A "power coupled with an interest" is quite frequently referred to by the courts, generally in contradistinction to a "naked" or "bare" power, and it is important to have a clear conception of what is meant by these terms. The phrase "power coupled with an interest" is applied to an, equitable power of the second class above described; that is, a power in a trustee or quasi trustee to create estates.44 So, a trustee having power to sell or to lease is said to have a power coupled with an interest, since he has both the power and the title;45 and the term is, for the same reason, applied to the case of a power of sale in executors who are also given an estate in the land.46 On the other hand, in the case of what we have referred to above as a common-law readily occur that no use is declared, and a question suggests itself as to the theory on which, in such a case, the power can be regarded as operating. If the power is exercisable in favor only of blood relatives of the grantor, its exercise might be sustained on the theory that the conveyance is a covenant to stand seised, conceding that a conveyance of this character may be made in favor of persons not in esse.50b If the power is exercisable in favor of persons other than blood relatives, it cannot be sustained on the theory of a covenant to stand seised, and whether it can be sustained as a bargain and sale would seem to depend on the question, as to which there is considerable doubt,50c whether a bargain and sale in favor of persons unascertained or not in esse is valid.50d

43a. Ante, Sec. 120.

44. The term "power coupled with an' interest" is used in contradistinction to "naked power" by Lord Hardwicke to describe a power of appointment the execution of which will operate on a beneficial interest in the donee of the power, what is hereafter referred to as a power "appendant" or "appurtenant." See Godolphin v. Godolphin, 1 Ves. Sr. 21; Hearle v. Greenback, 1 Ves Sr. 298; Marlborough v. Godolphin, 2 Ves. Sr. 60. The phrase is not apparently so used by later authorities.

45. Gray v. Lynch, 8 Gill (Md.) 403; Lorings v. Marsh, 6 Wall. (U. S ) 337, 354.

46. Co. Litt. 112b, 181b; 4 Kent, Comm. 320; Peter v. Beverly, 10 Pet. (U. S.) 532; Franklin v. Osgood, 14 Johns. (N. Y.) 553, affirming 2 Johns. Ch. (N. Y.) 1; White v. Glover, 59 111. 459; Williams' Lessee v. Veach, 17 Ohio 171, 49 Am. Dec. 453. See, also, cases cited ante, Sec. 311, note 10.

Sometimes the expression "naked" power has been used in contradistinction to what we have referred to above as a power in the nature of a trust;48 but it is important to distinguish between powers in trust and those coupled with an, interest. A power may be imperative, and hence in the nature of a trust, though it is a mere power of appointment or sale in one having no title to or interest in the premises; while, on the other hand, a power in a trustee or executor having title to the land, a power coupled with an interest, may be purely discretionary, and so not in the nature of a trust,48a

In discussing the effect of the principal's death upon an agent's authority, a distinction is frequently asserted between such an authority, referred to as a naked or bare power, which is terminated by the death of the donor, and that of a power "coupled with an interest," which is not so terminated, a power coupled with an interest being at the same time explained to mean a power given to one who is also given title to the property involved.49 But however correct such a terested;59 and in some jurisdictions such power in a court of equity has been recognized without reference to any statute, in so far as a sale may be absolutely necessary, under the circumstances which have arisen, for the preservation of the trust property or the accomplishment of the purpose of the trust.60

47. Taylor v. Benham, 5 How. (U. S.) 233, 266, 12 L. Ed. 130; Atwater v. Perkins, 51 Conn. 188; Brumfield v. Drook, 101 Ind. 190; Jameson v. Smith, 4 Bibb. (Ky.) 307; Guyer v. Maynard, 6 Gill & J. (Md.) 420; Middlebaum v. Mc-Donell, 29 Mich. 78, 18 Am. Rep. 61; Den d. Snowhill v. Snowhill, 23 N. J. Law, Den d. 447; Moores v. Moores, 41 N. J. Law 44o; Bergen v. Bennett, 1 Caines' Cas. (N. Y.) 1; Hoyt v. Day, 32 Ohio St. 101; Haskell v. House. 3 Brev.

(S. C.) 242

48. Greenough v. Welles, 10 Cush. (Mass.) 571; Shelton v. Homer, 5 Metc. (Mass.) 462.

48a. This distinction between a power in trust and a power coupled with an interest appears not always to have been clearly presented. See, e. g. Peter v. Beverley, 10 Pet. (U. S.) 532, 564, 9 L. Ed. 522; Wilson v. Snow, 228 U. S. 217, 57 L. Ed. 807.

49. See Hunt v. Rousmanier's Adni'rs, 8 Wheat. (D. S. 174, 5

Real Property.

[Sec. 319 statement may be as regards a power of agency,50 the broad assertion that a power, if not coupled with an interest, is terminated by the death of the donor of the power, is not correct as applied to a power of appointment, such as we are now considering. Not only is such a power not usually extinguished by the death of the donor of the power, but, in the ordinary case, the power, as being created by will, does not even exist until the donor's death.