in a number of decisions in this country, it has been held that the intent need not appear in one of these ways, but that it is to be determined, as in any other case, by a construction of the whole instrument, with reference to the circumstances under which it was executed.90

If the donee of a power over certain land makes a conveyance or devise of the specific land, and he has no estate in the land on which the conveyance or devise can operate, it will take effect as an execution of the power, since otherwise it can have no operation.o1

Moore, 95 Va. 729; Young v. Mutual Life Ins. Co., 101 Tenn. 311; Dick v. Harby, 48 S. C. 516; Hollister v. Shaw, 46 Conn. 248; Farlow v. Farlow, 83 Md. 118; Ridgely v. Cross, 83 Md. 161.

90 Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479, 5 Gray's Cas. 421; Amory v. Meredith, 7 Allen (Mass.) 397, 5 Gray's Cas. 430; Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 361; Lee v. Simpson, 134 U. S. 572; Blake v. Hawkins, 98 U. S. 315; Bangs v. Smith, 98 Mass. 270; Chase v. Ladd, 155 Mass. 417; Funk v. Eggleston, 92 Ill. 515, 34 Am. Rep. 136; Goff v. Pensenhafer, 190 Ill. 200; Gindrat v. Montgomery Gas-Light Co., 82 Ala. 596; Andrews v. Brumfield, 32 Miss. 107; Moody v. Tedder, 16 S. C. 557; Arlington State Bank v. Paulsen, 57 Neb. 717; Kimball v. Bible Soc., 65 N. H. 139; Bredell v. Collier, 40 Mo. 287; Johnston v. Knight, 117 N. C. 122; Scott v. Bryan, 194 Pa. St. 41; McCreary v. Bomberger, 151 Pa. St. 323; Bullerdick v. Wright, 148 Ind. 477; South v. South, 91 Ind. 221, 46 Am. Rep. 591.

91 Sugden, 289, 290; Clere's Case, 6 Coke, 17b, 5 Gray's Cas. 333; Scrope's Case, 10 Coke, 143b; Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479, 5 Gray's Cas. 421; Taylor v. Eatman, 92 N. C. 601; Keefer v. Schwartz, 47 Pa. St. 507; Drusadow v. Wilde, 63 Pa. St. 170; Scott v. Bryan, 194 Pa. St. 41; Weir v. Smith, 62 Tex. 1; Hood v. Haden, 82 Va. 588; Hanna v. Ladewig, 73 Tex. 37.

This rule has been applied in the case of a conveyance by an executor having power of sale to his vendee. Dick v. Harby, 48 S. C. 516; Matthews v. McDade, 72 Ala. 377; Terry v. Rodahan, 79 Ga. 278, 11 Am. St. Rep. 420; Faulk v. Dashiell, 62 Tex. 642, 50 Am. Rep. 542.

It is provided by statute in some states that an instrument executed by the donee of the power which he would have no right to execute except under the power shall be deemed a valid execution of the power. 4 Sharswood & B. Lead. Cas. Real Prop. 63; 1 Stimson's Am. St. Law, § 1659.

If one has an estate in the land, and also a power over the same land, a devise by him of such land,92 or a conveyance thereof,93 will generally be considered as affecting his estate therein only, and not as executing the power. But though the donee of the power also has an estate in the land, a conveyance which calls for a larger estate than that which he has will usually be regarded as an execution of the power, especially in favor of a purchaser for value, to whom he is under an obligation to make the conveyance effectual for the full estate conveyed. Thus, the conveyance of a fee by one who has a life estate, with power over the fee, will be regarded as an execution of the power.94 In such a case the fact that the donee of the power believes that he is conveying his own property when he conveys a fee, and is not aware that he has a power merely as to the fee, is immaterial.95

In the case of a conveyance or devise, not referring to the power or to the particular land, but using general expres

92 Clere's Case, 6 Coke, 17b, 5 Gray's Cas. 333; Den v. Roake, 6 Bing. 475, 5 Gray's Cas. 410.

93 Bell v. Twilight, 22 N. H. 500; Jones v. Wood, 16 Pa. St. 25; Phillips v. Brown, 16 R. I. 279; Payne v. Johnson's Ex'rs, 95 Ky. 175; Daniel v. Felt, 100 Fed. 727; Towles v. Fisher, 77 N. C. 437; Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324; Robeno v. Marlatt, 136 Pa. St. 35; Lardner v. Williams, 98 Wis. 514.

