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 terms of the power in regard to the character of the instrument by which it is to be exercised, or in regard to the execution, attestation, or delivery of such instrument, must be strictly complied with; and accordingly, if the instrument creating the power declares that it shall be executed by deed, it cannot be executed by will, and vice versa;41 and if it declare that it shall be executed by an instrument having a certain number of witnesses, it cannot be executed by an instrument, though signed will previously executed cannot well be regarded as embodying an intention to exercise a power non existent at the time of the execution of the will. In England, apart from statute, the rule appears to be the same as that ordinarily recognized in this country,47 but there, in the case of general powers, the statutory provisions that, unless a contrary intention appears, a will shall be construed, as to the real and personal estate comprised in it, to speak and take effect as if executed immediately before the testator's death, and that a general devise or bequest shall be held to include any property which the testator has power to appoint as he thinks proper, have been regarded as making a will effective as the execution of such a power, although the will was executed before the death of the person by whose will the power was created.48 These statutory provisions have, however, been regarded as insufficient to make a prior will effective as an execution of a special, as distinguished from a general power, in the absence at least of a clear showing in the will of an intention to execute a power subsequently created.49 In Massachusetts, without the aid of any statute, the courts have adopted the rule that a general power is to be regarded as executed by general language in a will previously executed, to the same extent, it seems, as if the will were executed after the creation of the power,50 and a tendency in favor of the adoption of the same rule in the case of special powers has there been indicated.51 But even in England and Massachusetts,
38. Robinson v. Allison, 74 Ala. 254; Hunter v. Anderson, 152 Pa. St. 3S6, 25 Atl. 558. Compare Ely v. Dix, 118 111. 477, 9 N. E. 62.
39. Lippincott v. Wikoff, 54 N. J. Eq. 107; O'Rourke v. Sher-win, 156 Pa. St. 285. Compare Weimar v. Fath, 43 N. J. Law, 1.
40. Co. Litt. 113b; Sugden, 128; 4 Kent, Comm. 326; Story, Eq. Jur. 1062, note. See Sheldon v. Homer, 5 Metc. (Mass.) 462; Carroll v. Stewart, 4 Rich. Law (S. C.) 200; Muldrow v. Fox's Heirs, 2 Dana (Ky.) 79. Compare 1 Chance, Powers, 655.
41. Sugden, Powers, 207, 210, et seq.; Wright v. Wakeford, 17
Ves. 454, 4 Taunt. 213; Porter v. Thomas, 23 Ga. 467; Wilson v. Maryland Life Ins. Co., 60 Md. 150; Wooster v. Cooper, 59 N. J. Eq. 204, 45 Atl. 381; Wooster v. Fitzgerald, 61 N. J. Law 368. 39 Atl. 679, 61 N. J. Law 687, 41 Atl. 251; Reid v. Bonshall, 107 N. C. 345, 12 S. E. 324; Porter v. Turner, 3 Serg. & R. (Pa.) 108; Hacker's Appeal, 121 Pa. St. 192, 1 L. R. A. 861, 15 Atl. 500; Moore v. Dimond, 5 R. I. 121; Gaskins v. Finks, 90 Va. 384, 19 S. E. 166.
Consequently, in the case of a power to be exercised only by will, a testamentary power, a covenant by the donee to execute it in a particular way does not preclude him from executing it in and scaled, having a less number of witnesses.42 If, however, the instrument creating the power contains no restrictions, express or implied, upon the mode of execution, it may be executed by any instrument sufficiently showing an intention to execute it.43
In some states it is provided by statute that the execution must be by an instrument, whether a will or a conveyance inter vivos, which would be sufficient to pass the estate if the appointor were the owner;44 and in approximately the same states it is provided that unnecessary formalities enjoined by the creator of the power need not be complied with.45
By the weight of authority in this country a power is, at least prima facie, not to be regarded as executed by a will made before the creation of the power.46 In such a case the terms of the instrument creating the power ordinarily look toward a subsequent, not a prior, designation of the persons to take, and moreover, the a different way, the intention in creating the power being that the donee should retain the right to exercise his discretion until his death. Palmer v. Locke, 15 Ch. D. 294; In re Parkin (1892) 3 ch. 510; In re Collard & Duckworth, 16 Ont. 735. Wilks v. Burns, 60 Mo. 64; Vinton v. Pratt, 228 Mass. 468, 117 N. E. 919; Farmer's Loan & Trust Co. v. Mortimer, 219 N. Y. 290, 114 N. E. 389 (discussed, 17 Columbia Law Rev. 235). See Reid v. Bon-shall, 107 N. C. 345, 12 S. E. 324
42. Ladd v. Ladd, 8 How. (U. S.) 10; Breit v. Yeaton, 101 111. 242; Montgomery v. Agricultural Bank, 10 Smedes & M. (Miss.) 566.
43. Sugden. Powers, 203; Christy v. Pulliam, 17 111. 59; Cueman v. Broadnax, 37 N. J.
Law, 508. And see Schley v. Mc-Ceney, 36 Md. 266.
44. 1 Stimson's Am. St. Law, Sec. 1659; 4 Sharswood & B. Lead. Cas. Real Prop. 46; Chaplin, Express Trusts, Sec. 622. See Rut-ledge v. Crampton, 150 Ala. 275. 43 So. 822; Jackson v. Edwards, 22 Wend. (N. Y.) 498.
45. 1 Stimson's Am. St. Law, Sec. 1659; 4 Sharswood & B. Lead. Cas. Real Prop. 46, 59; Chaplin. Express Trusts, Sec. 626.
46. Howard v. Carusi, Mac-Arth. & M. (11 D. C.) 260; Webb v. Jones. 36 N. J. Eq. 163 (sem-ble); In re Mayo'a Will. 76 N. Y.
.Misc. 416, 136 X. Y. Supp. 1066; Dunn's Appeal. 85 Pa. 94; Vaux's Estate. 11 Phila, 57 (Pa.); Mat-teson v. Goddard, 17 R. 1. 299, 21 Atl. 914; Burkett v. Whittemore, 36 S. C. 428, 15 S. E. 616.
47. Walker v. Armstrong, 21 Beau. 284; In re Hayes (1901) 2 Ch. 529. And cases cited in Matteson v. Goddard, 17 R. I. 299, 21 Atl. 914.
48. Boyes v. Cook, L. R. 14 Ch. Div. 53; Airey v. Bower, 12 App. Cas. 263. In Kentucky like statutory provisions have been given a like effect. Hawkins v. Columbia Trust Co., 142 Ky. 206, 134 S. W. 498.
49. In re Hayes (1901), 2 Ch. 529.
50. Osgood v. Bliss, 141 Mass. 474, 55 Am. Rep. 488, 6 N. E. 527.
51. Stone v. Forbes, 189 Mass. 163, 75 N. E. 141. And such is probably the rule in New York a power cannot be executed by the will of one who dies before the death of the person by whose will it is sought to create the power, since this would involve the exercise of the power by a person not in existence after the creation of the power.52
Whether, when a power is given to dispose of property at or after the donee's death, this is to be regarded as requiring the exercise of the power to be by will,53 or whether the reference to death is merely to indicate that the exercise of the power is subject to a life estate previously given to the donee of the power,54 is properly a question of construction.
Ordinarily, when a life tenant is given power to dispose of the property for her own benefit, and there is a gift over of what remains at her death, or equivalent language is used, the power will be regarded as one to be exercised during the donee's life, and not by will.55