The

clear conception of what is meant by these terms. phrase "power coupled with an interest" is applied to an equitable power of the second class above described; that is, a power in a trustee or quasi trustee to create estates. So, a trustee having power to sell or to lease is said to have a power coupled with an interest, since he has both the power and the title; 26 and the term is, for the same reason, applied to the case of a power of sale in executors who are also given an estate in the land.27 On the other hand, in the case of what we have referred to above as a common-law power in executors to sell, not accompanied by any devise to them of the land, they have not a power coupled with an interest, but a "naked" or "bare" power.28

Sometimes the expression "naked" power has been used in contradistinction to what we have described above as a power in the nature of a trust;29 but it is important to dis

26 Gray v. Lynch, 8 Gill (Md.) 403; Lorings v. Marsh, 6 Wall. (U. S.) 337, 354.

The term "power coupled with an interest" is used in contradistinction to "naked power" by Lord Hardwicke to describe a power of appointment the execution of which will operate on a beneficial interest in the donee of the power, what is hereafter referred to as a power "appendant" or "appurtenant." See Godolphin v. Godolphin, 1 Ves. Sr. 21; Hearle v. Greenbank, 1 Ves. Sr. 298; Marlbor. ough v. Godolphin, 2 Ves. Sr. 60. The phrase is not, apparently, 80 used by later authorities.

27 Co. Litt. 112b, 181b; 4 Kent, Comm. 320; Peter v. Beverly, 10 Pet. (U. S.) 532; Franklin v. Osgood, 14 Johns. (N. Y.) 553, affirming 2 Johns. Ch. (N. Y.) 1; Williams' Lessee v. Veach, 17 Ohio, 171. See, also, cases cited ante, note 4, and post, note 75.

28 Taylor v. Benham, 5 How. (U. S.) 233, 266; Den d. Snowhill v. Snowhill, 23 N. J. Law, 447; Den d. Elle v. Young, 23 N. J. Law, 478; Moores v. Moores, 41 N. J. Law, 440; Bergen v. Bennett, 1 Caines' Cas. (N. Y.) 1; Hoyt v. Day, 32 Ohio St. 101; Haskell v. House, 3 Brev. (S. C.) 242; Brumfield v. Drook, 101 Ind. 190; Jameson v. Smith, 4 Bibb (Ky.) 307; Atwater v. Perkins, 51 Conn. 188; Guyer v. Maynard, 6 Gill & J. (Md.) 420; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61.

29 Greenough v. Welles, 10 Cush. (Mass.) 571; Shelton v. Homer, 5 Metc. (Mass.) 462,

tinguish between these powers in trust and those coupled with an interest. A power may be imperative, and hence in the nature of a trust, though it is a mere power of appointment or sale in one having no title to or interest in the premises; while, on the other hand, a power in a trustee or executor having title to the land, though coupled with an interest, may be purely discretionary, and so not in the nature of a trust.3

80

31

It is quite frequently stated, in discussing the revocability of an agent's authority, that a "power coupled with an interest" is not revocable, and is not revoked by the death of the principal or person who conferred the power, and the phrase is explained, in this connection, to mean a power given to one who is also given the title to the property involved, so that he may exercise the power in his own name.31 The power coupled with an interest thus referred to is, however, a power conferring proprietary rights, which, as we have explained, is entirely distinct from a power of agency, and the reference is therefore confusing, rather than helpful. A power thus given to one who is given the legal title is usually, if not always, an equitable power of the second class, and these, like other powers conferring proprietary rights, are not revocable, for the reason that a proprietary right

30 This distinction between powers in trust and those coupled with an interest seems not always to have been clear to the courts. See, e. g., Peter v. Beverley, 10 Pet. (U. S.) 532, 564.

81 See Hunt v. Rousmanier's Adm'rs, 8 Wheat. (U. S.) 174, affirming 2 Mason, 244, Fed. Cas. No. 6,889; Missouri v. Walker, 125 U. S. 339; Frink v. Roe, 70 Cal. 296; Hartley's Appeal, 53 Pa. St. 212; Hawley v. Smith, 45 Ind. 183; McNeill v. McNeill, 43 W. Va. 765; State v. Walker, 88 Mo. 279; Fisher v. Fair, 34 S. C. 203; Wilburn v. Spofford, 4 Sneed (Tenn.) 698. In England, the term "power coupled with an interest" is applied apparently to any agency which is given for a consideration in order to secure some benefit to the agent, and which is accordingly considered to be irrevocable. Smart v. Sandars, 5 C. B. 895; Clerk v. Laurie, : Hurl. & N. 199.

cannot, in the absence of a special provision or limitation to that effect in its creation, be divested at the will of or by the death of the person who conferred it. A mere power of agency stands, of course, on an entirely different footing in this respect. The use of the expression "naked" or "bare" power, in contradistinction to the term "power coupled with an interest," in connection with the question of the revocation of a power of agency, is accordingly to be carefully distinguished from its use, previously referred to, to designate a power conferring proprietary rights on one who is not given any title to the property.

Powers of appointment may be created by a limitation inter vivos or by will. No particular form of words is nec essary for the creation of a power; any expression, however informal, being sufficient, if it clearly indicates an intention to give or reserve a power. Usually, the power is given by words which express the effect of its exercise, in terms empowering the donee to sell, lease, or mortgage, as the case may be 32

In the case of a trustee or executor appointed by will, a power of sale, though not expressly given, is frequently inferred from provisions in the will imposing on him duties as to the distribution of the estate which cannot be performed without a sale; 33 as when he is required to divide testator's estate among persons named, and the estate is not divisible in kind. Likewise, a power in a life tenant to sell land

* Sugden, Powers, 102, 104.