94 Sugden, Powers, 347; Farwell, Powers, 267; Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 357; Band v. Boucher, 60 Miss. 326; McMillan v. Deering, 139, Ind. 70; Gingrat v. Montgomery Gas-Light Co., 82 Ala. 596; Bishop v. Remple, 11 Ohio St. 282; Hall v. Preble, 68 Me. 100; Walke v. Moore, 95 Va. 729; Campbell v. Johnson, 65 Mo. 439, overruling Owen v. Switzer, 51 Mo. 322; Guarantee & Trust Co. v. Jones, 103 Tenn. 245; Runkenberger v. Meyer, 155 Ind. 152; Goff v. Pensenhafer, 190 Ill. 200. But see, as suggesting a contrary view, Towles v. Fisher, 77 N. C. 437; Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324; Lardner v. Williams, 98 Wis. 514; New England Mortgage Security Co. v. Buice, 98 Ga. 795; Scott v. Bryan, 194 Pa. St. 41; Ridgely v. Cross, 83 Md. 161.

95 Sugden, Powers, 348; Young v. Mutual Life Ins. Co., 101 Tenn. 311; Terry v. Rodahan, 79 Ga. 278, 11 Am. St. Rep. 420; Allison v. Kurtz, 2 Watts (Pa.) 185.

sions descriptive of land or interests therein, such as "all my real estate," or "all the residue of my real estate," or "my leasehold property," if the grantor or testator owns no interests in land to which these expressions can refer, the instrument will be regarded as an execution of the power.98 If, however, the donee of the power owns other interests in lands to which these expressions can be referred, the rule is established in England that such a general conveyance or devise does not show an intention to execute the power, since this is not necessary to make it effectual; and the same rule has been adopted in a number of decisions in this country.97 far as regards the execution of general powers by will, this rule was changed in England by the Wills Act, providing that a general devise shall operate as an execution of a power, unless a contrary intent appear; and in a number of states. in this country there are similar provisions, not restricted to general powers. In some states the same rule as that

98

So

Sugden, Powers, 318; Standen v. Standen, 2 Ves. Jr. 589, 5 Gray's Cas. 399; Lewis v. Lewellyn, Turn. & R. 104, 5 Gray's Cas. 405; Grant v. Lynan, 4 Russ. 292, 5 Gray's Cas. 409; Smith v. Curtis, 29 N. J. Law, 352; Jones v. Wood, 16 Pa. St. 42; Mory v. Michael, 18 Md. 227; Keefer v. Schwartz, 47 Pa. St. 503. But as to the possible effect on this rule of statutes providing that a will shall pass after-acquired lands, see Wooster v. Cooper, 59 N. J. Eq. 204.

In the case of personal chattels, the question whether there is any property at the time of testator's death from which a bequest of a certain sum can be paid cannot, by the English decisions, be considered to determine whether the bequest was an execution of the power. Farwell, 229; Jones v. Tucker, 2 Mer. 533, 5 Gray's Cas. 403; Grant v. Lyman, 4 Russ. 292, 5 Gray's Cas. 409. Contra, White v. Hicks, 33 N. Y. 383.

97 Sugden, Powers, 312; Den v. Roake, 6 Bing. 475, 5 Gray's Cas. 410; Hollister v. Shaw, 46 Conn. 248; Bingham's Appeal, 64 Pa. St. 345; Patterson v. Wilson, 64 Md. 193; Meeker v. Breintnall, 38 N. J. Eq. 345; Cotting v. De Sartiges, 17 R. I. 668; Bilderback v. Boyce, 14 S. C. 528; Mason v. Wheeler, 19 R. I. 21; Harvard College v. Balch, 171 Ill. 275.

98 1 Vict. c. 26, § 27; Farwell, 227, 235; 1 Stimson's Am. St. Law,

prescribed by these statutes has been adopted, without any legislative enactment, in regard to devises in general terms, such as a residuary devise; and in jurisdictions where it is considered that the intent of the testator is to be determined by a construction of the whole will, with reference to the circumstances under which it was executed, the English rule may be modified in particular cases.100

284. Time of execution.

The question as to the time for the execution of a power, and the effect of a provision in regard to such time, is one of the construction of the instrument creating the power. In the case of a power of sale given to an executor or trustee, a provision that it shall be exercised within a certain number of years is usually regarded as directory, and not mandatory, and hence as not invalidating a sale after that time.101 On the other hand, when the power is not to be exercised until a future event or a future time, the power being, in effect, previously nonexistent, a previous exercise thereof is generally void.102 So, as a general rule, a power

1659; 4 Sharswood & B. Lead. Cas. Real Prop. 62. See Lockwood v. Mildeberger, 159 N. Y. 181; Machir v. Funk, 90 Va. 284; Payne v. Johnson's Ex'rs, 95 Ky. 175; Herbert's Guardian v. Herbert's Ex'r, 85 Ky. 134.

