It is well settled that the instrument executing the power need not specifically refer to the power, provided it shows

In re Fowles' Will, 222 N. Y. 222, 118 N. E. 611.

52. Jones v. Southall, 32 Beav. 31; Sharpe v. McCall (1903) I Ir. 179; Curley v. Lynch, 206 Mass. 289, 92 N. E. 429; French v. Heywood, 214 Mass. 582, 102 N. E. 271. Compare the peculiar case, In re Fowles' Will, 222 N. Y. 222, 118 N. E. 611, and the comment thereon, 27 Yale Law Journ. 673.

53. See Freeland v. Pearson, L. R. 3 Eq. 658; Porter v. Thomas, 23 Ga. 467; Weir v. Smith, 62 Tex. 1; Hood v. Haden, 82 Va. 588.

54. Tomlinson v. Dighton, 1

P. Wms. 149; Re Jackson's Will

13 Ch. D. 189; Fairman v. Beal,

14 111. 244; Benesch v. Clark, 49 Md. 497.

55. Gruenewald v. Neu, 215 111. 132, 74 N. E. 101; Small v. Thompson, 92 Me. 539, 43 Atl. 509; Ford v. Ticknor, 169 Mass. 276, 47 N. E. 877; Keniston v. Mayhew, 169 Mass. 166, 47 N. E. 612; Evans v. Folks, 135 Mo. 397, 37 S. W. 126; Wooster v. Fitzgerald, 61 N. J. Law, 338, 39 Atl. 679; Terry v. Wiggins, 47 N. Y. 512; Mooy v. Gallagher, 36 R. I. 405, 90 Atl. 663; In re Thomson's Estate, Herring v. Barrow, L. R. 13 Ch. D. 144, 263.

Real Property.

[Sec. 324 an intent to execute it;56 but whether the donee of a power, in executing an instrument sufficient in form for the execution of the power, but not referring specifically thereto, intended to thereby execute the power, has been the subject of frequent litigation. It has occasionally been said that the intent to execute a power must appear in one of three ways, - either (1) by reference to the power; (2) by reference to the property which is the subject of the power; or (3) by reason of the fact that the instrument will be ineffectual unless considered as an execution of the power57 It has, on the other hand frequently been considered that the intent need not appear in one of these ways, but that it is to be ascertained, as in any other case, by a construction of the whole instrument, with reference to the circumstances under which it was executed.58

56. Sugden, Powers, 289; Story, Eq. Jur. Sec. 1062a; Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 357, 27 L. Ed. 962; Lee v. Simpson, 134 U. S. 572, 33 L. Ed. 1038; Young v. Sheldon, 139 Ala. 444, 36 So. 27, 101 Am. St. Hep. 44; O'Brien v. Flint, 74 Conn. 502, 51 Atl. 547; Goff v. Pensenshafer, 190 111. 200, 60 N. E. 110; Bullerdick v. Wright, 148 Ind. 477, 47 N. E. 931; Patterson v. Wilson, 64 Md. 193, 1 Atl. 68; Chase v. Ladd, 155 Mass. 417, 29 N. E. 637; Camphell v. Johnson, 65 Mo. 439; Drunsadow v. Wilde, 63 Pa. St. 170; Scott v. Bryan, 194 Pa. St. 41, 45 Atl. 135; Matthews v. Capshaw, 109 Tenn. 480, 72 S. W. 964, 97 Am. St. Rep. 854.

57. Farwell, Powers, 201; Doe d. Nowell v. Roake, 2 Bing. 497; Denn d. Nowell v. Roake, 6 Bing. 475; Hollister v. Shaw, 46

Conn. 248; Farlow v. Farlow, 83 Md. 118, 34 Atl. 837; Ridgely v. Cross, 83 Md. 161, 34 Atl. 469; Thorn v. Thorn, 101 Md. 444, 61 Atl. 193; Dick v. Harhy, 48 S. C. 516, 26 S. E. 900; Young v. Mutual Life Ins. Co., 101 Tenn. 311, 47 S. W. 428.

A reference to the instrument creating the power as the source of the donee's ability to dispose of it may, it seems, ordinarily be regarded as equivalent to a specific reference to the power. Goff v. Pensenhafer, 190 111. 200, 60 N. E. 110; Bullerdick v. Wright, 148 Ind. 477, 47 N. E. 931.

58. Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 357, 361, 27 L. Ed. 962; Lee v. Simpson, 134 U. S. 572, 33 L. Ed. 1038; Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479; Gindrat v. Montgomery Gas-Light Co., 82 Ala.

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 be regarded as an execution of the power, since otherwise it can have no operation.59

596, 60 Am. Rep. 769, 2 So. 327; Funk v. Eggleston, 92 111. 515, 34 Am. Rep. 136; Bevans v. Murray, 251 111. 603, 96 N. E. 546; South v. South, 91 Ind. 221, 46 Am. Rep. 591; Bullerdick v. Wright, 148 Ind. 477, 47 N. E. 931; Amory v. Meredith, 7 Allen. (Mass.) 397; Chase v. Ladd, 155 Mass. 417, 29 N. E. 637; Andrews v. Brumfield, 32 Miss. 107; Papin v. Piednoir, 205 Mo. 521, 104 S. W. 63; Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N. W. S03; Kimball v. Bible Soc, 65 N. H. 139, 23 Atl. 83-85; Johnston v. Knight, 117 N. C. 122, 23 S. E. 92; McCreary v. Bomberger, 251 Pa. St. 323, 31 Am. St. Rep. 760, 24 Atl. 1066; Scott v. Bryan, 194 Pa. St. 41, 45 Atl. 135; Moody v. Tedder, 16 S. C. 557.

In Hilton v. Dodge Lumber Co., 141 Ga. 653, 81 S. E. 1119, a conveyance of timber by a life tenant having power to cut timber was supported although there was no reference to such power, on the ground that the conveyance would be invalid if not an execution of the power. Such a power merely involves freedom from liability for waste, and it does not seem that the introduction of the doctrine of powers was necessary to support the conveyance.

59. Sugden, Powers, 289, 290; rule that a general devise will operate as an execution of the power when the testator owns no realty to which it could apply has, however, in England been decided66 to have no application to a will executed since the passage of the Wills Act, in view of the provision in such act making a will operate on after acquired property.67 And as regards general powers this statute specifically provides that a general devise shall not operate as an execution of such a power unless a contrary intention appears.68 In a number of states there are similar provisions, not usually restricted to general powers.69 In some states the same rule as that prescribed by these statutes has been adopted, without any legislative enactment, in regard to devises in general terms, such as a residuary devise;70 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.71