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 .
In discussing the effect of the Statute of Uses, reference was made to the fact that, by means thereof, legal estates could be created to spring up or shift in the future, not according to limitations in the instrument creating them, but according to the appointment or direction of a person named in such instrument. Similarly, land may be devised to vest in the future according to the appointment or direction of a person named in the will. In both these cases there is, in effect, an executory interest created in favor of a per11. Suden, Powers, 45.
12. Williams, Real Prop. (21st Ed.) 120.
13. Post Sec. 656.
14. Act 1898, Sec. 70.
15. 2 Woerner, Administration, Sec. 337. See post Sec. 552.
16. Freeman, Executions, chs. 19, 24.
Son to be named in the future. The person to whom authority to name the taker is given is said to have a power of appointment, and, upon the making of the appointment by him, the person in whose favor he exercises the power takes an interest in the land as if there had been an executory limitation in his favor in the original instrument.17 Thus, one may convey land to A and his heirs to such uses as A (or B, or even the grantor himself) may appoint, and, upon the making of the appointment in favor of C and his heirs, the title vests in C in fee simple, by way of springing use, as if the original limitation had been to him, the fee resulting, until appointment, to the grantor. And so one may devise land to such person, and for such an interest, as A may appoint, and, on the making of the appointment in favor of B and his heirs, the fee simple vests in B, as by an executory devise to him.18 While a power thus operating under the Statute of Uses or of wills necessarily takes effect as an executory limitation, in the sense that it could not, or probably could not,19 take effect at common law as in the land which will bind the equitable as well as the legal interest. In these cases the grant of the power relieves the legal owner to that extent from the effect of the equitable rules which prevent him from transferring his legal title free from the claims of the beneficiaries.22 These powers frequently occur in the case of grants or devises to trustees, with powers of sale or to make leases. A devise of land to executors, with power in them to sell, is an instance of a power of this class, they holding the legal title as trustees.
17. Sugden, Powers, (8th Ed.) 31, 147, 196; Co. Litt. 271b, Butler's note VII 1; Leake, Prop. in Land, 114; Christy v. Pulliam, 17 111. 59; Conner v. Waring, 52 Md. 724; Bradish v. Giggs, 3 Johns. Ch. (N. Y.) 523; Norfleet v. Hawkins, 93 N. C. 392.
18. A power of appointment given by will is frequently spoken of as a common-law power or authority. See Sugden, Powers, 45; Leake, Prop. in Land, 377. The expression "common law" power is in such cases evidently used in contradistinction to a power arising by force of the Statute of Uses. See Farwell, (3rd Ed.) Powers, 200; Leake, op. cit. 377. A power created by will takes effect under the Statute of Wills (Sugden, 199; Chance, Powers, Sec. 5; Townesend v. Wal-ley, Moore, 341), and is not, except in the case of a power to executors to sell, which may be distinguished as having been recognized at common law, any more a common-law authority, strictly speaking, than an executory devise is a common-law interest. Sugden calls even a statutory power a common-law authority. Sugden, Powers, 45.
19. But see Chance v. Powers, Sec.Sec. 5-11, for suggestions as to the possible validity, at common law, of a limitation by way of remainder in favor of persons to be named.
[Sec. 314 creating a remainder, the interest created by force thereof frequently resembles a contingent remainder rather than an executory interest, in so far as, by the instrument by which the power is created, there is also created a particular estate, not defeasible by the exercise of the power. For instance, if a life estate is given to A with a power to dispose of the land at A's death, there is in effect a possibility of an estate, in favor of persons not yet ascertained, the vesting of which estate will not divest the particular estate previously limited, and cannot be deferred until an interval after the death of the life tenant. There is in effect a gift to A for life with remainder to such persons as A may appoint.20