cannot, in the absence of a special provision or limitation to that effect in its creation, be divested at the will of or by the death of the person who conferred it. A mere power of agency stands, of course, on an entirely different footing in this respect. The use of the expression "naked" or "bare" power, in contradistinction to the term "power coupled with an interest," in connection with the question of the revocation of a power of agency, is accordingly to be carefully distinguished from its use, previously referred to, to designate a power conferring proprietary rights on one who is not given any title to the property.

€ 280. Creation of powers.

Powers of appointment may be created by a limitation inter vivos or by will. No particular form of words is necessary for the creation of a power; any expression, however informal, being sufficient, if it clearly indicates an intention to give or reserve a power. Usually, the power is given by words which express the effect of its exercise, in terms empowering the donee to sell, lease, or mortgage, as the case may be,32

In the case of a trustee or executor appointed by will, a power of sale, though not expressly given, is frequently inferred from provisions in the will imposing on him duties as to the distribution of the estate which cannot be performed without a sale; 33 as when he is required to divide testator's estate among persons named, and the estate is not divisible in kind.34 Likewise, a power in a life tenant to sell land

** Sugden, Powers, 102, 104.

88 2 Perry, Trusts, § 766; Lindley v. O'Reilly, 50 N. J. Law, 636, 7 Am. St. Rep. 802; Going v. Emery, 16 Pick. (Mass.) 107, 26 Am. Dec. 645; Winston v. Jones, 6 Ala. 550; Belcher v. Belcher, 38 N. J. Eq. 126; Vaughan v. Farmer, 90 N. C. 607; Putnam Free School v. Fisher, 30 Me. 523; Beurhaus v. Cole, 94 Wis. 617..

4 Corse v. Chapman, 153 N. Y. 466; Tomkins v. Miller (N. J. Ch.) 27 Atl. 484; Stoff v. McGinn, 178 Ill. 46.

is generally implied from a limitation over, after his or her death, of what may remain.35

In case the testator directs his estate to be sold, without declaring by whom the sale is to be made, if the proceeds of sale are distributable by the executor, a power in him to make the sale is implied.

281. Scope of the power.

The person or persons in whose favor a power may be exercised, or the estates or interests which may be created thereunder, is a question of the intent of the creator of the power, as determined by a construction of the instrument creating it.87

In the case of a general power of appointment, there is no restriction upon the persons in favor of whom the appointment may be made, and it may be exercised for the benefit of the donee himself.88 But in the case of a special or particular power, the appointment can be made only in favor of the specified person or persons of the specified class; for instance, under a power to appoint among children, an appointment cannot be made to grandchildren.39

35 Clark v. Middlesworth, 82 Ind. 240; Paine v. Barnes. 100 Mass. 470; Henderson v. Blackburn, 104 Ill. 227; Smith v. McIntyre, 37 C. C. A. 177, 95 Fed. 585; Roberts v. Lewis, 153 U. S. 367.

36 Sugden, Powers, 115 et seq.; 2 Woerner, Administration, § 339; Peter v. Beverly, 10 Pet. (U. S.) 532, 565; Rankin v. Rankin, 36 Ill 293, 87 Am. Dec. 205; Ogle v. Reynolds, 75 Md. 145; Hale v. Hale, 137 Mass. 168; Lippincott's Ex'r v. Lippincott, 19 N. J. Eq. 121; Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 252; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Wood v. Hammond, 16 R. I. 98; Clark v. Hornthal, 47 Miss. 434; Lockart v. Northington, 1 Sneed (Tenn.) 318; Gay v. Grant, 101 N. C. 206.

*7 Sugden, Powers, 433; Pomery v. Partington, 3 Term R. 665, 674; Kerr v. Verner, 66 Pa. St. 326; Carson v. Smith, 5 Minn. 78 (Gil. 58), 77 Am. Dec. 539.

