289. Fraud on powers.

Equity will intervene to prevent a fraud upon a power, as it is called, this consisting of an execution of a special power in a particular way for an ulterior purpose not authorized by the power, or for the pecuniary advantage of the appointor to an extent not contemplated by the creator of the power. 132 Thus, it is a fraud on the power for a father, having the power of appointment among his children, to appoint the portion designed for a daughter to one of his sons, with directions to withhold it from the daughter in case she marry a particular person;133 as it is for a father to appoint to a child who is ill, and likely to die, in order that he himself may inherit.184 So, the execution of a power was set aside when it was to a son in order that he might be able to act as bail for the appointor.135 But the execution in favor of a particular person will not, it seems, be set aside because it is based on a preference for that person over others, or on animosity to those excluded, the purpose or intention only, and not the motive, being a subject for inquiry.136

should not be invalid, but requiring all the members of the class to be included. See the adverse comments on the earlier statute by Jessel, M. R., in Gainsford v. Dunn, L. R. 17 Eq. 405, 5 Gray's Cas. 366.

132 Farwell, Powers, 403 et seq; Duke of Portland v. Topham, 11 H. L. Cas. 32; Holt v. Hogan, 58 N. C. 82; Degman v. Degman, 98 Ky. 717; Shank v. Dewitt, 44 Ohio St. 237; Fleming v. Mills, 182 Ill. 464; Baird v. Boucher, 60 Miss. 326; Harty v. Doyle, 49 Hun (N. Y.) 410; Thomson's Ex'rs v. Norris, 20 N. J. Eq. 489; Stocker v. Foster, 178 Mass. 591.

133 Duke of Portland v. Topham, 11 H. L. Cas. 32,

184 Wellesley v. Mornington, 2 Kay & J. 143.

185 Bostick v. Winton, 1 Sneed (Tenn.) 524.

186 Farwell, Powers, 428; 1 Leake, 432; Topham v. Duke of Portland, 5 Ch. App. 57. See Fronty v. Godard, 1 Bailey Eq. (S. C.) 517; Hill v. Jones, 65 Ala. 214; Hamilton v. Mound City Mut. Life Ins. Co., 6 Lea (Tenn.) 402.

In the case of a general power, unrestricted as to purposes and objects, the donee may appoint to himself.187

290. Gifts in default of execution.

In the case of a power of appointment among a certain class, instead of regarding it as a power in the nature of a trust, enforceable in favor of the objects of the power, the English courts have frequently implied a gift to such objects in default of appointment. Whether such a gift be implied, or the power regarded as one in trust for the class named, seems to be immaterial as regards results.188 As to the persons in favor of whom such a gift is implied, it is decided that when the instrument creating the power contains an express gift to a class, with a power to determine, by appointment, in what shares and in what manner the members of the class are to take, the property vests, until the power is exercised, in all the members of the class, and they all take in default of appointment. Consequently, the death of one of the class before the time for the appointment does not divest his interest, and it goes to his heirs or devisees. 139 On the other hand, if the instrument creating the power does not contain a gift of the property to a class, but merely a power to A. to give it, as he may think fit, among

137 See ante, § 281.

188 See Sugden, Powers, 592; Farwell, Powers, 466, 467; Salusbury v. Denton, 3 Kay & J. 535.

139 Farwell, Powers (2d Ed.) 472; Lambert v. Thwaites, L. R. 2 Eq. 151, 5 Gray's Cas. 386; Casterton v. Sutherland, 9 Ves. 445, 5 Gray's Cas. 381; Wilson v. Duguid, 24 Ch. Div. 244, 5 Gray's Cas. 392; Rhett v. Mason's Ex'x, 18 Grat. (Va.) 541; Carson v. Carson, 62 N. C. 57. So, in Lambert v. Thwaites, supra, where the property was, at the death of a life tenant, to be divided among all such tenant's children in such shares as he should declare by will, it was decided that, he not having appointed the shares by will, the surviving children, and also the devisees of a deceased child, were all entitled to share in the property.

the members of that class, the law implies an intent to give it, in default of appointment, to those only of the class to whom it might have gone under an exercise of the power; and consequently, if the power could be exercised by will only, the heir, devisee, or representative of one of the class who dies during the donee's life is not entitled to share.140

291. The extinguishment of powers.

A power of appointment is generally extinguished by its execution if the entire interest in the whole property is there by appointed, and some powers, such as powers of sale, are necessarily exhausted by a single execution covering all the property.141 But a power may be executed at different times over different parts of the property, or to the extent of partial interests and estates therein, as where one appoints an estate for life at one time, and a fee at another.' A power is necessarily extinguished when the purposes for which it was created have ceased to exist,148 or when the power is one to sell for purposes of division, and the persons entitled

142

140 Farwell, Powers, 474; Lambert v. Thwaites, L. R. 2 Eq. 151, 5 Gray's Cas. 386; Kennedy v. Kingston, 2 Jac. & W. 431; Walsh v. Wallinger, 2 Russ. & M. 78, 5 Gray's Cas. 382. See In re Phene's Trusts, L. R. 5 Eq. 346, 5 Gray's Cas. 391.

In case of failure to appoint under a power to appoint among "relatives," those relations only who are the next of kin under the statute for the distribution of an intestate's personal property will take, although the property in question is real and not personal property. Farwell, Powers, 506; Wilson v. Duguid, 24 Ch. Div. 244, 5 Gray's Cas. 392.

