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) In case of individual donee. In so far as the gift of a
89. Driver v Thompson, 4 Taunt. 294; Willock v. Noble, L. R. 7 H. L. 580, per Cairns L. C; Osgood v. Bliss, 141 Mass. 474, 55 Am. Rep. 488, 6 N. E. 527.
90. Horseman v. Abbey, 1 Jac. & W. 381; Farwell, Powers, 135.
91. Sugden, Powers, 177, 910; Hearle v. Greenbank, 3 Atk. 710; Hill v. Clark, 4 Lea (Tenn.) 405.
92. Post, Sec. 331, note 47.
93. Hearle v. Greenbank, 3 Atk. 710; In re D'Angibau, 15 Ch. D. 228; Thompson v. Lyon, 20 Mo.
555. See Sheldon v. Newton, 3 Ohio St. 494, 507.
94. See Be Cardross' Settlement, 7 Ch. D. 728 quoting 1 Preston, Abstracts, 32G. Compare Mill v Clark, 4 Lea (Tenn.) 405.
95. In re Armit. 5 Ir. Hep. Eq. 352; Thompson v. Lyon, 20 Mo. 155, 61 Am. Dec. 599; Farwell, Powers, 142
96. New York, Real Prop. Law, Sec. 141 Montana Rev. Codes 1907, Sec. 4552; Wisconsin St. 1913, Sec. 2137.
97. Sugden, Powers, 179; 4 Kent, Comm. 327; Ingram v. Ingram, 2 Atk. 88; Berger v. Duff. 4 Johns. Ch. (N Y.) 368; Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Haslen v. Kean, 4 N. C. 700, 7 Am. Dec. 718 That the donee's discretion cannot even be delegated to a court, see Cramton v. Rutledge, - Ala. -, 47 So. 214, and ante, Sec. 317, note 31.
Accordingly, the donee of a power, other than a general power, cannot exercise it by appointing to another a life estate, with power in that other to appoint in remainder. Wickersham v. Savage, 58 Pan St. 365; H;ood v. Haden, 82 Va. 588; Farwell, Powers, 500.
98. Farwell, Powers, 503; Singleton v. Scott, 11 Iowa, 589; Albert v. Albert, 68 Md. 352, 12
Atl. 11; In re McNeile, 217 Pa.
179, 66 Atl. 328; Terrell v. Mc-Cown, 91 Tex. 231, 43 S. W. 2.
99. Hill v. Peoples 80 Ark. 15. 95 S. W. 990; Graham v. King, 50 Mo. 22; Lake Shore etc. R. Co. v. Hutchins, 37 Ohio St. 282; Reeves v. Brayton, 36 S. C. 384, 15 S E. 658. But see Colsten v. Chaudet, 4 Bush (Ky.) 666.
1. Palmer v. Young, 96 Ga. 246, 51 Am. St. Rep. 136, 22 S. E. 921; Dunton v. Sharpe, 70 Miss. 850, 12 So. 800; Gates v. Dudgeon, 173 N. Y. 426, 93 Am. St. Rep. 608, 66 N. E. 116; Lake Shore etc R. Co. v. Hutchins, 37 Ohio St. 282; Bohlen's Estate, 75 Pa..304; Dunn v. Renick, 40 W. Va. 349, 22 S. E. 66. But see Graham v. King, 50 Mo. 22, 11 Am. Rep. 401.
2. Sugden, Powers, 180; Mur-dock v. Leath, 10 Heisk. (Tenn.) 166.
One having an interest in the land "and his assigns," the power may be exercised by any person to whom his interest passes, whether he takes by act of the donee named or by operation of law.3
The general rule that the exercise of a power cannot be delegated has no application in the case of a general power of appointment, unrestricted as to its beneficiaries and the mode of its execution, since there is in such case no trust and confidence, and the power is equivalent to ownership, and accordingly the donee may delegate its execution, or may appoint to such uses as another shall appoint.4
A power in the nature of a trust,-an imperative power, as explained above, - whether given to one personally or as trustee or executor, will be enforced by equity if the donee or one of the donees refuses to execute it, or dies without having done so, or in any other case of its nonexecution.5 Accordingly, the following statements in regard to the rights of persons, other than the original donee or donees, to execute the power, do not apply to such powers in trust.
Where a power, not a power in trust, is given to one who is not a trustee or executor, as in the case of an ordinary power of appointment, since the exercise of the power is within the donee's discretion, the power terminates if he fails to exercise it during his life, unless the instrument creating it otherwise provides, and equity will not cause its execution by some other hand, or, as it is usually expressed, equity will not aid the nonexecution of a power.6 in the original trustee personally,as regards the exercise of the power, it cannot, apart from statute, be exercised by a substituted trustee.11 in other words, the power may be exercised by a substituted trustee in case the creator of the power so intended, and not otherwise. And such intention is, it appears, in effect shown by the fact that the power is imperative.12
3. Sugden, Powers, 180; How v. Whitfield, 1 Vent. 338.
4. Sugden, Powers, 181, 195. See Coats' Ex'r v. Louisville & N. R. Co., 92 Ky. 263, 17 S. W. 564; Papin v. Plednoir, 205 Mo. 521, 104 S. W. 63. See Crooke v. County of Kings, 97 N. Y. 421, per Earl, J.
5. Perry, Trusts, Sec.Sec. 248, 249, 505; Brown v. Higgs, 8 Ves. 561; intended by the testator to be exercised, not only by the person named, but also by any person, such as an administrator c. t. a., who is by law substituted in his place for the purpose of performing his duties, and on the other hand, a power vested in the person Darned as executor, not virtute officii, but involving a purely personal discretion, exercisable by him alone.17 The question whether a power was, in the particular case, given to the executor virtute officii is primarily, it seems, a question of construction, but certain criteria in this regard have been indicated by the courts. That the power of sale is imperative shows, or tends to show, that it is given to the executor as such,18 and this is also said to be shown by the fact that the proceeds of sale are to be applied to the payment of debts or of legacies.19 And that the power involves the exercise of discretion as to the terms and manner of sale does not, it has been said, show an intention to invest a personal discretion in the executor alone.20 On the other hand, if the discretion is evidently vested in one as trustee, though he is also appointed executor, it
Gossen v. Ladd, 77 Ala. 223; Druid Park Heights Co. v. Oet-tinger, 53 Md. 46; Gibs v. Marsh, 2 Metc. (Mass.) 243; Greenough v. Welles, 10 Cush. (Mass.) 571; Franklin v. Osgood, 14 Johns. (N. Y.) 527, affirming 2 Johns. Ch. (N. Y.) 1; Bailey, Petitioner, 15 R. I. 60, 1 Atl. 131; Robertson v. Gaines, 2 Humph. (Tenn.) 367.