33 2 Perry, Trusts, § 766; Lindley v. O'Reilly, 50 N. J. Law, 636, 7 Am. St. Rep. 802; Going v. Emery, 16 Pick. (Mass.) 107, 26 Am. Dec. 645; Winston v. Jones, 6 Ala. 550; Belcher v. Belcher, 38 N. J. Eq. 126; Vaughan v. Farmer, 90 N. C. 607; Putnam Free School v. Fisher, 30 Me. 523; Beurhaus v. Cole, 94 Wis. 617.

Corse v. Chapman, 153 N. Y. 466; Tomkins v. Miller (N. J. Ch.) 17 Atl. 484; Stoff v. McGinn, 178 Ill. 46.

is generally implied from a limitation over, after his or her death, of what may remain.35

In case the testator directs his estate to be sold, without declaring by whom the sale is to be made, if the proceeds of sale are distributable by the executor, a power in him to make the sale is implied.

281. Scope of the power.

The person or persons in whose favor a power may be exercised, or the estates or interests which may be created thereunder, is a question of the intent of the creator of the power, as determined by a construction of the instrument creating it.87

In the case of a general power of appointment, there is no restriction upon the persons in favor of whom the appointment may be made, and it may be exercised for the benefit of the donee himself.88 But in the case of a special or particular power, the appointment can be made only in favor of the specified person or persons of the specified class; for instance, under a power to appoint among children, an appointment cannot be made to grandchildren.39

35 Clark v. Middlesworth, 82 Ind. 240; Paine v. Barnes. 100 Mass. 470; Henderson v. Blackburn, 104 Ill. 227; Smith v. McIntyre, 37 C. C. A. 177, 95 Fed. 585; Roberts v. Lewis, 153 U. S. 367.

36 Sugden, Powers, 115 et seq.; 2 Woerner, Administration, § 339; Peter v. Beverly, 10 Pet. (U. S.) 532, 565; Rankin v. Rankin, 36 Ill 293, 87 Am. Dec. 205; Ogle v. Reynolds, 75 Md. 145; Hale v. Hale, 137 Mass. 168; Lippincott's Ex'r v. Lippincott, 19 N. J. Eq. 121; Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 252; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Wood v. Hammond, 16 R. I. 98; Clark v. Hornthal, 47 Miss. 434; Lockart v. Northington, 1 Sneed (Tenn.) 318; Gay v. Grant, 101 N. C. 206.

*7 Sugden, Powers, 433; Pomery v. Partington, 3 Term R. 665, 674; Kerr v. Verner, 66 Pa. St. 326; Carson v. Smith, 5 Minn. 78 (Gil. 58), 77 Am. Dec. 539.

88 Farwell, Powers, 8, 486; Hicks v. Ward, 107 N. C. 392; Beck's Appeal, 116 Pa. St. 547.

89 Farwell, Powers, 493; Smith v. Lord Camelford, 2 Ves. Jr. 698; Austin v. Oakes, 117 N. Y. 577; Smith v. Hardesty, 88 Md. 387.

Exclusive and nonexclusive powers.

A power to appoint to a class of persons, such as children, may authorize a selection among members of the class, as when it is in terms to appoint "to such," or "to one or more," of the class; such a power being termed an "exclusive" power.40 More generally, perhaps, the power is to appoint amongst all the members of the class, as when it uses the words "to all and every the children," or "amorest" or "between" the children; and in such case, the donec being given no authority to exclude any member of the class, it is known as a "nonexclusive" power."1

Interests which may be created.

A power to appoint a fee-simple estate, or a power in general terms, will generally authorize an appointment of an estate less than a fee;42 and it authorizes an appointment of a charge on the land, merely, such as a mortgage.43

A power of appointment over the legal estate may, according to the trend of the decisions, be executed by an appointment of an equitable estate with the legal title in trustees.44

A power to divide property among children does not necessitate that a fee-simple estate be given to each, but an

40 Farwell, Powers, 362; Ingraham v. Meade, 3 Wall. Jr. 32, Fed. Cas. No. 7,045; Graeff v. De Turk, 44 Pa. St. 527; Huling v. Fenner, 9 R. I. 410; City of Portsmouth v. Shackford, 46 N. H. 423.

41 Farwell, Powers, 362; Wilson v. Piggott, 2 Ves. Jr. 351, 5 Gray's Cas. 357; Faloon v. Flannery, 74 Minn. 38; Hatchett v. Hatchett, 103 Ala. 556; Lippincott v. Ridgway, 10 N. J. Eq. 164; Wright v. Wright, 41 N. J. Eq. 382, note; Thrasher v. Ballard, 35 W. Va. 524; Knight v. Yarbrough, Gilmer (Va.) 27.

42 Farwell, Powers, 321; Bovey v. Smith, 1 Vern. 84.

48 Farwell, Powers, 320; Thwaytes v. Dye, 2 Vern. 80, 5 Gray's Cas. 451; Asay v. Hoover, 5 Pa. St. 21; Hicks v. Ward, 107 N. C. 392. 44 Trollope v. Linton, 1 Sim. & S. 477, 5 Gray's Cas. 457; Thornton v. Bright, 2 Mylne & C. 230, 5 Gray's Cas. 461; In re Paget [1898] 1 Ch. 290; Lawrence's Estate, 136 Pa. St. 354. posit Co. of Baltimore v. Meyers, 73 Md. 413.

Contra, Safe De