141 Farwell, Powers, 35, 36; Ex parte Elliott, 5 Whart. (Pa.) 524; Fritsch v. Klausing, 11 Ky. Law Rep. 788, 13 S. W. 241; Asay v. Hoov. er, 5 Pa. St. 21. But a power to sell and reinvest has been held not to be exhausted by one sale and investment. Owsley v. Eads' Trustee, 22 Ky. Law Rep. 355, 57 S. W. 225.

142 Sugden, Powers, 272; Farwell, Powers, 35.

143 Farwell, Powers, 33, 61; 2 Perry, Trusts, § 498; Swift's Appeal, 87 Pa. St. 502; Hetzell v. Barber, 69 N. Y. 1; Wilks v. Burns, 60 Md. 64; Smith v. Taylor, 21 Ill. 296.

agree to a division.144 So, in the case of a power to sell in order to obtain funds for the use or support of a person named, the power will cease upon the death of such person.145 Where a power is given to a person named as executor, the cessation of the executorship, or his retirement from the of fice, will not terminate his power if it is given to him personally,146 though it will have that effect if it is annexed to the office.147 A power of sale given to a trustee will terminate with the termination of the trust, unless a contrary intention appear.148 A power is likewise extinguished if its exercise is dependent on the consent of another person, or of other persons, and one of such persons dies without having given consent.149

A power given to one who has no estate in the land, and to whom no estate is given, to be exercised in favor of another, termed a power "simply collateral," cannot, apart from statute, be suspended or extinguished by any act on the part of the donee with respect to the land, nor can it be released by him, except when it is for his own benefit, as a power to charge a sum of money on the land for himself,150

144 Chasy v. Gowdy, 43 N. J. Eq. 95; Wooster v. Cooper, 59 N. J. Eq. 204.

145 Jackson v. Jansen, 6 Johns. (N. Y.) 73; Wilkinson v. Buist, 124 Pa. St. 253; Fidler v. Lash, 125 Pa. St. 87; Harmon v. Smith, 38 Fed. 482; Ward's Lessee v. Barrows, 2 Ohio St. 241. But not upon the death of one of several persons, for whose benefit the sale is to be made. Ely v. Dix, 118 Ill. 477.

146 Smith v. McIntyre, 37 C. C. A. 177, 95 Fed. 585; Mordecai v. Schirmer, 38 S. C. 294; Larned v. Bridge, 17 Pick. (Mass.) 339; Scholl v. Olmstead, 84 Ga. 693; Hazel v. Hagan, 47 Mo. 277.

147 Littleton v. Addington, 59 Mo. 275; Goad v. Montgomery, 119 Cal. 552, 63 Am. St. Rep. 145. See Hoffman v. Hoffman, 66 Md. 568. 148 Heard v. Reade, 171 Mass. 374; Bakewell v. Ogden, 2 Busb (Ky.) 265.

149 Sugden, Powers, 252; Barber v. Cary, 11 N. Y. 397; Kissam v. Dierkes, 49 N. Y. 602; Powles v. Jordan, 62 Md. 499; Peirsol v. Roop, 56 N. J. Eq. 739. But see Leeds v. Wakefield, 10 Gray (Mass.) 514. 150 Sugden, Powers, 49; West v. Berney, 1 Russ. & M. 431, 5 Gray's

(641)

If the donee of a power has an estate in the land, and the exercise of the power would necessarily affect his estate, as when a tenant in fee has power to appoint to others in fee, or a tenant for life has power to grant leases in possession, an alienation of his estate, or of a part thereof, by the donee, will generally destroy the power, or suspend it to the extent of the alienation, since it would be a fraud upon the alienee if the grantor could thereafter, by executing the power, derogate from his own grant. A power the exercise of which would thus operate upon the estate of the donee, and which he can therefore suspend or extinguish by alienation, is known as a power "appurtenant" or "appendant," it being to some extent dependent on the estate in the donee of the power.151 But even in the case of a power "appurtenant" or "appendant," an alienation of his estate by the donee does not extinguish the power if it affect only an interest less than that to which the power extends, and a subsequent execution of the power by him is valid if he does not thereby derogate from his previous grant; and accordingly one who has a life estate with power to appoint the fee may, though he aliens his life estate, thereafter appoint the fee, if he reserved this right in his conveyance, or if his alienee assents to such appointment.152 Where the donee of a power has an estate in the land, but this is not such that it would be affected by the exercise of the power, as in the case of a tenant for life who has power to appoint to his

Cas. 341. This is changed in England by the conveyancing act of 1881 (section 52), which allows any donee of a power to release it by deed, or contract not to exercise it. Farwell, Powers, 11.

151 Sugden, Powers, 46, 51, 57; Brown v. Renshaw, 57 Md. 67; Armstrong v. Snowden, 61 Md. 364.

152 Farwell, Powers, 20; Alexander v. Mills, 6 Ch. App. 124; Har daker v. Moorhouse, 26 Ch. Div. 417; Leggett v. Doremus, 25 N. J. Eq. 122. So, where the conveyance of the life estate was to an assignee in bankruptcy. Jones v. Winwood, 3 Mees. & W. 653.