making of the appointment by him, the person in whose favor he exercises the power takes an interest in the land as . if there had been an executory limitation in his favor in the original instrument.12 Thus, one may convey land to A. and his heirs to such uses as A. (or B., or even the grantor himself) may appoint, and, upon the making of the appointment in favor of C. and his heirs, the land vests in C. in fee simple, by way of springing use, as if the original limitation had been to him; the fee resulting, until appointment, to the grantor. And so one may devise land to such person, and for such an interest, as A. may appoint, and, on the making of the appointment in favor of B. and his heirs, the fee simple vests in B., as by an executory devise to him.18

In case, however, the estate created by the exercise of the power is immediately preceded by another estate, it will take effect as a remainder, and not as an executory interest, in accordance with the rule before stated that a future limitation will always be so treated, if possible."

By means of a power of this character, the grantor of an estate may reserve to himself the power to revoke the grant, as in the case of a conveyance by A. to the use of B. and

12 Sugden, Powers, 31, 147, 196; Co. Litt. 271b, Butler's note vii. 1; 1 Leake, 114.

18 A power of appointment given by will is frequently spoken of as a common-law power or authority. See Sugden, Powers, 45; 1 Leake, 377. The expression "common-law" power is in such cases evidently used in contradistinction to a power arising by force of the Statute of Uses. See Farwell, Powers, 175; 1 Leake, 377. A power created by will takes effect under the Statute of Wills (Sugden, 199; Chance, Powers, § 5; Townesend '7. Walley, Moore, 341), and is not, except in the case of a power to executors to sell, which may be distinguished as having been recognized at common law, any more a common-law authority, strictly speaking, than an executory interest is a common-law interest. Sugden calls even a statutory power a common-law authority. Sugden, Powers, 45.

14 Whitby v. Mitchell, 42 Ch. Div. 494, 44 Ch. Div. 85, 5 Gray's Cas. 604.

his heirs, with the reservation of a power in A. (or in a third person) to revoke the use thus limited, in which case B.'s estate in fee simple will terminate on the exercise of such power.15

276. Equitable powers.

Equitable powers are of two kinds. The first kind consists of powers of appointment, similar to those of the class last described, except that they are exercisable only with reference to equitable interests in the land, the legal title being outstanding in trustees, and not within the purview of the power. Thus, the legal fee may be vested by conveyance or devise in trustees for A. for life, with remainder in trust to such persons as A. shall appoint, and, in default of appointment, in trust for B. in fee simple, in which case the exercise by A. of the power in favor of C. will divest the equitable interest of B. in favor of C., without, however, affecting the legal ownership in the trustees, except that they will, in equity, be compelled to hold for the benefit of C.16

Another kind of equitable power, and one which is of very frequent occurrence, exists when the legal owner of the estate, holding for the benefit of another, is given power to sell or lease or otherwise create estates or interests in the land which will bind the equitable as well as the legal interest. In these cases the grant of the power relieves the legal owner to that extent from the effect of the equitable

18 Sugden, Powers, 363, 478; Jones v. Clifton, 101 U. S. 225; Riggs ▼. Murray, 2 Johns. Ch. (N. Y.) 565; Reidy v. Small, 154 Pa. St. 505. So it has been held that the grantor may reserve a power to mortgage the land. Bouton v. Doty, 69 Conn. 531.

Powers of revocation are expressly recognized by the New York statute, and statutes of other states modeled thereon. Chaplin, Exp. Trusts, c. 23.

16 Sugden, Powers, 200; Farwell, Powers, 2.

(608)

These powers fredevises to trustees,

rules which prevent him from transferring his legal title free from the claims of the beneficiaries.17 quently occur in the case of grants or with powers of sale or to make leases. A devise of land to executors, with power in them to sell, is an instance of a power of this class, they holding the legal title as trustees.

277. Powers of appointment.

Powers taking effect, as explained above, as executory limitations, and the analogous class of powers operating upon equitable interests without affecting the legal title, both of which are known as "powers of appointment," constitute a very important branch of the English law of land, and, as will appear later, they are subject to various rules which do not apply to other classes of powers. In this country, owing to the infrequency of family settlements of land, such powers are less common, though by no means unusual.

The creator of a power of appointment is known as the "donor" of the power, and the person to whom the power is given as the "donee." The exercise or execution of the power is frequently termed the "appointment," and the person in favor of whom it is exercised is termed the "appointee."

