A condition precedent to the exercise of a power must be complied with.107 Accordingly, if a power of sale is to be exercised only upon the request or with the assent of another person, a sale without such request or consent is invalid.108 A power to sell land when necessary for the support of a person named has been held to be badly exercised if no such necessity exists.109

A power in a trustee or executor to sell land for the payment of debts is, of course, not properly exercised if there are no debts, or if they are paid or barred by the statute of limitations;110 but a purchaser is not, by the weight of authority, charged with notice of the nonexistence of debts, unless, it seems, the power is exercised after the lapse of so long a time as to raise a presumption that the debts have been paid.111

107 Farwell, Powers, 148; Austin v. Oakes, 117 N. Y. 577; McClintock v. Cowen, 49 Pa. St. 256; Petit v. Flint & P. M. R. Co., 114 Mich. 362.

108 Sugden, Powers, 252; Bent-Otero Improvement Co. v. Whitehead, 25 Colo. 354; Richardson v. Crooker, 7 Gray (Mass.) 190; Gordon v. Gordon (Tenn. Ch. App.) 46 S. W. 357; Goebel v. Thiene, 85 Wis. 286.

109 Hull v. Culver, 84 Conn. 403; Stevens v. Winship, 1 Pick. (Mass.) 318, 11 Am. Dec. 178; Minot v. Prescott, 14 Mass. 495; Scheidt v. Crecelius, 94 Mo. 322; Henderson v. Blackburn, 104 Ill. 227. Compare Griffin v. Griffin, 141 Ill. 373; Crozier v. Hoyt, 97 Ill. 23.

110 Griffin v. Griffin, 141 Ill. 373; Sweeney v. Warren, 127 N. Y. 426; Ward's Lessee v. Barrows, 2 Ohio St. 242; Hemphill v. Pry, 183 Pa. St. 593; McDonald v. Hamblen, 78 Tex. 628; Moores v. Moores, 41 N. J. Law, 440.

In Dike v. Ricks, Cro. Car. 335, it was decided that a power of sale "in case it should fully and sufficiently appear" that the personalty was insufficient to pay debts could be exercised only in case the insufficiency so appeared. This, however, would hardly be regarded as law at the present day, when land is made by law assets for payment of debts. See Farwell, Powers, 151.

111 Farwell, Powers, 82; Smith v. McIntyre (C. C. A.) 95 Fed. 585;

286. Excessive execution.

The execution of a power is said to be "excessive" when it transgresses the rules of law or the scope of the power.112 It may be excessive (1) as regards the objects, as where a power to appoint to children is exercised in favor of grandchildren; (2) in the interests given, as where, under a power to lease for twenty-one years, a lease is made for twentytwo years; (3) in conditions annexed to the gift made in execution of the power, as where an appointment is made subject to a condition that the appointee pay a particular debt.118

When an appointment is made to persons who are not objects of the power, as well as to persons who are, it will be valid as to the latter if it can be ascertained what shares the latter are, by the appointment, intended to take.114

If the appointment is for an estate or interest greater than that contemplated by the power, as when a power to appoint for life is executed by an appointment in fee, the appointment, while wholly void at law, is valid in equity as regards the estate authorized.115 And so, where the power authorRutherford's Heirs v. Clark's Heirs, 4 Bush (Ky.) 27; Doran v. Piper, 164 Pa. St. 430; Smith v. Henning, 10 W. Va. 596.

112 Farwell, Powers, 285.

118 Sugden, Powers, 498.

114 Farwell, Powers, 312; Alexander ▼. Alexander, 2 Ves. Sr. 640, 5 Gray's Cas. 452; In re Brown's Trust, L. R. 1 Eq. 74, 5 Gray's Cas. 473; Sadler v. Pratt, 5 Sim. 632, 5 Gray's Cas. 458; Cruse v. McKee, 2 Head (Tenn.) 1; Horwitz v. Norris, 49 Pa. St. 213. Contra, Varrell v. Wendell, 20 N. H. 431.

So, where a power to appoint among members of a class was exercised by appointing life estates to the members of the class, with remainders to their children, the appointments for life were treated as valid, and the remainders were divided among the members of the class. Horwitz v. Norris, 49 Pa. St. 213. But that an appointment was entirely void in such case, in view of testator's apparent intention, see Myers v. Safe Deposit & Trust Co., 73 Md. 413. And see Little v. Bennett, 58 N. C. 156,

115 Sugden, Powers, 521.

izes a lease for a certain term, a lease for a greater num ber of years is, in equity, void as to the excess only.11

If the execution is excessive by reason of the imposition by the donee of conditions or qualifications upon the estates to be enjoyed by the appointees, as by postponing the time of vesting, or by requiring them to share with others, or to make certain payments, such conditions or qualifications, if separable from the exercise of the power, will be rejected, and the appointment otherwise upheld.'

117

287. Defective execution-Aider in equity.

In certain cases, when an attempted appointment is bad at law because of a failure to make it in the manner required by the power, equity will aid the defective execution by compelling a transfer of the land to the appointee named by the person in whom the title is vested in default of appointment. Such relief will be given in favor of persons who have given value for the appointment, as purchasers, lessees, or creditors of the person intending to exercise the power,118 persons for whom such intending appointor was, by relationship, bound to make provision, as his wife or legitimate child,119 and also in favor of a charity.120

or

The defects thus aided in equity are those which are not

116 Sugden, Powers, 519; Campbell v. Leach, Amb. 740. 117 Sugden, Powers, 515, 526; Farwell, Powers, 298; Sadler v. Pratt, 5 Sim. 632, 5 Gray's Cas. 458; Pepper's Appeal, 120 Pa. St. 235.

