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.

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.