A power of appointment is "general" if the donee is given authority thereby to appoint to any person, including himself, and is not restricted as to the estate or interest which he may appoint, while it is a "particular," "special," or "limited" power if, by the instrument creating the power, the appointment is restricted to particular persons, or a particular class of persons, known as "objects" of the power, or if it can be

17 Lewin, Trusts, 674; Goodeve, Real Prop. (4th Ed.) 302; Edwards, Prop. Land, 208. See, as to powers in trustees to lease, Collins v. Foley, 63 Md. 158, 52 Am. Rep. 505; Wentz's Appeal, 106 Pa. St. 301.

exercised only for certain named purposes or under certain conditions.18

Since, upon the execution of a power of appointment, the estates limited by the execution take effect as if they had been limited in the original instrument creating the power, it follows that they take priority over all estates limited in default of appointment, or limited to continue until appointment.19 Likewise, by the execution of a power, the dower right of the wife of the person entitled thereto in default of appointment is defeated,20 as is the lien of a judgment against such person, or an execution which is levied upon the land.21

278. Discretion as to execution-Powers in trust.

The exercise of a power, strictly so called, lies entirely in the discretion of the person to whom it is given, and he cannot be compelled to execute it, even by a court of equity.22 An important distinction must here be made, however, between a mere power and what is known as a power “in the nature of a trust," or a power "coupled with a trust," which exists when, by the instrument creating the power, the execution thereof is made an imperative duty, and is therefore regarded in equity as a trust to be carried out by the person to whom it is given. The nonexecution of such a power will be aided in equity, on the same principle on which courts of equity will enforce any trust; and if the donee refuses to exercise it, or dies without exercising it, the court will exer

18 Co. Litt. 271b, Butler's note, 271b, iii. 4; Sugden, Powers, 394; Farwell, Powers, 7; Goodeve, Real Prop. (4th Ed.) 298.

19 Sugden, Powers, 478; Farwell, Powers, 276; Christy v. Pulliam, 17 Ill. 59; Orender v. Call, 101 N. C. 399.

20 Sugden, Powers, 480. See ante, § 183, note 87.

21 Wigan v. Jones, 10 Barn. & C. 459, 5 Gray's Cas. 345; Brandies v. Cochrane, 112 U. S. 344; Leggett v. Doremus, 25 N. J. Eq. 122. 22 Sugden, Powers, 588; Farwell, Powers, 9; Lewin, Trusts, 676; 2 Story, Eq. Jur. § 1061; 1 Perry, Trusts, § 248. And see post, § 282.

cise it, so far as it is able to do so. This relation of trust may exist not only in the case of powers of appointment. but in connection with the other classes of powers above named;28 and in such case, if the power be in favor of a class, though the donee might have exercised it in favor of certain members of the class, equity will enforce it in favor of all equally.24 As an example of a power in the nature of a trust may be mentioned a power of sale given by will to an executor or trustee with specific directions to apply the proceeds for the benefit of individuals named 25

$279. Powers coupled with an interest.

A "power coupled with an interest" is quite frequently referred to by the courts, generally in contradistinction to a "naked" or "bare" power, and it is important to have a

28 Sugden, Powers, 588; Lewin, Trusts, 677, 950; 1 Perry, Trusts, c. 8; 2 Story, Eq. Jur. § 106; Brown v. Higgs, 8 Ves. 561; Randolph v. East Birmingham Land Co., 104 Ala. 355; Thorp v. McCullum, 6 III. 615; Ingraham v. Ingraham, 169 Ill. 432; Miller v. Meetch, 8 Pa. St. 417; Faulkner v. Davis, 18 Grat. (Va.) 651; Greenough v. Welles, 10 Cush. (Mass.) 571; Atkinson v. Dowling, 33 S. C. 414; Druid Park Heights Co. v. Oettinger, 53 Md. 46.

"It is perfectly clear that, where there is a mere power of disposing, and that power is not executed, this court cannot execute it. It is equally clear that wherever a trust is created, and the execution of that trust fails by the death of the trustee or by accident, this court will execute the trust. But there are not only

a mere trust and a mere power, but there is also known to this court a power which the party to whom it is given is intrusted and required to execute; and with regard to that species of power the court consider it as partaking so much of the nature and qualities of a trust that, if the person who has that duty imposed upon him does not discharge it, the court will, to a certain extent, discharge the duty in his room and place." Lord Eldon, in Brown v. Higgs, 8 Ves. 570.

24 1 Perry, Trusts, §§ 250, 255; Withers v. Yeadon, 1 Rich. Eq. (S. C.) 324.

25 Greenough v. Welles, 10 Cush. (Mass.) 571; Druid Park Heights Co. v. Oettinger, 53 Md. 46; Bailey, Petitioner, 15 R. 1. 60.