118 Sugden, Powers, 533; Williams, Real Prop. 298; Tollet v. Tollet,

1 White & T. Lead. Cas. Eq. 227, notes; Howard v. Carpenter, 11 Md. 259; Beatty v. Clark, 20 Cal. 11; Mutual Life Ins. Co. v. Everett, 40 N. J. Eq. 345.

119 Sugden, Powers, 534; Fothergill v. Fothergill, 1 Eq. Cas. Abr. 222, pl. 9, 5 Gray's Cas. 478; Porter v. Turner, 3 Serg. & R. (Pa.) 108. 'The defect will be supplied in favor of a child, even to the prejudice of another child, if the latter is otherwise provided for. Farwell, Powers, 341; Morse v. Martin, 34 Beav. 500, 5 Gray's Cas. 490. 120 Sugden, Powers, 534; Sayer v. Sayer, 7 Hare, 377, 5 Gray's Cas 486; Piggot v. Penrice, Finch, Prec. Ch. 471, 5 Gray's Cas. 479.

of the essence of the power, but appertain to the form of the instrument by which the power is executed. Thus, relief will be given when the power calls for an execution by an instrument under seal, and the seal is omitted,121 or when the instrument by which the power is sought to be executed has less than the proper number of witnesses.122 Where the power should, by its terms, be executed by deed, and is, instead, executed by will, equity will relieve;128 but this will not be done if the power should be executed by will, and, instead, is executed by deed, since the intention that the power shall continue revocable is defeated by such an execution.124 A mere covenant or contract to execute is considered in equity, in favor of the classes of persons before enumerated, as equivalent to an execution.125 And where a tenant for life, with power to make leases, agrees, for a valuable consideration, to make a lease, the agreement will be enforced against the remainderman, provided it be valid under the Statute of Frauds.126

121 Smith v. Ashton, 1 Ch. Cas. 263, 5 Gray's Cas. 475.

122 Wilkes v. Holmes, 9 Mod. 485, 5 Gray's Cas. 481; Sergeson v. Sealey, 2 Atk. 412, 5 Gray's Cas. 482; Schenck v. Ellingwood, 3 Edw. Ch. (N. Y.) 175.

128 Sugden, Powers, 558; Tollet v. Tollet, 2 P. Wms. 489, 5 Gray's Cas. 480.

124 Farwell, Powers, 332; Bentham v. Smith, 1 Cheves Eq. (S. C.) 33. And see Moore v. Dimond, 5 R. I. 121; Thrasher v. Ballard, 33 W. Va. 285.

125 Sugden, Powers, 550. The rule has been frequently applied in the case of a covenant, by one having power to settle a jointure, to settle it in favor of his wife. Clifford v. Burlington, ? Vern. 379, 5 Gray's Cas. 477; Fothergill v. Fothergill, 1 Eq. Cas. Abr. 222, pl. 9, 5 Gray's Cas. 478; Farwell, Powers, 519.

126 Shannon v. Bradstreet, 1 Schoales & L. 52; Blore v. Sutton, Mer. 237, 5 Gray's Cas. 483; Howard v. Carpenter, 11 Md. 259.

On the same principle, where a power was given to a person to be executed after he arrived at the age of twenty-five, a covenant by her, for valuable consideration, to execute the power, made before she arrived at that age, was held to be a valid execution in equity after

Equity will not aid the defective execution of a statutory power, since this would, in effect, defeat the requirements of the statute as to the mode of execution.127

288. Illusory appointments.

Under the doctrine of "illusory" appointments, it was formerly the rule in England that, where one had a “nonexclusive" power, that is, a power of appointing among all the members of a class, as, for instance, to all one's children,-equity would regard an appointment of a merely nominal share to one of such class as invalid, and would re quire a substantial share to be given him.128 This doctrine has been repudiated by some courts in this country, it be ing considered that the claim of each of the objects is satisfied if there is any appointment to him, however small the share,120 while by other courts it is apparently recognized.180 It has now been abolished in England by a statutory provision, in effect making every power of appointment exclusive, that is, authorizing an appointment which excludes members of the class named,-unless the amount of the share from which no member of the class shall be excluded is expressly stated in the instrument creating the power.

181

she attained that age. Johnson v. Touchet, 37 Law J. Ch. 25, 5 Gray's Cas. 492.

127 Farwell, Powers, 343 et seq.; McBride's Heirs v. Wilkinson, 29 Ala. 662; Smith v. Bowe, 38 Md. 463.

128 Sugden, Powers, 449, 938; Butcher v. Butcher, 1 Ves. & B. 79, 5 Gray's Cas. 371.

129 Lines v. Darden, 5 Fla. 51; Fronty v. Godard, Bailey Eq. (S. C.) 517; Graeff v. De Turk, 44 Pa. St. 527.

180 Thrasher v. Ballard, 35 W. Va. 524; City of Portsmouth v. Shackford, 46 N. H. 423; Hatchett v. Hatchett, 103 Ala. 556; Cruse v. McKee, 2 Head (Tenn.) 1; Degman v. Degman, 98 Ky. 717; Mc. Camant v. Nuckolls, 85 Va. 331.

131 37 & 38 Vict. c. 37, § 1 (A. D. 1874). By an earlier statute (1 Wm. IV. c. 46, A. D. 1830), the doctrine had been abolished by providing that an appointment to one of the class, however small,