The execution of a power may be excessive as to the object, as when, under a special power, estates are given to some who cannot

227 Schenck v. Ellingwood, 3 Edw. Ch. (N. Y.) 175; Bradish v. Gibbs, 3 Johns. Ch. (N. Y.) 523; Beatty v. Clark, 20 Cal. 11; Morgan v. Milman, 3 De Gex, M. & G. 24. See, however, Blove v. Sutton, 3 Mer. 237; Sayer v. Sayer, 7 Hare, 377, affirmed Innes v. Sayer, 3 Macn. & G. 606; Pepper's Will, 1 Pars. Eq. Cas. 436.

228 Barr v. Hatch, 3 Ohio, 527; Mutual Life Ins. Co. v. Everett, 40 N. J. Eq. 345, 3 Atl. 126; Clifford v. Clifford, 2 Vera. 379; Fothergil v. Fothergil, 1 Eq. Cas. Abr. 222, pl. 9; Jackson v. Jackson, 4 Brown, Ch. 462; Moodie v. Reid, 1 Madd. 516. See. also, Johnson v. Touchet, 37 Law J. Ch. 25.

229 Wilkes v. Holmes, 9 Mod. 485; Sergeson v. Sealey, 2 Atk. 412. Or want of a seal. Smith v. Ashton, Ch. Cas. 263. See, also, Piggot v. Penrice, Prec. Ch. 471.

230 Toilet v. Toilet, 2 P. Wms. 489; Sneed v. Sneed, Amb. 64.

231 Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533; Doe v. Ladd, 77 Ala. 223. 232 Sugd. Powers, 588. 233 Sugd. Powers, 258, 659.

§ 198) be donees;234 or it may be excessive as to amount of subject-matter, when more is given than the donee had power to appoint.235

A power to sell does not authorize the donee to mortgage, in the absence of expressions showing such intention.236 And a power to mortgage does not authorize a sale,237 but the mortgage may be in the usual form, and might be by a trust deed or a mortgage with a power of sale, if that was the usual mode of effecting a mortgage.238 A power to appoint a fee includes power to create lesser estates, because such a power is equal to ownership in fee, and the owner of a fee simple may create any estate he chooses.239 When the excess can be separated, the execution as to the remainder will be valid. For instance, in case of excessive execution as to the objects of the power, the estates appointed to those who could not take as donees would be void, and the others good.240 So a lease for 40 years under a power to lease for 21 would be good as a lease for 21 years, the excess only being void.241 If conditions are improperly annexed to the appointment, the conditions will be treated as void, and the appointment freed from them.242

234 Alexander v. Alexander, 2 Ves. Sr. 640; Sadler v. Pratt, 5 Sim. 632.

235 Commissioners of Knox Co. v. Nichols, 14 Ohio St 260. See for executions held good, Whitlock's Case, 8 Coke, 69b; Trollope v. Linton, 1 Sim. & S. 477; Talbot v. Tipper, Skin. 427; Thwayles v. Dye, 2 Vern. 80.

236 Green v. Claiborne, 83 Va. 386, 5 S. E. 376; Norris v. Woods, 89 Va. 873, 17 S. E. 552; Smith v. Morse, 2 Cal. 524. But see Lancaster v. Dolan, 1 Rawle (Pa.) 231; Zane v. Kennedy, 73 Pa. St. 182.

237 1 Sugd. Powers, 514.

238 Wilson v. Troup, 7 Johns. Ch. (N. Y.) 25; Jesup v. Bank, 14 Wis. 331; Bolles v. Munnerlyn, 83 Ga, 727, 10 S. E. 365. A power to mortgage will authorize a renewal of a previous mortgage. Warner v. Insurance Co., 109 U. S. 357, 3 Sup. Ct. 221.

239 Williams v. Woodard, 2 Wend. (N. Y.) 487; Hedges v. Riker, 5 Johns, Ch. (N. Y.) 163. But see Seymour v. Bull, 3 Day (Conn.) 388; Hubbard v. Elmer, 7 Wend. (N. Y.) 446.

240 2 Sugd. Powers, 66. Proper appointees will take the whole. Alexander v. Alexander, 2 Ves. Sr. 640; Sadler v. Pratt, 5 Sim. 632; In re Kerr's Trusts, 4 Ch. Div. 600.

241 Sinclair v. Jackson, 8 Cow. (N. Y.) 543; Powcey v. Bowen, 1 Ch. Cas. 23; Campbell v. Leach, Amb. 740.

242 2 Sugd. Powers (Ed. 1856) 84; Blomfield v. Eyre, 5 C. B. 713. See, however, In re Brown's Trust, L. R. 1 Eq. 74.

Same - rights Of Creditors

199. Creditors of the donee of a power have no rights in the power, except: Exception-when the power is general, creditors may enforce their claims against a voluntary appointee.

200. Creditors of the appointee may enforce their claims against his estate after appointment to him, but cannot compel the execution of the power, except: Exception-in some states, by statute, creditors may compel the execution of a beneficial power.

The donee of a power has no estate in the lands subject thereto, and his interest can be reached by his creditors only in equity.243 Under a special power in which the donee has no beneficial interest, his creditors have no rights.244 Most cases hold that creditors of the donee may levy on lands in the hands of a voluntary appointee under a general power,245 though the correctness of the rulings has been doubted.246 Creditors of the appointee under a power may levy on the lands after the power is executed, but they cannot compel an execution, even in cases of special powers.247 But in several states, including New York, Michigan, Wisconsin, and Minnesota, it is provided by statute that the execution of a beneficial power-that is, a special power under which the debtor could compel an appointment in his favor-may be compelled by the creditors of the one entitled to the appointment.248

243 Holmes v. Coghill, 12 Ves. 206.

244 Johnson v. Cushing, 15 N. H. 298.

245 Clapp v. Ingraham, 120 Mass. 200; Knowles v. Dodge, 1 Mackey (D. C.) 66; Wales' Adm'r v. Bowdish's Ex'r, 61 Vt. 23, 17 Atl. 1000; Lassells v. Cora-wallis, 2 Vern. 465; Holmes v. Coghill, 12 Ves. 206.

246 Com. v. Duffield, 12 Pa. St. 277; Thorpe v. Goodall, 17 Ves. 388.

247 2 Sugd. Powers, 102.

248 Schars. & B. Lead. Cas. Real Prop. 28; 1 Stim. Am. St. Law, § 1657.

§ 201)