At common law no particular form of execution of a power was required. It might be by a simple writing.211 This, however, is now changed by statute in several states, and the execution must be by deed or will, according to the provisions of the instrument creating the power, and accompanied by the same formalities as are required for a conveyance of realty.212 The form prescribed by the instrument creating the power must be strictly observed.213 For instance, a power to be executed by deed cannot be appointed by will, nor one to be executed by will be appointed by deed during the donee's lifetime.214 The execution of a power by will is revocable at any time during the donee's life.215 If the first execution of a power is void, it may be disregarded, and there can be-another execution.216

203 Philadelphia Trust, etc., Co. v. Llppincott, 106 Pa. St 295; Franklin v. Osgood, 14 Johns. (N. Y.) 527; Lee v. Vincent, Cro. Eliz. 26; Houell v. Barnes, Cro. Car. 382; Lane v. Debenham, 11 Hare, 188.

204 Peter v. Beverley, 10 Pet 532, 563; Franklin v. Osgood, 14 Johns. (N. Y.) 527; Tainter v. Clark, 13 Metc. (Mass.) 220; Anon., 2 Dyer, 177a, pl. 32.

205 Franklin v. Osgood, 14 Johns. (N. Y.) 527; Gutman v. Buckler, 69 Md. 7, 13 Atl. 635; Parrott v. Edmondson, 64 Ga. 332.

206 Clark v. Tainter, 7 Cush. (Mass.) 567; Tainter v. Clark, 13 Metc. (Mass.) 222.

207 Howard v. Thornton, 50 Mo. 291; Bales v. Perry, 51 Mo. 449.

208 Graham v. King, 50 Mo. 22; Hood v. Haden, 82 Va. 588.

209 Singleton v. Scott, 11 Iowa, 589; Bales v. Perry, 51 Mo. 449.

210 Pardee v. Lindley, 31 Ill. 174; Strother v. Law, 54 Bl. 413; Druid Park Heights Co. of Baltimore City v. Oettinger, 53 Md. 46; Collins v. Hopkins, 7 Iowa, 463.

211 Ladd v. Ladd, 8 How. 10, 30; Christy v. Pulliam, 17 111. 59.

212 4 Shars. & B. Lead. Cas. Real Prop. 46; 1 Stim. Am. St. Law, § 1659.

In an instrument appointing an estate under a power an intention to execute the power must appear,217 but the power need not be recited or referred to.218 Many questions arise in considering wills, whether the testator has exercised powers of which he was the donee, or has merely disposed of his estates. For example, a devise of "all the estate which the testator has power to dispose of" would operate as an exercise of powers held by the testator.219 The question, however, being one of construction, cannot be gone into in detail, but a number of the cases will be found in the notes.220 A power will be held to be executed in any case where the instrument can operate in no other way; as where a testator has a power

213 Hacker's Appeal (Pa. Sup.) 15 Atl. 500. Cf. Morse v. Martin, 34 Beav. 500.

214 Moore v. Dimond, 5 R. L 121; Weir v. Smith, 62 Tex. 1; Porter v. Thomas, 23 Ga. 467.

215 1 Sugd. Powers, 461

216 1 Sugd. Powers, 355.

217 Blake v. Hawkins, 98 U. S. 315; Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1.479; Hutton v. Bankard, 92 N. Y. 295; South v. South, 91 Ind. 221.

218 Warner v. Insurance Co., 109 U. S. 357, 3 Sup. Ct. 221; White v. Hicks, 33 N. Y. 383; Munson v. Berdan, 35 N. J. Eq. 376; Roach v. Wadham, 6 East, 289.

219 Lee v. Simpson, 134 U. S. 572, 10 Sup. Ct 631; Cowx v. Foster, 1 Johns. & H. 30; Ferrier v. Jay, L. R. 10 Eq. 550; Bruce v. Bruce, L. R. 11 Eq. 371. See, also, Walker v. Mackie, 4 Russ. 76; Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479.

220 Funk v. Eggleston, 92 111. 515; Amory v. Meredith, 7 Allen (Mass.) 397; Williard v. Ware, 10 Allen (Mass.) 263; Bangs v. Smith, 98 Mass. 270; Cum-ston v. Bartlett, 149 Mass. 243, 21 N. E. 373; Bingham's Appeal, 64 Pa. St 845; Burleigh v. Clough, 52 N. H. 267; Maryland Mut Ben. Soc. v. Clen-dinen, 44 Md. 429; Hollister v. Shaw, 46 Conn. 248; Bilderback v. Boyce, 14 S. C. 528; Andrews v. Emmot, 2 Brown, Ch. 297; Lewis v. Lewellyn, Turn. & R. 104; Grant v. Lynam, 4 Russ. 292; Denn v. Roake, 6 Bing. 475;

§ 198) over certain land, but no estate therein, a devise of the land will be treated as an appointment under the power.221 Where another estate is limited until the power is executed, an appointment will put an end to such prior estate 222