supra, p. 108.

Peters v. Marsham, Fitz. 156. Sir Thomas Clarke, in Alexander v. Alexander, 2 Ves. 640. Adams v. Adams, Cowp. Rep. 651. Commons v. Marshall, 7 Bro. P. C. 111. See, also, supra, p. 106, and the authorities there cited. It is a general rule, that the invalidity of any particular trust, interest, accumulation, or limitation created by will, will not destroy the trust and limitations which are otherwise valid, unless the latter are so mixed up with those that are illegal and void, that it is impossible to sustain the one without giving effect to the other. Chancellor Walworth, in Hawley & King v. James and Others, July, 1835, 5 Paige, 318. Kane v. Gott, 24 Wendell, 641. 666. So, if a bond be taken under the common law or under a statute, with a condition in part good and in part bad, a recovery may be had for a breach of the good part. United States v. Brown, Gilpin, 155. Polk v Plummer, 2 Humphrey's Tenn. Rep. 500. consideration will support a contract. Rep. 479.

An union of a good with a bad Jarvis v. Peck, 1 Hoffman's Ch.

estate created by it cannot vest in previously created lease expires.

a

possession until the

The donee of the

Even

power cannot defeat his own grant. Nor can the donee of a power, simply collateral, suspend or extinguish it by any act of his own. But a total alienation of the estate extinguishes a power appendant, or in gross; *347 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. a conveyance of the whole estate, by way of mortgage, extinguishes a power appendant or appurtenant. This is now the received doctrine, according to Mr. Sugden ;d but the opinion of Lord Mansfield, in Ren v. Bulkeley,* 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? 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

• Goodright v. Cater, Doug. Rep. 477.

15 Hen. VII., fo. 11, b, translated in App. No. 1 to Sugden on Powers, Co. Litt. 237, a 265, b. Digge's case, 1 Co. 175, a. Willis v. Sherral, 1 Atk. Rep. 474. Sugden on Powers, 50. 67. West v. Barney, 1 Russell & Mylne, 391.

Doug. Rep. 292.

d Sugden on Powers, 57.

• Doug. Rep. 292.

f The New-York Revised Statutes have placed this subject on just grounds, by declaring that the power of a tenant for life to make leases, is not assignable as a separate interest, but is annexed to the estate, and passes with the conveyance of the estate, and a special exception of it extinguishes it. So, a mortgage by the donee of the power does not extinguish it or suspend it. The power is only bound by the mortgage, and made subservient to it. Ibid. vol. i. 733, sec. 88-91. See, also, supra, p. 108.

is usual first to appoint the estate, and then to convey." All these various powers, except the last, may *348 *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.

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, 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 favour of the conclusion that the power is not extinguished, and may well subsist with, and qualify the fee.d I apprehend that, by the

a

· Sugden on Powers, 62–64. In Badham v. Mee, (7 Bing. Rep. 695,) it was held, that where the husband took an estate for life under a marriage settlement, with power of appointment to sons, remainder, in default of appointment, to the sons successively in tail, and he became bankrupt, and his lands were conveyed to assignees, a subsequent appointment was void, inasmuch as the power was destroyed, and the remainder took effect.

b1 Vent. 228. Sugden on Powers, 66, 67. Bickley v. Guest, 1 Russell & Mylne, 440. The power may be extinguished by a release under the New-York Revised Statutes, vol. i. 733, sec. 89; but the capacity to extinguish by fine or feoffment has ceased with those conveyances.

• 7 Vesey, 567.

Sir Edward Clare's case, 6 Co. 17, b. Peacock v. Monk, 2 Vesey, 567. Lord Eldon, on appeal, in the case of Maundrell v. Maundrell, Sugden on Powers, 79-93. Sir Edward Sugden discusses the question upon the conflicting authorities with his usual acuteness. Vide supra, p. 51, 52.