This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
44. Dunn v. Morse, 109 Me. 254, 83 Atl. 795. Ante, Sec. 317.
45. Pearce v. Gardner, 10 Hare 287; Cuff v. Hall, 1 Jur. (N. S.) 972; Kidwell v. Brummagim, 32 Cal. 436; Hale v. Hale 1:17 Mass. 168; Marsh v. Love, 42 N. J. Eq. 112,. 6 Atl. 889; Mott v. Acker-man,. 92 N. T. 539; Shalter & Ebling's Appeal, 43 Pa. St. 83, 82 Am. Dec. 552; Fahnestock v.
Fahnestock 152 Pa. St. 56, 34 Am. St. Rep. 623, 25 Atl. 313; Fredericks v. Kerr, 219 Pa. St. 365, 68 Atl. 835; Hallum - Silliman, 78 Tex. 347, 14 S. W. 797; Contra, Daly's Lessee v. James, 8 Wheat. (U. S.) 495, 5 L. Ed. C70; Richardson v. Sharpe, 29 Barb. (N. Y.) 222. And see Bakewell v. Ogden 2 Bush (Ky.) 265; Harlan v. Brown, 2 Gill. (Md.) 475, 41 Am. Dec. 435; Hemphill v. Pry, 183 Pa. St. 93, 38 Atl. 1020. 46. Se Smith v. Tyler, 21 111. 296; Muldro.v v. Fox, 2 Dana (Ky.) 74; Hoffman v. Hoffman, 66 Md. 568, 8 Atl. 460; Moores v. Moores, 41 N. J. Law 440; Morse v. Hackensack Sav. Bank, 47 N. J. Eq. 279, 12 L. R. A. 62, 20 Atl. 961; Ward v. Barrows, 2 Ohio St. 241; Swift's Appeal, 87 Pa. 502; Murdock v. Johnston, 7 Cold. (Tenn.) 605.
If the donee of a power has an estate in the land which might be affected by the exercise of the power, as occurs when a tenant in fee simple is given power to appoint to others in fee53 or a tenant for life is given power to grant leases in possession, the power is known
47. Digge's Cas. 1 Co. Rep. 173; Grange v. Tiving, 0. Bridgman, 111; Sugden, Powers, 49. This is changed in England by the Conveyancing Act of 1881 (section 52), which allows any donee of a power to release it by deed, or contract not to exercise it. This probably does not apply to a power in trust. Farwell, Powers, 13.
48. Hale, C. B., in Edwards v. Sleater, Hardres, 410, 415.
49. See per Kindersley, V. C, in Coffin v. Cooper, 2 Dr. & Sm.
50. Ante, Sec. 315, note 23.
51. West v. Berney, 1 Russ. & Mylne, 431; Sugden, Powers, 47; 24 Harv. Law Rev. at p. 516, article by Professor John C. Gray. See Hume v. Hord, 5 Gratt. (Va.) 374.
52. Albany's Case, 1 Co. Rep. 110b; Grange v. Tiving, O. Bridgman, 115; West v. Berney, 1 Russ. & Myl. 431.
53. Post, this section, note 65-66.
As a power "appendant" or "appurtenant," it being to some extent dependent on the estate of the donee. Such a power will be extinguished by an alienation of the donee's estate, to the extent to which the exercise of the power would otherwise derogate from the estate. In other words, one who has conveyed an estate to another cannot thereafter divest such estate, in whole or in part, by exercising a power.54 He may, however, freely exercise the power if he expressly retains that right in making the conveyance,55 as he may if his alienee consents thereto.56 And, as above indicated, the subsequent exercise of the power is invalid only in so far as it derogates from the estate conveyed by him.57
Where the donee of a power has an estate in the land, but this is not such that it could be affected by an exercise of the power, as when a tenant for life has power to appoint by will to his children, the power is said to be "in gross" or collateral. Such a power is not affected by an alienation of the donee's estate,
54. Alexander v. Mills, 6 Ch. App. 124; Hardaker v. Moor-house, 26 Ch. Div. 417; McFall v. Kirkpatrick, 236 111. 281. Columbia Trust Co. v. Christopher, 133 Ky. 335. 117 S. W. 943; Brown v. Renshaw, 57 Md. 67; Leggett v. Doremus, 25 N. J. Eq. 122.
