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 .
The exercise of a power, strictly so called, lies entirely in the discretion of the person to whom it is given, and no court, not even a court of equity, will compel its execution.31 Nor will the donee's execution of the power be disturbed as being an improper exercise of his discretion, provided it is in harmony with the power itself, and is not accompanied by fraud or bad faith on his part,32 or unless, according to some cases, the exercise of the power, being a power of sale, is arbitrary or capricious.33 So in the case of a power to distribute property among a particular class, such as children, the courts will not ordinarily undertake to control the distribution.34 A distinction is made in this connection, however, between a mere power and what is known as a power "in the nature of a trust," or a power "coupled with a trust," which exists when, by the instrument creating the power, the execution thereof is made an, imperative duty, and is therefore regarded in equity as a trust to be carried out by the person to whom it is given. The nonexecution of such a power will be aided in equity, on the same principle on which courts of equity will enforce any trust; and if the donee refuses to exercise it, or dies without exercising it, the court will exercise it, so far as it is able to do so.35
31. Sugden, Powers, 588; Far-well, Powers 9; Story, Eq. Jur., Sec. 1061; Lines v. Darden, 5 Fla. 51; Brown v. Phillips, 16 R. I. 612. But as to the effect of a contract as justifying the court in intervening to enforce performance of the contract by the execution of the power, see Taussig v. Reel, 134 Mo. 530, 34 S. W. 1104 (power of leasing).
32. Crozier v. Hoyt, 97 111. 23; Hawthorn v. Ulrich, 207 111. 430, 69 N. E. 885; Stokes v. Stokes, 66 Miss. 456, 6 So. 155; Hamilton v. Mound City Mut. Life Ins. Co., 6 Lea. (Tenn.) 402; Dixon v. Mc-Cue, 14 Grat. (Va.) 540.
33. Dickey v. Barnstable, 122 Iowa, 572, 98 N. W. 368; Procter v. Heyer, 122 Mass. 525. And see cases cited post, this section, note 43.
34. Hawthorn v. Ulrich, 207 111. 430, 69 N. E. 885; McCamant v. Nuckolls, 85 Va. 331, 12 S. E. 160; Carney v. Kain, 40 W. Va. 758, 23 S. E. 650; Post, Sec. 328.
35. Sugden, Powers, 558; 2 Story, Eq. Jar., Sec. 106; Muldrow the only class of powers which have been regarded as powers in the nature of a trust appear to be powers of sale given to one who is not given the legal title, with specific directions to apply the proceeds for the benefit of individuals named.39
In a number of cases, where power had been given to appoint in favor of members of a class, or to select members of the class for the purpose, the courts have regarded the power as a power in trust, which, on the failure of the donee to exercise it, the court will exercise in favor of all the members of the class.36 By other cases the same result is effectuated by the implication of a gift to the members of the class in default of execution.37 Apart from such cases of a power in favor of the members of a class, and cases where a trustee is given a power of sale in imperative terms,38 v. Fox, 2 Dana. (Ky.) 74; Gibbs v. Marsh, 2 Mete, (Mass.) 243; Greenough v. Wells, 10 Cush. (Mass.) 571; Lucas v. Lockhart, 10 Am. & M. (Miss.) 466.
"It is perfectly clear that where there is mere power of disposing, and that power is not executed, this court cannot execute it. It is equally clear that where-over a trust is created, and the execution of that trust fails by the death of the trustee or by accident, this court will execute the trust * * * But there are not only a mere trust and a mere power, but there is also known to this court a power which the party to whom it is given is intrusted and required to execute; and with regard to that species of power the court consider it as partaking so much of the nature and qualities of a trust that, if the person who has that duty imposed upon him does not discharge it, the court will, to a certain extent, discharge the duty in his room and place." Lord El-don, in Brown v. Higgs, 8 Ves. 570.
