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 .
A married woman can, even at common law, exercise a power,87 and her husband's concurrence is not necessary.88 The fact that she is, in the particular jurisdiction, incapacitated to make a will disposing of her own
G. & Sm. 768; Oceanic Steam Navigation Co. v. Sutherberry, 6 Ch. D. 236.
83. Stocker v. Foster, 178 Mass. 591, 60 N. E 407; Garland v. Smith, 164 Mo. 1, 64 S. W. 188; Harris v. Strodl, 132 N. Y. 392, 30 N. E. 962; Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N. W. 303.
84. White v. Glover, 59 111. 459; Hughes v. Washington, 72 111. 84; Mut. Life Insur. Co. v. Woods, 121 N. Y. 302, 24 N. E. 602. See power implies personal trust and confidence, it cannot be transferred to another, nor can the donee delegate its exercise.97 The donee of a power may, however, delegate the performance of an act of a merely ministerial character, not involving the exercise of personal discretion.98 and so it has been held that while a trustee or executor must approve a sale made by another, as his agent or otherwise, in the attempt to exercise a power of sale given to the executor or trustee,99 he need not actually participate in the making of the sale.1 Even as regards the exercise of discretion, the execution of the power may be delegated, it seems, if the right of delegation is expressly or impliedly given,2 though in such a case, perhaps, it might more properly be considered that the power was in terms given to the person named or, in the alternative, to such person as he might name. And so when a power is given to
McComb v. Walbron, 7 Hill (N. Y.) 335.
85. Phelps v. Harris, 101 U. S. 370, 25 L. Ed. 855; In re Frith v. Osborne, 3 Ch. Div. 618. Compare Farwell, Powers, 556.
86. 2 Perry, Trusts, Sec. 769;
Farwell, Powers, 556; McQueen v. Farquhar, 11 Ves. 467; In re Carr, 16 R. I. 645, 27 Am. St. Rep. 773, 19 Atl. 145.
87, Peacock v. Monk, 2 Ves. St. 191; Ladd v. Ladd, 8 How. (U. S.) 10, 12 L. Ed. 967; New v. Potts, 55 Ga. 420; Kennedy v. Ten Broeck, 11 Bush (Ky.) 241; Bradish v. Gibbs, 3 Johns. Ch. (N. Y.) 523; Leigh v. Smith, 38 N. C. 442, 42 Am. Dec. 182.
88. Doe d. Blomfield v. Eyre, 5 C. B. 713; Young v. Sheldon; 139 Ala. 444, 36 So. 27, 101 Am. St. Rep. 44; Armstrong v. Kerns, 61 Md. 364; Taylor v. Eatman, 92 N C. 601; Dieffenbach v. Harris. 18 Weekly Notes (Pa.) 357; Thompson v. Perry, 2 Hill Eq. (S. C.) 204, 29 Am. Dec. 68.
The extent to which a power may be exercised by an infant has been the subject of considerable dis cussion. It appears to be agreed that an infant may exercise a power simply collateral,91 that is, a power given to one who has no interest in the property,92 while it has been decided that if he has an interest In-cannot exercise a power as regards real property, even though it be a power in gross, that is, a power the exercise of which does not affect his interest,93 unless perhaps an intention appears in the creation of the power that the donee might exercise it even dining infancy.94 A power appendant cannot be exercised by an infant, since such exercise would involve the disposition, to a greater or less extent, of his own property.95
In some states the exercise of a power by an infant is precluded by a statutory provision that a power cannot be exercised by a person not capable of transferring real property.96