88 Farwell, Powers, 8, 486; Hicks v. Ward, 107 N. C. 392; Beck's Appeal, 116 Pa. St. 547.

89 Farwell, Powers, 493; Smith v. Lord Camelford, 2 Ves. Jr. 698; Austin v. Oakes, 117 N. Y. 577; Smith v. Hardesty, 88 Md. 387.

Exclusive and nonexclusive powers.

A power to appoint to a class of persons, such as children, may authorize a selection among members of the class, as when it is in terms to appoint "to such," or "to one or more," of the class; such a power being termed an "exclusive" power.40 More generally, perhaps, the power is to appoint amongst all the members of the class, as when it uses the words "to all and every the children," or "amorest" or "between" the children; and in such case, the donec being given no authority to exclude any member of the class, it is known as a "nonexclusive" power."1

Interests which may be created.

A power to appoint a fee-simple estate, or a power in general terms, will generally authorize an appointment of an estate less than a fee;42 and it authorizes an appointment of a charge on the land, merely, such as a mortgage.43

A power of appointment over the legal estate may, according to the trend of the decisions, be executed by an appointment of an equitable estate with the legal title in trustees.44

A power to divide property among children does not necessitate that a fee-simple estate be given to each, but an

40 Farwell, Powers, 362; Ingraham v. Meade, 3 Wall. Jr. 32, Fed. Cas. No. 7,045; Graeff v. De Turk, 44 Pa. St. 527; Huling v. Fenner, 9 R. I. 410; City of Portsmouth v. Shackford, 46 N. H. 423.

41 Farwell, Powers, 362; Wilson v. Piggott, 2 Ves. Jr. 351, 5 Gray's Cas. 357; Faloon v. Flannery, 74 Minn. 38; Hatchett v. Hatchett, 103 Ala. 556; Lippincott v. Ridgway, 10 N. J. Eq. 164; Wright v. Wright, 41 N. J. Eq. 382, note; Thrasher v. Ballard, 35 W. Va. 524; Knight v. Yarbrough, Gilmer (Va.) 27.

42 Farwell, Powers, 321; Bovey v. Smith, 1 Vern. 84.

48 Farwell, Powers, 320; Thwaytes v. Dye, 2 Vern. 80, 5 Gray's Cas. 451; Asay v. Hoover, 5 Pa. St. 21; Hicks v. Ward, 107 N. C. 392. 44 Trollope v. Linton, 1 Sim. & S. 477, 5 Gray's Cas. 457; Thornton v. Bright, 2 Mylne & C. 230, 5 Gray's Cas. 461; In re Paget [1898] 1 Ch. 290; Lawrence's Estate, 136 Pa. St. 354. posit Co. of Baltimore v. Meyers, 73 Md. 413.

Contra, Safe De

other division is proper. Thus, there may be an appointment to one for life, and a remainder or executory devise to another.45

Powers of sale and exchange.

A power to sell land authorizes a conveyance of the fee simple in the land to the purchaser, and words of inheritance are not necessary in the creation of the power.46

But

A power of sale is not, in itself, usually regarded as authorizing a mortgage of the land, in the absence of anything to show an intention that a mortgage may be created. the rule is different if the purpose of the authorization of a sale is the raising of money for some particular objects named, or to pay charges imposed on the land;48 and by some authorities, on the view that a mortgage is merely a conditional sale, the power to mortgage is regarded as prima facie included.49

45 Farwell, Powers, 322; Sugden, Powers, 682; Beardsley v. Hotchkiss, 96 N. Y. 201, 218. And see Ricketts v. Loftus, 4 Younge & C. Exch. 519, 5 Gray's Cas. 363; Lawrence's Estate, 136 Pa. St. 354.

