278.

Discretion as to execution-Powers in trust.

879. Powers coupled with an interest.

280. The creation of powers.

281. Scope of the power.

282. Who may execute a power.

283. Mode of execution.

284. Time of execution.

286. Excessive execution.

287. Defective execution-Aider in equity.

288. Illusory appointments.

289. Fraud on powers.

890. Gifts in default of execution.

291. The extinguishment of powers. 292. Appointed property as assets.

293. State statutory systems.

294. The rule against perpetuities as applied to powers.

A power is a proprietary right in a person to create an estate or interest in land, or to impose a lien thereon, which, when exercised, takes effect in diminution or to the destruction of the right or others in the land, or, if it takes effect in dimi.

nution or to the destruction of an estate belonging to the per son exercising the power, does so by reason of the power alone, without reference to his ownership of the estate.

Powers may be divided into four classes, according to their mode of creation and operation:

(1) "Common-law powers," which have effect at the common law.

(2) "Statutory powers," which are authorities given by
statute to create or transfer estates or interests.

(3) Powers taking effect as executory limitations.
(4) "Equitable powers," which take effect by force of rules
of equity, and are recognized only therein.

The person to whom a power is given (the donee) has generally a discretion as to whether to exercise the power. If this is not the case, and the power is imperative, it is known as a power "in the nature of a trust," and is so treated.

A power can be executed only by the persons or person to whom it is given, except in the case of powers given to trustees or executors, which, if it was not otherwise intended by the donor, can usually, sometimes by force of a statute, be exercised by the person or persons at the time executing the trust. A power must be executed in the mode, and subject to the requirements, named in the instrument by which it is created.

Equity will usually relieve against a formal defect in the execution of a power, and likewise against its execution from an ulterior motive not warranted by the power, this being known as a "fraud on the power."

An execution which is "excessive," as being in favor of persons not within the scope of the power as well as of those who are, or as creating estates or interests greater than authorized by the power, or as imposing unauthorized conditions upon the enjoyment of the estates or interests created, is valid, so far as it is in consonance with the power, if the part in deviation therefrom can be ascertained and separated.

A power is extinguished upon the cessation of the purpose of its creation. Likewise, a power is usually extinguished by a conveyance, by the donee of the power, of an estate in the land,

if this is such that a subsequent execution of the power would derogate from the grant.

Land over which one has a power is not, apart from statute, liable for his debts; but any estates created by an execution of the power, in favor of persons not paying a valuable consideration, is so liable.

The rule against perpetuities applies to powers, so as to prevent the creation of an estate under the power which will not vest within the legal period.

1 273. Common-law powers.

Following the classification of powers stated in the above Aummary, common-law powers are first to be considered.1

The only common-law powers, properly so called, which need be here mentioned, are those given by will to executors, authorizing them to sell lands for the payment of debts or legacies. Such powers existed at common law where land was by custom devisable,2 and after the passage of the Statute of Wills, making land generally devisable, their validity in wills was established.3

When executors are thus given a power of sale without being given the title to the land, the title vests in the heir or residuary devisee till the sale is made, that is, till the "execution" of the power,-and then it passes to the vendee, by force of the will, as if it were an executory devise to him, and not by force of the conveyance by the executors; this case being distinguished from that in which there is a devise

The classification as given is practically that of Mr. Edwards, as stated in his Law of Property in Land (2d Ed.) 203. This author's admirable outline of the subject of powers has been very considerably utilized in the following pages.

Litt. 169: Co. Litt. 112b; Edwards, 203; Gray, Perpetuities, § 124. Mr. Chance shows that there were probably certain other common-law powers, of an unusual character. See Chance, Powers, §§ 5-12.

Co. Litt. 112b; Townsend v. Walley, Moore, 341.

of the land itself to the executors, with power in them to alienate it, the title in the latter case vesting in the execu tors till the execution of the power, and then passing by their conveyance, and not by the will♦

Powers of agency.

Powers of attorney, by which one person is nominated as an agent to make a transfer or do some other act in the name and stead of the principal, are sometimes spoken of as common-law powers. Such an authority, however, while it did exist at common law, is entirely different from the powers here considered, since it is merely an agency in the person to whom the power is given, authorizing him to execute an instrument of conveyance or to do some other act in the place and stead of his principal, the title passing, not by the power of attorney, but by the conveyance subsequently made, which is regarded as made by the principal. A power of attorney creates merely a contractual relation,-rights in personam, as does any other contract of agency; while a

Litt. § 169; Co. Litt. 112b, 181b, 236a; Sugden, Powers, 111-115; Mandelbaum v. McDonnell, 29 Mich. 78, 18 Am. Rep. 61; Hope v. John son, 2 Yerg. (Tenn.) 123; Mitchell v. Spence, 62 Ala. 450; Guyer v. Maynard, 6 Gill & J. (Md.) 420; Hoyt v. Day, 32 Ohio St. 101; Shelton v. Homer, 5 Metc. (Mass.) 462; Den d. Elle v. Young, 23 N. J. Law, 478; Thompson v. Gaillard, 3 Rich. Law (S. C.) 418; Brumfield v. Drook, 101 Ind. 190; Todd v. Wortman, 45 N. J. Eq. 723; Greenough v. Welles, 10 Cush. (Mass.) 571; Clark v. Hornthal, 47 Miss. 434; Bradt v. Hodgdon, 94 Me. 559; Smith v. McConnell, 17 Ill. 135, 63 Am. Dec. 340; Ryan v. Duncan, 88 Ill. 144; Spruance v. Darlington, 7 Del. Ch. 111; Moore v. Bedford (Tenn.) 56 S. W. 1038; Ashby v. Ashby, 59 N. J. Eq. 536; In re Journey's Estate, 7 Del. Ch. 1. In the former case, the executor has a "naked power"; in the latter, a "power coupled with an interest." See post, § 279.

In Pennsylvania it is provided by statute that a power of sale in See Shippen's the executors shall give them, in effect, an estate.

Heirs v. Clapp, 29 Pa. St. 265.

Sugden, Powers, 45, 199.

power, such as we here treat of, involving dominion over land to a greater or less extent, creates in the person to whom the power is given rights in rem of a proprietary character."

274. Statutory powers.

If a power to alien land is given by legislative act, an alienation in pursuance thereof derives its effect from the act. Such a power may be given to the owner of an interest in land, as in the case of the power given in England by statute to life tenants to make leases extending beyond their lives, or the power of sale frequently given by statute to a mortgagee; or it may be given to the holder of an office, as in the case of the power of sale given to the assignee under the present bankruptcy law,1° or that given by statute to an executor to sell land for the payment of debts.11

275. Powers taking effect as executory limitations.

In discussing the effect of the Statute of Uses, reference was made to the fact that, by means thereof, legal estates could be created to spring up or shift in the future, not according to limitations in the instrument creating them, but according to the appointment or direction of a person named in such instrument. Similarly, land may be devised to vest in the future according to the direction or "appointment" of a person named in the will. In both these cases there is, in effect, an executory interest limited to a person to be named in the future. The person to whom authority to name the taker is given is said to have a power of appointment, and, upon the

• See 2 Austin, Jurisprudence (3d Ed.) 883; Edwards, Prop. Land, 202; Williams (18th Ed.) 362.

Sugden, Powers, 45.

Edwards, Prop. Land, 76; Farwell, Powers, 597.
Post, 555.

10 Act 1898, § 70; Collier, Bankruptcy, 454.

112 Woerner, Administration, § 337. See post, § 474.