186. A power is an authority to create some estate in lands, or a charge thereon, or to revoke an existing estate in the same way that the owner, granting the power, might himself do.
161 2 Bl. Comm. 209; Miller v. Miller, 10 Metc. (Mass.) 393; Cook v. Hammond, 4 Mason, 467, Fed. Cas. No. 3,159.
162 2 Washb. Real Prop. (5th Ed.) 803; West v. Williams, 15 Ark. 682.
163 Preston v. Carr, 29 N. H. 453; Doe v. Roe, 2 Har. (Del.) 103; Cook v. Hammond, 4 Mason, 467, Fed. Cas. No. 3,159.
164 Barnitz's Lessee v. Casey, 7 Cranch, 456; Ackless v. Seekright, 1 111. 76; Medley v. Medley, 81 Va. 265.
§§ 187-189) powers. 307
187. The one who creates a power is called the donor.
188. The one to whom a power is given is called the donee.
189. The one for whose benefit the power is exercised is called the appointee.
In addition to the powers above defined, which are usually called simply powers, we have "common-law powers," such as powers given by a will to executors to sell land; "statutory powers," which are au thorities conferred by legislative act; and "powers of attorney," to be subsequently considered.165 Simple powers over real estate are used principally in limiting family settlements, and are seldom employed in the United States. In New York, Michigan, and some other states, powers, as they exist at common law, have been abolished by statute, and another system, in many respects prac tically the same, has been established.166 And in these states., though trusts have been abolished, limitations in the form of trusts may take effect as powers.167
A power is simply a right to create or change an estate in lands.168 Before the statute of uses, lands could be conveyed to be held to such uses as the grantor might declare; and, after the statute, such a right to declare the uses of land was called a power,169 and the uses so declared were executed by the statute, and took effect as if they had been limited in the original instrument creating the power.170 But if a limitation is in the form, "to and to the use of A., to such uses as he may appoint," or "to A., to the use of A.," etc., the uses which he may appoint will not be executed by the statute, on the principle that the statute will not execute a use upon a use.171 The instrument creating the power does not generally limit the uses, but merely gives an authority to create them.
165 See post, p. 431.
166 1 stim. Am. St Law, §§ 1650-1659.
167 1 Stim. Am. St. Law, § 1703(8).
168 Burleigh v. Clough, 52 N. H. 267; Rodgers v. Wallace, 5 Jones (N. C.) 181.
169 Harrison v. Battle, 1 Dev. & B. Eq. (N. C.) 213.
170 Rodgers v. Wallace, 5 Jones (N. C.) 181; Smith v. Garey, 2 Dev. & B. Eq. (N. C.) 42; Leggett v. Doremus, 25 N. J. Eq. 122.
171 See ante, p. 254.
The only instances of powers over land that have effect by the common law, or "common-law powers," are powers given by will to the testator's executors to sell his real estate in order to raise money for the payment of his debts, or of legacies given by the will; the land not being devised for the purpose to the executors, but devolving, until the power is exercised, upon the testator's heir at law. Such directions to executors were recognized in the early law as valid in wills of lands, which, by custom, were devisable at common law; and after the extension of the testamentary power by statute, in the reign of King Henry VIII., their validity in wills generally was established. Upon an alienation in pursuance of such a power, the estate passes to the alienee by force of the will, as if he had been named therein as devisee, the exercise of the power being merely the nomination of the person who is to take the estate under the will. In this respect a mere power of sale given to executors differs from a devise of land to the executors in trust for sale; for under such a devise the testator's estate in the land vests in the executors as trustees, and the purchaser takes by the conveyance from them.172
Powers Distinguished from Estates.
Powers are distinguished from estates, In that the former are mere rights over land, and not interests in it.173 A power may, however, be coupled with an interest in the land.174 The owner of an estate has power to alienate it, in connection with the other incidents of the estate; but the owner of a power has merely a right to alienate, without any other right A power and an estate in the same land may co-exist. For example, a man may be given an estate for life, with a general power of alienation, and in default of appointment a remainder in fee. In such case he could transfer a fee simple in the lands, either by the exercise of the power, or out of the estate which he owns, in default of appointment.175 In wills it is many times difficult to ascertain whether a testator meant to dispose of his estate, or to exercise a power which he had in the lands. In such cases the testator's intention governs, as far as it can be ascertained.176 Under deeds the same difficulty seldom arises, because technical words are used in limiting the estates. These are, however, questions of construction of instruments, and are not properly part of the law of real property.
172 Edw. Prop. in Land (2d Ed.) 203.
173 Eaton v. Straw, 18 N. H. 320; Sewall v. Wilmer, 132 Mass. 131. 174 Peter v. Beverly, 10 Pet. 532; Osgood v. Franklin, 2 Johns. Ch. (N. Y.) 1; Shearman v. Hicks, 14 Grat (Va.) 96.
Powers of Revocation and Appointment.
Powers are generally divided into powers of appointment, by which estates may be created; powers of revocation, by which estates may be terminated or reduced; and powers of appointment and revocation, which include both rights. But the distinction is hardly of much value, since a power to limit new uses implies the power to revoke the old ones, and powers of revocation, unless a contrary intention expressly appears, include by implication powers to create new estates in place of those defeated.177 A power of revocation may be reserved, in limiting estates, to revoke the estates created either wholly or in part, or part at one time and part at another.178 Limiting new uses under a power of revocation or appointment is a revocation of the old estates, without any special words to that effect. When uses are revoked, and new ones appointed, there cannot be another revocation, unless a power to do so is reserved in the instrument limiting the uses.179