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 execution of a power is said to be "excessive" when it transgresses the rules of law or the scope of the power.86 It may be excessive (1) as regards the objects, as where a power to appoint to children is exercised in favor of grandchildren; (2) in the interests given, as where, under a power to lease for twenty-one years, a lease is made for twenty-two years; (3) in conditions annexed to the gift made in execution of the power, as where an appointment is made subject to a condition that the appointee pay a particular debt.87
When an appointment is made to persons who are not objects of the power, as well as to persons who are, it will be valid as to the latter if it can be ascertained what shares the latter are, by the appointment, intended to take,88 and provided that by this giving ef373; Moores v. Moores, 41 N. J. Law, 440; Sweeney v. Warren, 127 N. Y. 426; Ward's Lessee v. Barrows, 2 Ohio St. 242; Hemphill v. Pry, 183 Pa. St. 593; McDonald v. Hamblem, 78 Tex. 628.
In Dike v. Ricks, Cro. Car. 335, it was decided that a power of sale "in case it should fully and sufficiently appear" that the personalty was insufficient to pay debts could be exercised only in case the insufficiency so appeared. This, however, would hardly be regarded as law at the present day, when land is made by law assets for payment of debts. See Parwell, Powers, 174.
85. Farwell, Powers, 94; Smith v. Mclntyre (C. C. A.) 95 Fed.
585; Rutherford's Heirs v. Clark's Heirs, 4 Bush (Ky.) 27; Doran v. Piper, 164 Pa. St. 430; Smith v. Henning, 10 W. Va. 596; Davis v. Christian, 15 Gratt. (Va.) 11. See Griffin v. Griffin, 141 111. 373, 31 N. E. 131.
86. Farwell, Powers, 324.
87. Sugden, Powers, 498.
88. Farwell, Powers, 312; Alexander v. Alexander, 2 Ves. Sr.
640; In re Brown's Trust, L. R. 1 Eq. 74; Sadler v. Pratt, 5 Sim. 632; Butler v. Huestis, 68 111. 594; McClellan's Estate, 221 Pa. 261, 70 Atl. 737; In re Carter's Estate, 254 Pa. 565, 99 Atl. 79; Cruse v. Mckee, 2 Head. (Tenn.) 1. So, where a power to appoint pointee named, such transfer to be made by the person in whom the title is vested in default of appointment. Relief of this character will be given in favor of persons who have given value for the appointment, as purchasers, lessees, or creditors of the person intending to exercise the power,93 or persons for whom such intending appointor was, by relationship, bound to make provision, as his wife or legitimate child,94 and also in favor of a charity.95 feet to a part only of the appointment the main purpose which the donee presumably had in mind in making the appointment is not defeated.89
If the appointment is for an estate or interest greater than that contemplated by the power, as when a power to appoint for life is executed by an appointment in fee simple, the appointment, while wholly void at law, is valid in equity as regards the estate authorized.90 And so, where the power authorizes a lease for a certain term, a lease for a greater number of years is, in equity, void as to the excess only.91
If the execution is excessive by reason of the imposition by the donee of conditions or qualifications upon the estates to be enjoyed by the appointees, as by postponing the time of vesting, or by requiring them to share with others, or to make certain payments, such conditions or qualifications, if separable from the exercise of the power, will be rejected, and the appointment otherwise upheld.92