children after his death, the power is said to be "collateral" or "in gross," and an alienation of his estate does not affect the power.153

154

All powers other than those "simply collateral," including powers "in gross," ," if not, it seems, coupled with a trust, may be released by the donee to any person having an estate of freehold in the land.155

A power of appointment is not merged in an estate in fee simple which is given to the donee of the power by the instrument creating the power,156 though it is destroyed, it seems, if the donee of a power subsequently acquires the fee simple.157

§ 292. Appointed property as assets.

Property which is subject to a general power of appointment is not, apart from statute, liable for the payment of the debts of the donee, even in equity, since the person entitled to the property in default of appointment has an equal equity with the donee's creditors.158 If, however, such a power is executed by the donee in favor of one who pays no consideration, the property is thereby made assets for payment of the donee's debts, and the claims of his creditors will take

158 Sugden, Powers, 46, 79; West v. Berney, 1 Russ. & M. 431, 5 Gray's Cas. 341.

154 Farwell, Powers, 12, 15; Saul v. Pattinson, 34 Wkly. Rep. 561; Dunne's Trusts, L. R. 1 Ir. 516. See West v. Berney, 1 Russ. & M. 431, 5 Gray's Cas. 341; Atkinson v. Dowling, 33 S. C. 414.

155 Sugden, Powers, 82 et seq.; Albany's Case, 1 Coke, 110b, 5 Gray's Cas. 328; West v. Berney, 1 Russ. & M. 431, 5 Gray's Cas. 341; Smith v. Death, 5 Madd. 371, 5 Gray's Cas. 344.

166 Sugden, Powers, 93; Maundrell v. Maundrell, 10 Ves. 246, 256; Sites v. Eldredge, 45 N. J. Eq. 632.

157 Farwell, Powers, 31.

158 Farwell, Powers, 255; Holmes v. Coghill, 7 Ves. 499, 5 Gray's Cas. 447; Jones v. Clifton, 101 U. S. 225; Ryan v. Mahan, 20 R. I. 417; Gilman v. Bell, 99 Ill. 144; Crawford v. Langmaid, 171 Mass. 309.

precedvice of the claims of the appointees, it being immaterial, in this connection, that the power is exercisable only by will 159

In England, execution is now allowed by statute against land over which the debtor has a power which he may exercise for his own benefit;180 and in a number of states in this country a power which could be executed in favor of the donee is by statute made equivalent to an estate in fee as regards creditors, and the execution of the power may be decreed for their benefit.161

293 State statutory systems.

In New York, and in five other states which have adopted its legislation in this regard, the law of powers has been the subject of statutory codification, involving many changes

150 Sugden, Powers, 474; Farwell, Powers, 254; Holmes v. Coghill, 7 Ves. 499, 5 Gray's Cas. 447; In re Harvey's Estate, 13 Ch. Div. 216; Brandies v. Cochrane, 112 U. S. 344; Manson v. Duncanson, 166 U. S. 533, 546; Knowles v. Dodge, 1 Mackey (D. C.) 66; Johnson v. Cushing, 15 N. H. 298; Gilman v. Bell, 99 Ill. 144; Clapp v. Ingraham, 126 Mass. 200.

In Pennsylvania and South Carolina it has been decided that the property is not assets, even after execution of the power. Com. v. Duffield, 12 Pa. St. 277; Humphrey v. Campbell, 59 S. C. 39. In Vermont, the general rule is questioned, and it is held not to be applicable so as to render the property liable for the donee's debts existing before the creation of the power, he having been given merely an equitable life estate with a power to appoint, to take effect after his death. Wales v. Bowdish's Ex'r, 61 Vt. 23.

That the appointee must be a volunteer in order that the creditors may take precedence, see Patterson v. Lawrence, 83 Ga. 703. The appointed property is not to be subjected to payment of debts if there is other property sufficient for this purpose. White v. In. stitute of Technology, 171 Mass. 84; Patterson v. Lawrence, 83 Ga. 703.

160 1 Leake, 427; Williams, Real Prop. 293.

101 1 Stimson's Am. St. Law, §§ 1656, 1657; 4 Sharswood & B, Lead, Cas. Real Prop. 25, 28; Chaplin, Exp. Trusts, § 711. See Alford's Adm'r v. Alford's Adm'r, 56 Ala. 350; Ford v. Ford, 70 Wis. 19.

from the law as it exists in England and other states.182 These statutory provisions in express terms abolish powers as they formerly existed, but, in the solution of questions not covered by the statute, the English law on the subject is occasionally referred to,163 and in many respects the same principles apply as before the statutory change. For a discussion of this peculiar code system, and of the numer ous decisions which have been rendered in the construction and application of its provisions, reference must be made to local treatises, and here there will be made mention only of the statutory classification of the subject.164

Powers are, by these statutes, divided, (1) according to the degree of control given over the property, into general and special powers, and, (2) according to the persons interested in their exercise, into beneficial powers and powers in trust. A power is general where it authorizes the transfer or incumbrance of a fee, by either a conveyance or a will or a charge, to any person whatever, while it is special if the persons or class of persons in whose favor it may be exercised are named, or if it authorizes the creation of an estate less than a fee.165 This division into general and special powers corresponds with the English division into general and limited or particular powers, so far as it is based on the designation of persons in whose favor the power must be exercised.166

