190. Powers may be created
191. Technical words of limitation are not required.
175 Phillips v. Brown, 16 R. I. 279, 15 Atl. 90; Brown v. Phillips, 16 R. I. 612, 18 Atl 249; Lee v. Simpson, 34 U. S. 572, 10 Sup. Ct 631; Funk v. Eg-gleston, 92 111. 515; Logan v. Bell, 1 C. B. 872.
176 See cases cited in note 175.
177 2 Washb. Real Prop. (5th Ed.) 694; Wright v. Tallmadge, 15 N. Y. 307.
178 Ricketts v. Railroad Co, 91 Ky. 221, 15 S. W. 182. See, also, Willis v. Martin, 4 Term R. 39.
179 1 Sugd. Powers, 243.
A power of appointment over land is created by a limitation, either inter vivos or by will, of the legal estate in the land, as an executory interest,-or by a corresponding limitation of the equitable estate,-to take effect in possession through the exercise of an authority or power given to some person by the instrument containing the limitation, or thereby reserved to the grantor or his successors.
Where land is limited by will, subject to a power of this class, an appointment under the power takes effect as an executory devise. But, as executory devises do not depend for their operation on the statute of uses, a power of appointment may be created by will, as well by a devise simply to the persons or for the purposes to be specified by the appointment as by a devise to uses to be declared by the appointment.180
Powers may be created by will or by deed, and any words which show an intention of the donor are sufficient, technical words as to the estates to be created by the power not being required.181 For example, a power to sell in general would give a power to sell a fee, if the donor had a fee.182
192. Powers are divided, with reference to the donee's relation to the land affected by the power, into(a) Powers appendant and in gross (p. 310).
(b) Powers collateral, or naked powers (p. 311).
193. Powers Appendant And In Gross-a power may be given to a donee who has some estate in the land in addition to the power. Such powers are
(a) Appendant when the power is to be executed wholly or in part out of the estate of the donee.
(b) In gross when the execution of the power does not affect the donee's estate.
180 Leake, Prop. in Land, 377.
181 Harris v. Knapp, 21 Pick. (Mass.) 412; Cherry v. Greene, 115 Ill. 591, 4 N. E. 257; Brant v. Iron Co., 93 U. S. 326.
182 North v. Philbrook, 34 Me. 532; Benescn v. Clark, 49 Md. 497; Liefe v. Saltingstone, 1 Mod. 1S9.
It is not necessary that the donee of a power have also an estate in the land on which the power is to operate, but he may have, and in such case the power is said to be connected or coupled with an interest. Unless he has some estate, he will not have a power coupled with an interest, although he does have an interest in the execution of the power.183 When the estates to be created by the execution of power must take effect out of the interest in the lauds held by the donee, the power is said to be appendant or appurtenant; for example, where one having a life estate is given a power to make leases which must take effect wholly or in part out of his own estate.184 But, when the execution of the power will not affect the donee's estate in the lands, the power is said to be in gross, as when the owner of a life estate has a power to create estates to begin after the termination of his estate.185
A power may be given to a donee who has no interest in the land apart from the power. Such powers are called powers collateral, or naked powers.
A power collateral, or a naked power, or a power unconnected with an interest, is a power given to a person who had no interest in the land at the time of the execution of the instrument creating the power, and to whom no estate is limited by that instrument.186
195. Powers are divided, with reference to the persons who may be appointees, into
(a) General powers (p. 312).
(b) Special powers (p. 312).
183 Hunt v. Rousmanier's Adm'rs, 8 Wheat. 174; Osgood v. Franklin. 2 Johns. Ch. (N. Y.) 1; Coney v. Sanders, 28 Ga. 511.
184 Wilson v. Troup, 2 Cow. (N. Y.) 195; Maundrell v. Maundrell, 10 Ves. 246.
185 Wilson v. Troup, 2 Cow. (N. Y.) 195; Thorington v. Thorington, 82 Ala. 489, 1 South. 716.
186 Taylor v. Eatman, 92 N. C. 601; Potter v. Couch, 141 U. S. 29G, 11 Sup. Ct 1005.
196. General Powers-under a general power, the donee can make any one he chooses an appointee.
A general power is one in which the donee is given a right to appoint the estates to any one he may choose. Such power is equal to the ownership of the fee, because the donee can convey a fee simple.187 It should be noted, however, that a general power may be held in trust; that is, the donee may have the power of conveying a fee simple, but the conveyance will be for the benefit of other persons.188 These are not called general powers, but powers in trust. Under a general power, any person may be an appointee. For instance, the donee may appoint himself, a husband may appoint his wife, and so on.189
197. Special Powers-under a special power, the donee can make only certain designated persons appointees. Special powers are
(a) Exclusive when the donee must select one out of a class, and appoint to him.
(b) Nonexclusive when the donee can appoint to all of the class of persons designated.
