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 power of appointment is generally extinguished by its execution if the entire interest in the whole property is thereby appointed, and some powers, such as powers of sale, are necessarily exhausted by a single execution covering all the property.33 But a power may be executed at different times over different parts of the property, or to the extent of partial interests and estates therein, as where one appoints an estate for life at one time, and a fee at another,34 and a power of leasing may be exercised from time to time.35 A power is necessarily extinguished when the purposes for which it was created have ceased to exist,36 or when the power is one to all entitled to share in the property.
32. Farwell, Powers, 536; Lambert v. Thwaites, L. R. 2 Eq. 151; Kennedy v. Kingston, 2 Jac. & W. 431; Walsh v. Wallinger, 2
Russ. & M. 78. See In re Phene's Trusts, L. R. 5 Eq. 346.
33. Farwell, Powers, 43; Hill v. Hill, 81 Ga. 516, 8 S. E. 879; Fritsch v. Klausing, 11 Ky. Law the land and is not the creator of the power, and which is not exercisable for the donee's benefit, is termed a power "simply collateral." Such a power cannot be extinguished by any act in the nature of a release or otherwise, on the part of the donee of the power.47 This is said to be for the reason that the power is "no more than a mere nomination"48 which means presumably that it being a power to be exercised for the benefit of others, one who has no possible share in that bene-fit, and no estate in the land, should not be allowed to destroy it.49 In case however a power thus given to one who has no estate in the land is exercisable for the benefit of the donee, that is, if the power is general and not special50 the donee may, it seems, release the power, the release being in effect an appointment under the power.51 Moreover if, in making a conveyance of land, with or without the retention of an estate therein, the grantor reserves to himself a power of revocation, he may release this power, as being merely something retained by him out of the estate granted.52
Rep. 788, 13 S. W. 241; Ex parte Elliott, 5 Whart. (Pa.) 524; Asay v. Hoover, 5 Pa. St. 21; Hidell v. Girard Life Ins. Co., 14 Phila. 401. But a power to sell and reinvest has been held not to be exhausted by one sale and investment. Owsley v. Eads' Trustee, 22 Ky. Law Rep. 355, 57 S. W. 225.
34. Sugden, Powers, 272.
35. Farwell, Powers, 43.
36. Farwell, Powers, 39; 2 Perry, Trusts, Sec. 498; Smith v. Taylor, 21 111. 296; Wilks v. Burns, 60 Md. 64; Conant v. Stone, 176 Mich. 654, 143 N. W. 39; Hetzell v. Barber, 69 N. Y. 1; Hoyt v. Day, 32 Ohio St. 101; Swift's Appeal, 87 Pa. St. 502.
A power of appointment, or other power not to be exercised in the name of the donor of the power, is not extinguished by the death of the donor. Indeed, in the ordinary case, as before remarked, as being created by .will, the power does not come into existence until the donor's death. In this respect, as in others, such a power is to be distinguished from a power of agency, that is, an authority given to one as agent, which, as being necessarily executed in the donor's name and as his act, cannot survive the donor's death.38a
Where a power is given to a person named as executor, the cessation of the executorship, or his retirement from the office, will not terminate his power it' it is given to him personally,39 or as trustee,40 though it will have that effect if the power is annexed to the office of executor.41 A power of sale given to a trustee will terminate with the termination of the trust, unless a contrary intention appear.42 A power is like37. Chasy v. Gowdy, 43 N. J. Eq. 95; Wooster v. Cooper, 59 N. J. Eq. 204; Prentice v. Janssen, 79 N. Y. 478.
38. Jackson v. Jansen, 6 Johns. (N. Y.) 73; Ward's Lessee v. Barrows, 2 Ohio St. 241; Wilkinson v. Buist, 124 Pa. St. 253; Fidler v. Lash, 125 Pa. St. 87; Harmon v. Smith, 38 Fed. 482. But not upon the death of one of several persons, for whose benefit the sale is to be made. Ely v. Dix, 118 111. 477.
38a. Ante, Sec. 311.
39. Smith v. Mclntyre, 37 C. C. A. 177, 95 Fed. 585; Mordecai v.
Schirmer, 38 S. C. 294; Larned v. Bridge, 17 Pick. (Mass.) 339; Scholl v. Olmstead, 84 Ga. 693; Hazel v. Hagan, 47 Mo. 277.
40. Greenland v. Waddell 116 X. Y. 234, 15 Am. St. Rep. 401, 22 N. E. 367; Scholl v. Olmstead, 84 Ga. 693, 11 S. E. 541.
41. Littleton v. Addington, 59 Mo. 275; Goad v. Montgomdry, 119 Cal. 552, 63 Am. St. Rep. 145; Jones v. Broadbent, 21 Idaho, 555, 123 Pac. 476. See Hoffman v. Hoffman, 66 Md. 568.
42. Fox v. Storrs, 75 Ala. 265; Bakewell v. Ogden, 2 Bush (Ky.) 265; Heard v. Reade, 171 Mass wise extinguished if its exercise is dependent on the consent of another person, or of other persons, and one such person dies without having given consent,43 and a power which is entirely discretionary in the donee will cease upon his death.44 In the case of a power of sale given to an executor or trustee, a provision that it shall be exercised within a certain number of years is usually regarded as directory, and not mandatory, and hence as not invalidating a sale after that time.45 And such a power will not, it seems, in any case, be regarded as extinguished by mere lapse of time, except as this may give rise to a presumption that the particular purpose for which the power was created, such as the payment of debts, no longer obtains.46
- By conveyance or release. A power of appointment which is given to one who has no estate in since his subsequent exercise of the power can in no way derogate from the grant.58
374, 50 N. E. 638, DeLashmutt v. Teetor, 261 Mo. 412, 169 S. W. 34. See Ely v. Dix, 118 111. 477, 9 N. E. 62; Johns Hopkins University v. Middleton, 76 Md. 186, 24 Atl. 454.
43. Sugden, Powers, 252; Barber v. Cary, 11 N. Y. 3?7; Powles v. Jordan, 62 Md. 499; Peirsol v, Roop, 56 N. J. Eq. 739; Gulick v. Griswold, 160 N. Y. 399, 54 N. E. 780. But see Leeds v. Wakefield, 10 Gray (Mass.) 514.