46 Sugden, Powers. 398; Chance, Powers, § 1205; Hemhauser v. Decker, 38 N. J. Eq. 426.

47 Sugden, Powers, 425; 2 Perry, Trusts, § 768; Price v. Courtney, 87 Mo. 387, 56 Am. Rep. 453; Hoyt v. Jaques, 129 Mass. 286; Butler v Gazzam, 81 Ala. 491; Willis v. Smith, 66 Tex. 31; Arlington Bank v. Paulsen, 57 Neb. 717; McMillan v. Cox, 109 Ga. 42; Allen v. Ruddell, 51 S. C. 366; Bloomer v. Waldron, 3 Hill (N. Y.) 361: Wilson v. Maryland Ins. Co., 60 Md. 150; Tyson v. Latrobe, 42 Md. 325; Stokes v. Payne, 58 Miss. 614, 38 Am. Rep. 314; Ferry v. Lalbic, 31 N. J. Eq. 566.

48 Sugden, Powers, 425; Devaynes v. Robinson, 24 Beav. 86; Hoyt v. Jaques, 129 Mass. 286; Starr v. Moulton, 97 Ill. 525; Loebenthal v. Raleigh, 36 N. J. Eq. 169; Faulk v. Dashiell, 62 Tex. 642, 50 Am. Rep. 542; Kent v. Morrison, 153 Mass. 137. And see Wood v. Kice, 103 Mo. 329.

49 So in Tennessee and Pennsylvania. Steifel v. Clark, 9 Baxı (Tenn.) 470; Jackson v. Everett (Tenn.) 58 S. W. 340; Lancaster v. Dolan, 1 Rawle (Pa.) 231; Zane v. Kennedy, 73 Pa. St. 182, 192. See English cases discussed in Farwell, Powers, 558.

50

A power of sale authorizes a sale for cash only, and not an exchange. A power in a trustee to sell and exchange has been held to imply a power to partition between the joint owners of the property,51 though a power of sale alone would not have this effect.52

$282. Who may execute a power-(a) In case of individual donee.

Since the gift of a power implies personal trust and confidence, it cannot be transferred or delegated to another, except as to details not involving the exercise of any discre tion, unless a right of transfer or delegation is expressly given.53 This rule does not, however, apply to a general power of appointment, unrestricted as to its beneficiaries and the mode of its execution, since there is in such case no trust and confidence, and the power is equivalent to ownership, and accordingly the donee may delegate its execution, or may appoint to such uses as another shall appoint.54 If a legal power be in terms given to the donee "and his as

50 Perry, Trusts, § 769; Woodward v. Jewell, 140 U. S. 247; Russell v. Russell, 36 N. Y. 581; City of Cleveland v. State Bank, 16 Ohio St. 236.

51 Phelps v. Harris, 101 U. S. 370; In re Frith v. 'Osborne, 8 Ch. Div. 618. Compare Farwell, Powers, 556.

522 Perry, Trusts, § 769; Farwell, Powers, 556; McQueen v. Farquhar, 11 Ves. 467; In re Carr, 16 R. I. 645.

53 Sugden, Powers, 179; 4 Kent, Comm, 327; 4 Cruise, Dig. tit. 32, c. 16, §§ 66, 67; Ingram v. Ingram, 2 Atk. 88; Saunders v. Webber, 39 Cal. 287; Wilson v. Mason, 158 Ill. 304, 313; Singleton v. Scott, 11 Iowa, 589; Shelton v. Homer, 5 Metc. (Mass.) 462; Terrell v. McCown, 91 Tex. 231; Keim v. Lindley, 54 N. J. Eq. 418; Graham v. King, 50 Mo. 22; Hood v. Haden, 82 Vs. 588; Phillips v. Brown, 16 R. I. 279. Accordingly, the donee of a power, other than a general power, cannot exercise it by appointing to another a life estate, with power in that other to point in remainder. Wickersham v. Savage, 58 Pa. St. 365; Farwell, Powers, 442.

54 Sugden, Powers, 181, 195. See Coats' Ex'r v. Louisville & N. R. Co., 13 Ky. Law Rep. 557, 17 S. W. 564.