And a like rule has been in England applied when there was an involuntary alienation of the donee's estate under the nk-rupt act. Doe v. Britain, 2 B. & Ald. 93; Simpson v. Bathurst, L. R. 5 Ch. 193; Hole v. Escott, 2 Keen, 444, 4 Myl. & Cr. 187. A view which is questioned by Professor Gray in 24 Harv. Law Rev. at p. 515, in view of the fact that in the analogous case of a sale under execution on a judgment, a power appendant is not extinguished, citing to this effect, Doe v. Jones, 10 B. & C. 459; Eaton v. Sanxter, 6 Sim. 517; Skeeles v. Shearly, 8 Sim. 153, 3 Myl. & Cr. 112; Leggett v. Doremus, 25 N. J. Eq. 122.
55. Long v. Rankin, Sugden, Powers, 899.
56. Alexander v. Mills, L. R. 6 Ch. 124; Lonsdale v. Lowther, (1900) 2 Ch. 687.
57. Jones v. Windwood, 3 Mees. & W. 653; Alexander v. Mills, L. R. 6 Ch. 124; Leggett v. Doremus, 25 N. J. Eq. 122. See Reid v. Gordon, 35 Md. 174.
One having a power in gross may, it has been held, extinguish it by a release,59 as may one having a power appendant or appurtenant.60 But a power in trust, that is, an imperative power, cannot be released, it seems.61 That a power is testamentary, that is, to be exercised by will does not, it has been decided, affect the right of the donee to release the power,62 the result being, as has been well pointed out,63 that although the intention of the creator of the power was that the destination of the property should not be established
58. West v. Berney, 1 Russ. & M. 431; Sugden, Powers, 46, 79; Learned v. Tallmadge, 26 Barb. (N. Y.) 443.
59. Horner v. Swann, T. & R. 430; Coffin v. Cooper, 2 Drew. & Sm. 365. 373; Palmer v. Locke, 15 Ch. D. 294; In re Ross (1904) 2 Ch. 348; Thorington v. Thoring-ton, 82 Ala. 489, 1 So. 716; Columbia Trust Co. v. Christopher, 133 Ky. 335, 117 S. W. 943; Langley v. Conlan, 212 Mass. 135, 98 N. E. 1064; Grosven-or v. Bowen, 15 R. I. 549, 10 Atl. 589; Atkinson v. Dowling, 33 S. Car. 414, 12 S. E. 93. In Coffin v. Cooper, 2 Drew. & Sm. 365, supra, doubts are expressed whether on principle one having a limited power of appointment should be able to extinguish it by release merely because he has an estate in the land, and like doubts are forcibly stated in the article by Professor Gray, before referred to, in 124 Harv. Law Rev. at p. 517 et seq. where he points out that the accepted rule is based on the obsolete doctrine of tortious conveyances. See also. 23 Harv. Law Rev. at p. 394.
In Norris v. Thomson, 19 N. J. Eq. 307, 20 N. J. Eq. 489, it is held that the donee of a power in gross cannot release it for his own benefit, citing Cunyng-hame v. Thurlow, 1 Russ. & Myl. 436, note, which latter case is however, apparently now overruled. See Farwell, Powers, 496.
60. Smith v. Houblon, 26 Beav. 482; In re Radcliffe (1892) 1 Ch.
61. Farwell, Powers, 13, Williams, Real Prop. 397; Dunne's Trusts, L. R. 1 Ir. 516; Saul v. Pattinson, 34 Wkly. Rep. 561.
62. Barton v. Briscoe, Jac. 603; In re Chambers, 11 Ir. Eq. R. 518; Chism v. Lipsett (1905) 1 Ir. R. 60; Thorington v. Thorington, 82 Ala. 489, 1 So. 716; Gros-venor v. Bowen, 15 R. I. 549, 10 Atl. 589.
63. Kindersley, V. C. in Coffin v. Cooper, 2 Drew. & Sm. 365; See Professor Gray's Article, 24 Harv. Law Rev. 523 et scq.
R. P.-70 until the donee's death, the latter is allowed to establish it during his life. And a mere covenant by the donee not to execute the power has been regarded as operating in equity as a release.64
- Merger. By the English authorities a power of appointment is not merged in a fee simple which is given to the donee of the power by the instrument creating the power, as in the case of an estate in fee simple limited to such uses as A may appoint, and in default of appointment to the use of A and his heirs, A being able, in such case, to dispose of the land either by the exercise of the power or the conveyance of his estate.65-66 In those states, however, such as New York, in which the statutes tend to regard one as having an estate in fee simple when he is given an absolute power of disposition which he may exercise for his own benefit67 the English view in this regard would not be accepted, and the power would in such case be regarded as non-existent.68
A power given to the owner of a particular estate, whether appendant or in gross, would ordinarily be extinguished by his acquisition of the fee simple, not so much on the theory of merger, as because the purpose of the creation of the power no longer exists.69