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 question of the person or persons in favor of whom a power may be exercised, as well as that of the estate or interest which may be created thereunder, is one of the intent of the creator of the power, as determined by a construction of the instrument creating it.64
In the case of a general power of appointment, there is no restriction upon the persons in favor of whom the appointment may be made, and it may be exercised even for the benefit of the donee himself.65 But in the case of a special or particular power, the appointment can be made only in favor of the specified person or persons of the specified class; for instance, under a power to appoint among children, an appointment cannot be made to grandchildren.66
- Exclusive and nonexclusive powers. A power to appoint to a class of persons, such as children, may authorize a selection among members of the class, as when it is in terms to appoint "to such," or "to one or more," of the class; such a power being termed an on trust for sale and to hold the proceeds for such members.72 And an appointment to one for life with remainder to another has been upheld,73 as has an appointment of the land in favor of sonic members with a charge of a sum of money on the land in favor of others.74
63. Marsh v. Reed, 184 I'll. 263, 56 N. E. 306; Denegre v. Walker, 214 111. 113, 73 N. E. 409, 105 Am. St. Rep. 787, 2 A. & E. Ann. Cas. 787. See Upham v. Plankington, 152 Wis. 275, 140 N. W. 5.
64. Sugden, Powers, 433; Pomeroy v. Partington, 3 Term R. 665, 674; Carson v. Smith, 5 Minn. 78, 77 Am. Dec. 539.
65. Farwell, Powers, 9; New v. Potts, 55 Ga. 420; Hicks v. Ward, 107 N. C. 392, 10 L. R. A. 821, 12 S. E. 318; Beck's Appeal, 116 Pa. St. 547, 9 Atl. 942; Hanna v. Ladewig, 73 Tex. 37, 11 S. W. 133.
66. Farwell, Powers, 556; Smith v. Lord Camelford, 2 Ves. Jr. 698; Thorington v. Hall, 111 Ala. 323, 21 So. 335, 56 Am. St. Rep. 54; Lasley v. Blakeman, 4 B. Mon. (Ky.) 539; Smith v. Har-desty, 88 Md. 387, 41 Atl. 788; Austin v. Oakes, 117 N. Y. 577, 23 N. E. 193; Little v. Bennett, 58 N. C. 156; Horwitz v. Norris, 49 Pa. 213; Snoddy v. Snoddy, 1 Strobh. Eq. (S. C.) 84.
"exclusive" power.67 More generally, perhaps, the power is to appoint amongst all the members of the class, as when it uses the words "to all and every the children," or "amongst" or "between" the children; and in such case, the donee being given no authority to exclude any member of the class, it is known as a "nonexclusive" power.68
- Interests which may be created. A power to appoint a fee simple estate, or a power in general terms to dispose of the land, will ordinarily authorize the appointment of an estate less than a fee;69 and will usually authorize an appointment of a charge on the land merely, such as a mortgage.70
A power to appoint in favor of a class does not in itself necessitate that a legal fee simple be given to each, unless an intention to that effect is indicated by the language used. Such a power has in some cases been regarded as well executed by an appointment to trustees for the members of the class,71 and even
67. Farwell, Powers, 414; Ingraham v. Meade, 3 Wall. Jr. 32, Fed. Cas. No. 7,045; City of Portsmouth v. Shackford, 46 N. H. 423; Graeff v. De Turk, 44 Pa. St. 527; Huling v. Fenner, 9 R. I. 410.
68. Farwell, Powers, 415; Wilson v. Piggott, 2 Ves. Jr. 351; Hatchett v. Hatchett, 103 Ala. 556, 16 So. 550; Barrett's Ex'r v. Barrett, 166 Ky. 411, 179 S. W. 396; Faloon v. Flannery, 74 Minn. 38. 76 N. W. 954; Lippincott v. Ridg-way, 10 N. J. Eq. 164; Wright v. Wright, 41 N. J Eq. 382, 4 Atl. 855, note; Knight v. Yarbrough, Gilmer (Va.) 27; Thrasher v. Ballari. 35 W. Va. 524, 14 S. E. 232. See post Sec. 328.
69. Farwell, Powers; Bovey v. Smith, 1 Vern. 84; Butler v.
Huestis, 68 111. 594, 18 Ann. Rep. 589; Guild v. City of Newark, 87 N. J. 38, 99 Atl. 120; Hillen v. Iselin, 144 N. Y. 365, 39 N. E. 368; Appleton's Appeal, 136 Pa. St. 354, 11 L. R. A. 85, 20 Am. St. Rep. 925, 20 Atl. 521.
70. Farwell, Powers; Thway-tes v. Dye, 2 Vern. 80; Grace v. Perry, 197 Mo. 550, 7 Ann. Cas. 948, 95 S. W. 875; Hicks v. Ward. 107 N. Car. 392, 10 L. R. A. 821, 12 S. E. 318; Asay v. Hoover, 5 Pa. St. 21; Manning v. Screven, 56 S. Car. 78, 34 S. E. 22; Guarantee & Trust Co. v. Jones, 103 Tenn. 245, 58 S. W. 219. But see Rutherford, L. & I. Co. v. Sannbrock, 60 N. J. Eq. 470, 46 Atl. 648.
71. Thornton v. Bright, 2 My.
When a power of disposition is given to one who is given a life estate in the land, a number of courts have taken the view that the power is prima facie restricted to his life state, and does not enable him to dispose of any greater estate.75 By other courts, however, a contrary rule of construction has apparently been adopted,76 and since the former view has the for the purpose of reinvestment.79 But a mortgage has been regarded as within the power when the purpose of the authorization of a sale was the raising of money for some particular object named, or to pay charges imposed on the land;80 and by some authorities a power to mortgage is regarded as prima facie included in a power of sale.81
& Cr. 230; Cowx v. Foster, 1 Johns. & H. 30; Torrance v. Torrance, 4 Md. 11; Lawrence's Estate (Appeal of Appleton), 136 Pa. 354, 11 L. R. A. 85, 20 Am. St. Rep. 925, 20 Atl. 521. But see Safe Deposit & Trust Co. of Baltimore v. Myers, 73 Md. 413, 21 Atl. 58; Hooper v. Hooper, 203 Mass. 50, 89 N. E. 161.
72. Kenworthy v. Bate, 6 Ves. 793; In re Paget (1898) 1 Ch.
2S0; Harker v. Reilly, 4 Del. ch.
72; In re McNeile, 217 Pa. 179,
66 Atl. 328. But see Alley v.
Lawrence, 12 Gray. (Mass.) 373.
73. Alloway v. Alloway, 4 Dr. & War. 380; Beardsley v. Hotch-kiss, 96 N. Y. 201, 218; Lawrence's Estate, (Appeal of Apple-ton), 136 Pa. St. 354, 11 L. R. A. 85, 20 Am. St. Rep. 925, 20 Atl. 521. But see Myers v. Safe Deposit & Trust Co. of Baltimore, 73 Md. 413, 21 Atl. 58.