A special or particular power is one in which the appointment can be made to only certain specified persons or classes of persons.190 Under a particular power, the appointment may be to a trustee for the benefit of the appointee, but otherwise the donee is limited, in his appointment under such a power, to the persons or class designated.191 In such an instrument an authority to appoint to the children of the donor does not include the grandchildren,192 unless some special circumstances show that such must have been the intention; as, for instance, where there are no children living.193 A power to appoint "to relations" would include only those relatives who could take under the statute of distributions, but the word "issue" would include all descendants of the donor.194
187 Wright v. Wright, 41 N. J. Eq. 382, 4 Atl. 855; Com. v. Williams' Ex'rs, 13 Pa. St 29; Roach v. Wadbam, 6 East, 289.
188 Howell v. Tyler, 91 N. C. 207; Blanehard v. Blanchard, 4 Hun, 287.
189 2 Washb. Real Prop. (5th Ed.) 714; New v. Potts, 55 Ga. 420. But see Shank v. Dewitt, 44 Ohio St. 237, 6 N. E. 255.
190 Wright v. Wright, 41 N. J. Eq. 382, 4 Atl. 855. And see, as to powers under the New York statute, which establishes a new classification, Jennings v. Conboy, 73 N. Y. 230; Coleman v. Beach, 97 N. Y. 545.
191 Hood v. Haden, 82 Va. 588; Varrell v. Wendell, 20 N. H. 431; Stuyve-sant v. Neil, 07 How. Prac. (N. Y.) 16; In re Farncombe's Trusts, 9 Ch. Div. 652.
If the power is to select one or more of certain designated persons, and to appoint the whole estate to him, the power is said to be exclusive. But if part of the estate may be given to each of the persons named, or the power is only to determine the amount which each shall receive, the power is nonexclusive. For example, a power to appoint "amongst the testator's children" would be a nonexclusive power, and the donee would only have a discretion as to the amount which each should receive.195 Under a nonexclusive power, where a number of persons or a class are named as donees, if no appointment is made the court will give the estate to all the donees, in equal shares, according to the maxim that equality is equity.196 Until appointment, the uses revert to the grantor, unless otherwise provided,197 as would be the case when the estate is given to the donee for life, with a power of appointing the remainder.198
192 Horwitz v. Norris, 49 Pa. St. 213; Carson v. Carson, Phil. Eq. (N. C.) 57; Little v. Bennett, 5 Jones, Eq. (N. C.) 156.
193 Ingraham v. Meade, 3 Wall. Jr. 32, Fed. Cas. No. 7,045.
194 Drake v. Drake, 56 Hun, 590, 10 N. Y. Supp. 183; Glenn v. Glenn, 21 S. C. 308; Varrell v. Wendell, 20 N. H. 431.
195 Walsh v. Wallinger, 2 Russ. & M. 78; Gainsford v. Dunn, L. R. 17 Eq. 405. See for applications, Wilson v. Piggott, 2 Ves. Jr. 351; Ricketts v. Loftus, 4 Younge & C. 519; Paske v. Haselfoot, 33 Beav. 125. If only one child, the whole could be appointed to that child. Bray v. Bree, 2 Clark & F. 453. As to illusory appointments, see Burrell v. Burrell, Amb. 660; Butcher v. Butcher, 1 Ves. & B. 79.
196 Withers v. Yeadon, 1 Rich. Eq. Cas. (S. C.) 324; Harding v. Glyn, 1 Atk. 469; In re Phene's Trusts, L. R. 5 Eq. 346; Casterton v. Sutherland, 9 Ves. 445; Wilson v. Duguid, 24 Ch. Div. 244. See, also, Faulkner v. Wyn-ford, 15 Law J. Ch. 8.
197 Ante, p. 266. See Lambert v. Thwaites, L. R. 2 Eq. 151.
198 Ward v. Amory, 1 Curt. 419, Fed. Cas. No. 17,146; Burleigh v. Clough, 62 N. H. 267.
198. The execution of a power is subject to the following conditions:
(a) It must be by the donee or donees named (p. 314).
(b) It must be in the form provided (p. 315).
(c) It must be at the time required (p. 317).
(d) The defective execution of a special power will be aided in equity (p. 318).
(e) The execution of a power in trust may be compelled (p. 318).
(f) When the execution of a power is excessive, the excess will be void (p. 318).
Who may Execute a Power.
In general, no one can execute a power as donee unless he has capacity to transfer real estate; but it is held that an infant may execute a naked power in which he has no beneficial interest; that is, one which is to be exercised for the benefit of another.199 Such powers are called powers simply collateral. And a married woman may execute any power as to real estate without the consent of her husband; and, before the married woman's property acts, this was the usual mode of conferring upon a married woman a right to deal with her separate estate.200 Under a will creating powers, if no donees are named, the executors may execute the power.201 If two or more donees are named in the instrument creating the power, all must join in the execution,202 unless otherwise provided.
199 Thompson v. Lyon, 20 Mo. 155. But cf. In re Cardross' Settlement, 7 Ch. Div. 728.
200 claflin v. Van Wagoner, 32 Mo. 252; Rush v. Lewis, 21 Pa. St 72; Ladd v. Ladd, 8 How. 10.
201 Mandlebaum v. Mcdonell, 29 Mich. 78; Silverthorne v. Mckinster, 12 Pa. St. G7. Cf. Doyley v. Attorney General, 4 Vin. Abr. 485, pl 16, where a power was executed by the court
202 Shelton v. Homer, 5 Metc. (Mass.) 402; Wilder v. Ranney, 95 N. Y. 7; Hertell v. Van Buren, 3 Edw. Ch. (N. Y.) 20. Where executors are donees, less than all may execute if one or more refuse to act. Bonifaut v. Greenfield, Cro. Eliz. 80; Zebach v. Smith, 3 Bin. (Pa.) 69.