9 Amory v. Meredith, 7 Allen (Mass.) 397, 5 Gray's Cas. 430; Sewall V. Wilmer, 132 Mass. 131; Cumston v. Bartlett, 149 Mass. 243; Hassam v. Hazen, 156 Mass. 93; Johnston v. Knight, 117 N. C. 122; Emery v. Haven, 67 N. Y. 503.

100 See Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479, 5 Gray's Cas. 421. And see cases cited ante, note 90.

101 Pearce v. Gardner, 10 Hare, 287; Cuff v. Hall, 1 Jur. (N. S.) 972; Shalter & Ebling's Appeal, 43 Pa. St. 83, 82 Am. Dec. 552; Hale v. Hale, 137 Mass. 168; Hallum v. Silliman, 78 Tex. 347; Marsh v. Love, 42 N. J. Eq. 112; Mott v. Ackerman, 92 N. Y. 539. Contra, Daly's Lessee v. James, 8 Wheat. (U. S.) 495; Richardson v. Sharpe, 29 Barb. (N. Y.) 222. And see Hemphill v. Pry, 183 Pa. St. bys; Bakewell v. Ogden, 2 Bush (Ky.) 265.

102 Want v. Stallibrass, L. R. 8 Exch. 175; Booraem v. Wells, 19 N.

of sale given to a person, such as an executor or trustee, to sell land in which another has a life estate, cannot be exercised during the latter's life.103 In such a case, however, the power may be exercised before the time named, if all the parties interested are sui juris and consent thereto; and this is consistent with the substantial purpose of the creator of the power.104 If the postponement of the time of sale is merely for the benefit of the life tenant, the latter's assent thereto will, it has been sometimes decided, be sufficient to validate the sale,105 though in other cases the right to sell with the consent of the life tenant has been expressly negatived.100

J. Eq. 87; Henry v. Simpson, 19 Grant Ch. 522; Jackson v. Ligon, 3 Leigh (Va.) 161; Raper v. Sanders, 21 Grat. (Va.) 60; Loomis v. McClintock, 10 Watts (Pa.) 274; Ruggles v. Tyson (Wis.) 79 N. W. 766, 104 Wis. 500. But see Snell's Ex'rs v. Snell, 38 N. J. Eq. 119. By the English cases, a distinction is taken between cases in which the power does not arise until the future time or event, and those in which it is called into existence immediately, but is not to be exercised till a future contingency, a premature exercise of the power in the latter case being valid. Farwell, Powers, 144, 147.

103 Co. Litt. 113; Sugden, Powers, 266; Want v. Stallibrass, L. R. 8 Exch. 175; Dohoney v. Taylor, 79 Ky. 124; Jackson v. Ligon, 3 Leigh (Va.) 161; Booraem v. Wells, 19 N. J. Eq. 87; Hampton v. Nicholson, 23 N. J. Eq. 423.

104 Sugden, Powers, 266; Kilpatrick v. Barron, 125 N. Y. 751; Want v. Stallibrass, L. R. 8 Exch. 175.

105 Truell v. Tysson, 21 Beav. 439; Snell's Ex'rs v. Snell, 38 N. J. Eq. 119; Gast v. Porter, 13 Pa. St. 533; Hamlin v. Thomas, 126 Pa. St. 20.

106 Want v. Stallibrass, L. R. 8 Exch. 175; Henry v. Simpson, 19 Grant Ch. 522; Davis v. Howcott, 21 N. C. 460; Jackson v. Ligon, 3 Leigh (Va.) 161; Raper v. Sanders, 21 Grat. (Va.) 60. And see Lewin, Trusts (10th Ed.) 492, and Sugden, Powers, 266, in which latter work it is said that since the power cannot, by the terms of its creation, be exercised till the life tenant's death, the persons in whom the fee is vested till the exercise of the power must join, in order to confer title.