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.

signs," this involves an authority to assign, and it may be executed by an assignee.55

A power in the nature of a trust,-an imperative power, as explained above,—whether given to one personally or as trustee or executor, will be enforced by equity if the donee or one of the donees refuses to execute it, or dies without having done so, or in any other case of its nonexecution. Accordingly, the following statements in regard to the rights of persons, other than the original donee or donees, to execute the power, do not apply to such powers in trust.

Where a power, not a power in trust, is given to one who is not a trustee or executor, as in the case of an ordinary power of appointment, since the exercise of the power is within the donee's discretion, the power terminates if he fails to exercise it during his life, unless the instrument creating it otherwise provides, and equity will not cause its execution by some other hand, or, as it is usually expressed, equity will not aid the nonexecution of a power.57

A power given to a trustee, such as a power of sale, does not, in the absence of a special provision to that effect in its creation, pass to one to whom the trustee may convey

BB Sugden, Powers, 180.

56 Lewin, Trusts, 676; Perry, Trusts, §§ 248, 249, 505; Brown v. Higgs, 8 Ves. 561; Gibbs v. Marsh, 2 Metc. (Mass.) 243; Greenough v. Welles, 10 Cush. (Mass.) 571; Franklin v. Osgood, 14 Johns. (N. Y.) 527, affirming 2 Johns. Ch. (N. Y.) 1; Gossen v. Ladd, 77 Ala. 223; Druid Park Heights Co. v. Oettinger, 53 Md. 46; Dick v. Harby, 48 S. C. 516; Bailey, Petitioner, 15 R. I. 60; Robertson v. Gaines, 2 Humph. (Tenn.) 367; Stewart v. Stokes, 33 Ala. 494.

571 Chance, Powers, 688; Sugden, Powers, 588; Farwell, Powers, 266; 2 Story, Eq. Jur. § 1061; 1 Perry Trusts, §§ 248, 294; Piggot v. Penrice, Finch, Prec. Ch. 471, 5 Gray's Cas. 479; Tollet v. Tollet, 2 P. Wms. 489, 5 Gray's Cas. 480; Howard v. Carpenter, 11 Md. 259; Gilman v. Bell, 99 Ill. 144; Mitchell v. Denson, 29 Ala. 327; Lines v. Darden, 5 Fla. 51; Fronty v. Godard, 1 Bailey, Eq. (S. C.) 517; Brown v. Phillips, 16 R. I. 612.

the legal title; nor does it, in the absence of a showing of a contrary intention, pass, on his death, to his heirs, though the legal title so passes. 59 Even the fact that a power is given to a trustee and "his assigns" does not authorize him, by assignment, to transfer the power to another."

As to whether a power given to a trustee may be exercised, after his death or resignation, by one appointed in his place, a distinction is drawn. In cases in which, from the terms of the instrument creating the power, it appears that the power is attached to the office, and is not conferred upon the trustee named personally, it may be exercised by a substituted trustee; while, if there is a personal discretion involved in the exercise of the power, no one but the original trustee can act, and neither his assignee nor a trustee appointed by the court can exercise the power, unless the instrument creating the power, or the statute, otherwise provides.62

Administrator cum testamento annexo.

In case a sole executor, given a power of sale, refuses to act, resigns, or dies, the question arises whether the administrator cum testamento annexo can exercise the power.

58 Lewin, Trusts, 273, 684; 2 Perry, Trusts, § 503; Cooke v. Crawford, 13 Sim. 91; Saunders v. Webber, 39 Cal. 287.

591 Perry, Trusts, § 340; Loring, Trustees' Handbook (2d Ed.) 44, 46; Godefroi, Trusts (2d Ed.) 26.

60 Lewin, Trusts, 685; 2 Perry, Trusts, § 496. But see Giselman v. Starr, 106 Cal. 651, a case of a trustee to secure a debt.

612 Perry, Trusts, § 503; Druid Park Heights Co. v. Oettinger, 53 Md. 546; Freeman v. Prendergast, 94 Ga. 369; Boutelle v. City Sav. Bank, 17 R. I. 781; Safe Deposit & Trust Co. v. Sutro, 75 Md. 361; Bradford v. Monks, 132 Mass. 405.

821 Perry, Trusts, §§ 287, 503; Cole v. Wade, 16 Ves. 27; Doe d Gosson v. Ladd, 77 Ala. 223; Young v. Young, 97 N. C. 132; Edwards v. Maupin, 18 D. C. 39; Security Co. v. Snow, 70 Conn. 288; Gambell v. Trippe, 75 Md. 252. See, for a statute enabling a sub stituted trustee to act, Wilson v. Pennock, 27 Pa. St. 238.

Apart from statute, such administrator cannot exercise the power, unless it appears that the testator so intended."

In many of the states there is a statute defining the duties of an administrator c. t. a. These statutes vary considerably in language, and have been construed by the courts with little uniformity. Some of them apparently enable such administrator to execute any power of sale given to the original executor, unless, presumably, the will contains an express provision to the contrary;64 others enable him to execute such powers only if these latter are not of a discre tionary or personal character;65 and in one state, at least, it has been held that the statute does not give him any right to exercise such powers, they not being regarded as appertaining to the office of executor, but as being entirely distinct therefrom.66

(b) In case of joint donees.

As a general rule, where a power is given to two or more donees, they must all execute the power, unless the instru

68 2 Perry, Trusts, § 500; In re Clay, 16 Ch. Div. 3; Conklin v. Egerton's Adm'r, 21 Wend. (N. Y.) 429; Wills v. Cowper, 2 Ohio, 124; Compton v. McMahan, 19 Mo. App. 494; Hodgin v. Toler, 70 Iowa, 21; Lockwood v. Stradley, 1 Del. Ch. 298, 12 Am. Dec. 97; Tainter v. Clark, 13 Metc. (Mass.) 220; Jones v. Fulghum, 3 Tenn. Ch. 193.

64 See Steele's Ex'rs v. Moxley, 9 Dana (Ky.) 137; Shields v. Smith, 8 Bush (Ky.) 601; Venable v. Mercantile Trust & Deposit Co., 74 Md. 187; Bay v. Posner, 78 Md. 42; Saunders v. Saunders, 108 N. C. 327; Green v. Davidson, 4 Baxt. (Tenn.) 488; Kidwell v. Brummagim, 32 Cal. 436; Elstner v. Fife, 32 Ohio St. 358; Sandifer v. Grantham, 62 Miss. 412; Dilworth v. Rice, 48 Mo. 124; Evans v. Blackiston, 66 Mo. 437; Robinson v. Ostendorff, 38 S. C. 66; Jackman v. Delafield, 85 Pa. St. 381; Potts v. Breneman, 182 Pa. St. 295; Mosby's Adm'r v. Mosby's Adm'r, 9 Grat. (Va.) 584.

65 See Mitchell v. Spence, 62 Ala. 450; Hinson v. Williamson, 74 Ala. 280; Mott v. Ackerman, 92 N. Y. 539; Drummond's Adm'rs v. Jones, 44 N. J. Eq. 53; Naundorf v. Schumann, 41 N. J. Eq. 14. Compare Cohea v. Johnson, 69 Miss. 46; Bailey v. Brown, 9 R. I. 79. 66 Nicoll v. Scott, 99 Ill. 529; Bigelow v. Cady, 171 Ill. 229,