A power is, under these statutes, "beneficial" if no person other than the grantee has, by the terms of its creation,

162 1 Stimson's Am. St. Law, §§ 1650-1659; New York Real Prop. Law, §§ 110-160; Comp. Laws Mich. 1897, §§ 8856-8917; Gen. St. Minn. 1894, §§ 4301-4361; Rev. Codes N. D. 1895, §§ 3402-3464; Ann. St. S. D. 1901, §§ 3724-3781; Sanb. & B. St. Wis. 1898, §§ 2101-2158. 163 Chaplin, Exp. Trusts, § 531.

164 A Treatise on Express Trusts and Powers, by Stewart Chaplin, Esq., is probably the most reliable authority on the subject. 165 New York Real Prop. Law, §§ 114, 115.

166 See Farwell, Powers, 7; Sugden, Powers, 394.

any interest in its execution, while a power is "in trust" if any person or persons, other than the donee of the power, is designated as entitled to any portion of the proceeds or other benefits to result from its execution, or if the disposition or charge which it authorizes is limited to be made to a person or class of persons other than the donee.167 Powers in trust are imperative unless there is an express direction, in the creation of the power, that it shall be discretionary,168 and consequently powers in trust, as known to the English law, would be included in the statutory class of the

samé name.

294. The rule against perpetuities applied to powers.

The rule against perpetuities is applicable to powers, but subject to certain peculiarities in the mode of its application, arising from the nature of a power. A power is bad if, by the terms of its creation, it may be exercised after the time fixed by the rule, since, until its exercise, the title is subjectto a future limitation of a contingent character.169 Accordingly, a power given to a life tenant, yet unborn, to appoint by will, is void, since the appointment might be made at a time beyond the legal period.170

A power of appointment which does not require an appointment which will transgress the rule is not bad merely because it does not preclude such an appointment, since the power alone does not create the estate, but the appointment under it, and the object of the rule is sufficiently attained by applying it to the limitations created by the appointment.171

187 New York Real Prop. Law, §§ 117, 118.

168 New York Real Prop. Law, §§ 117, 118.

169 Gray, Perpetuities, § 475; Bristow v. Boothby, 2 Sim. & 8. 465. 5 Gray's Cas. 702; Woodbridge v. Winslow, 170 Mass. 388. 170 Morgan v. Gronow, L. R. 16 Eq. 1, 5 Gray's Cas. 726.

171 Gray, Perpetuities. §§ 510-513; Lewis, Perpetuity, 487; Sug

In determining the validity of limitations created by the exercise of a special power, as being within or without the rule, the time allowed by the rule is computed from the time of the creation of the power, and not from its execution.172 But a general power, not restricted as to time or objects of execution, and exercisable either by conveyance or will, is equivalent to absolute ownership, and its exercise is on the same footing as an original conveyance. Consequently, the time within which limitations created by its exercise must vest is to be calculated as from the date of its exercise, and not from its creation.1 173

Powers given to a trustee to sell or lease land are not invalid merely because it is not expressly provided that they shall be exercised within a life or lives in being and twentyone years thereafter.174 Such powers, in the absence of an express showing of an intention to the contrary, cease, aocording to the English decisions, either upon the termination of the trust, or when the ultimate equitable owner is entitled to call for a conveyance of the legal title, and, after such right to call for a conveyance has accrued, the power is non

den, Powers, 152; Routledge v. Dorril, 2 Ves. Jr. 357, 5 Gray's Cas. 703; Lawrence's Estate, 136 Pa. St. 354.

172 Gray, Perpetuities, §§ 514-523b; Sugden, Powers, 396; Lawrence's Estate, 136 Pa. St. 355; Thomas v. Gregg, 76 Md. 169; In re Boyd's Estate (Pa.) 49 Atl. 299.

178 Gray, Perpetuities, § 524; Lewis, Perpetuity, 483; Bray v. Bree, 2 Clark & F. 453, 5 Gray's Cas. 711; Mifflin's Appeal, 121 Pa. St. 205, 6 Am. St. Rep. 781; Lawrence's Estate, 136 Pa. St. 355.

That a power to be exercised only by will is not a general power, within this rule, see Gray, Perpetuities, §§ 526-526b; In re Powell's Trusts, 39 Law J. Ch. 188. 5 Gray's Cas. 720; Lawrence's Estate, 136 Pa. St. 355; Genet v. Hunt, 113 N. Y. 158. Contra, Rous v. Jackson, 29 Ch. Div. 521; In re Flower, 55 Law J. Ch. 200, 5 Gray's Cas. 733.

14 Gray, Perpetuities, §§ 490, 506; Farwell, Powers, 33, 112; Lantsbery v. Collier, 2 Kay & J. 709, 5 Gray's Cas. 713; Cresson Ferree, 70 Pa. St. 446; Pulitzer v. Livingston, 89 Me. 359.