The opinion has been expressed by high authority (Professor John C. Gray in 25 Harv. Law Rev. at p. 1), that the doctrine of powers in trust should be confined to cases in which the donee of a legal estate is given a power to be exercised out of such estate, and that when one is given a power to be exercised in favor of a particular class in derogation of a title vested in another, the interests of such class are to be protected on the theory of an implied gift in default of appointment (Post Sec. 330) rather than on the theory that the power is a power in trust.
36. See Flint v. Spurr, 17 B. Mon. (Ky.) 499; Smith v. Floyd, 140 N. Y. 337, 35 N. E. 606; Dominick v. Sayre, 3 Sandf. Ch. (N. Y ) 555; Withers v. Yeadon, 1 Rich. Eq. (S. C.) 324; Atkinson v. Dowling, 33 S. Oar. 414; Mil-hdllen's Admr. v. Rice, 13 W. Va. 510, 543; Derse v. Derse, 103 Wis. 113, 79 N. W. 44; Farwell, Powers, 525.
37. Post, Sec. 330.
38. Post, this section, note 43a.
Occasionally the statute expressly requires that any sale made by an executor shall be approved by the probate or other court,40 and the effect of such a requirement is to control any discretion, intended to be vested in the executor as regards a sale.41 Such a statute has been held not to apply when the power was conferred on the person named as executor otherwise than in an executorial capacity.42
In the case of a power of sale given to a trustee, which is discretionary in its terms, equity will not control his exercise of discretion, in the absence of fraud or threatened abuse of discretion on his part.43
39. Greenough v. Welles, 10 Cush. (Mass.) 571; Feaster v. Fagan, 135 Iowa, 633, 113 N. W. 479; Cady v. Lincoln, 100 Miss. 765, 57 So. 213; Berrien v. Berrien, 4 N. J. Eq. 37; Bailey, Petitioner, 15 R. I. 60, 1 Atl. 131; Miller v. Meetch, 8 Pa. St. 417.
The heir or devisee in whom the title is vested, will be compelled to join in a conveyance in order to give a good title to the purchaser. Sugden, Powers, 589; Greenough v. Wells, 10 Cush. (Mass.) 571.
40. See Perkins v. Gridley, 50 Gal. 97; Duncan v. Gainey, 108 Ind. 579, 9 N. E. 470; Lees v. Wet-more, 58 Iowa, 170, 12 N. W. 238; Brooks v. Bergner, 83 Md. 352, 35 Atl. 98.
41. Davis v. Hoover, 112 Ind. 423, 14 N. E. 468; Feaster v. Fagan, 135 Iowa, 633, 113 N. W. 479; power in executors to sell, not accompanied by any devise to them of the land, they have not a power coupled with an interest, but a "naked" or "bare" power.47
Rollins v. Rice, 59 N. H. 493; Pennsylvania Co. for Insurance on Lives & Granting Annuities, Appeal, 168 Pa. 431, 47 Am. St. Rep. 893, 32 Atl. 25.
42. Delaney's Estate, 49 Cal. 76; McLaughlin v. Fleming, 124 Md. 28, 91 Atl. 774; McDonald v. Valdosta Inv. Co., 142 Ga. 147, 82 S. E. 539.
43. Randolph v. East Birmingham Land Co., 104 Ala. 355, 53 Am. St. Rep. 64, 16 So. 126; Smith v. Wildman, 37 Conn. 384; Dickson v. New York Biscuit Co., 211 111. 468, 71 N. E. 1058; Dickey v. Barnstable, 122 Iowa, 572, 98 N. W. 368; Walker v. Smyser, 80 Ky. 620; Eldredge v. Heard, 106 Mass. 573; Procter v. Heyer, 122 Mass. 525; Caspari v. Cutcheon, 100 Mich. 86, 67 N. W. 1093; 7n re Peterson's Estate, 13 Phila. (Pa.) 265.
In the case of a power of sale, the question whether the power is discretionary or imperative determines whether the interests of the persons named to share in the proceeds are to be regarded as realty or personalty, whether, in other words, the doctrine of equitable conversion is applicable.43a This is obviously a question of the construction of the language used in connection with the creation of the power, as involving, or not involving, an "imperative direction to convert."