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that his feoffees shall sell his lands: here the power to sell APPOINTis merely collateral to the right in the land; for the feoffees are strangers and take no interest in the land itself, but are barely empowered to sell or dispose of an interest out of the land'. Again, if there be a feoffment in fee by A. to divers uses, with proviso, that, if B. shall revoke them, the uses shall cease, B. has no interest in the estate, subjected to his power, nor can gain any by revoking or not revoking; and, consequently, the person in whose favour he executes the power, or who eventually benefits by his execution of the power, takes nothing from the donee of the power; whatever interest accrues to him, is derived soely from the author of the power, and in no shape from him who executes it.

And as powers relating to the land are a part of the ownership of the donee, they are liberally construed to effectuate the intent; but collateral powers being given to mere strangers, and giving a bare authority only, are strictly construed within the words of the power.

Collateral powers may moreover be either general or special. General; as where D, possessed of a term for years during the life of B, devised that if M. should die, living B, then M. should have power, before her death, to grant an annuity to any person she should nominate, and to charge the term therewith. Special; as where A. devised lands and tenements to his wife for life, and then to be at her disposal, provided that she disposed of the same, after her death, to any of her children.-The latter of these are, for distinction, called powers of specification.

Relative powers, or powers relating to the land, are those which are given or reserved to some person having an estate or interest in the land over which they are given,

f 1 Rep. 111, 174.

Cowp. Rep. 267. h Gibbons et al. v. Moulton, et al. Finch, 346.

i Dighton v. Tomlinson, Comyns, 194; 1 Salk. 239, S. C.; and see Carter, 232.

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and these may be either appendant, i. e. annexed to the estate in the land, or in gross. Powers are said to be annexed to the land where the donee has an estate in the land out of which the estate to be created by the power is to take effect in possession during the continuance of the estate to which the power is annexed. Of this sort is the power frequently given in settlements to tenants for life, when respectively in possession, to make leases for oneand-twenty years, or three lives, or the like. So where a power is given to a jointress, by her marriage settlement, to make leases for twenty-one years in possession1. So where a man covenants to levy a fine to the use of himself for life, with remainder to his son in tail, remainder over; with a proviso in the indenture, that, if he grant, bargain or sell the land to another, or appoint other uses, it shall enure to such uses, and a fine be levied accordingly"; for these powers not only operate in the nature of emoluments to the estate of the donee; but are also appurtenant, or annexed to his estate; and, when created, are to be executed out of, and must be concurrent with, and have their being and continuance, (at least for some part), out of the estate for life, or other estate of the donee.

Powers in gross are, where the person to whom they are given has an estate in the land, but the estate to be created under or by virtue of the power is not to take effect until after the determination of the estate to which it relates". This power in gross may either be vested in a person having a particular estate preceding the power, but of which the power is independent; (as, where a tenant for life of an estate settled by a stranger has power to make an estate which is not to begin until after his own estate be determined; as a power to make a jointure, or limit a term to commence in possession after the death

* Hard. 4153
342, b, n. (1).
3 Salk. 276.

Co. Lit.

m

Snape v. Turton, Sir W. Jones, 392.

" Hard. 415; Co. Lit. 342, b, n. (1); Sugd. Pow.c.1, s.5.

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of the tenant for life ); or which may be reserved by the APPOINTowner of the estate to himself, by way of power to take effect out of a settlement; (as, where a man, seised in fee, or in tail, doth by fine settle his lands to the use of himself for life, reserving therein a power to create an estate by lease or otherwise, to commence after his death, for the raising money for younger children's portions, or for securing a jointure): and these powers are called powers in gross, because the estate or interest of the party, who is to execute them, is not affected by them. Powers appendant, and in gross, are also sometimes called powers with an interest; because, although the estates raised under such powers take effect out of the estate of the original creator of the power, yet the donee of the power has an interest in the estate as well as in the exercise of the power?; either, if it be a restraining power, as a power of revocation to re-vest the estate in himself, &c. or if it be an enabling power, to transfer the estate; or destroy such power by fine, feoffment or otherwise; therefore the person to whom it is limited, is, in law, considered as coming in under him who executes the power; and, in such case, he who gives operation to and limits the use is looked upon as the donor, and therefore his power is not considered as merely collateral, but savours (as it is said in the pithy language of antiquity,) of the estate and interest in the land. And a power may be so circumstanced, with relation to the land upon which it is to operate, that, as to one estate in such lands, it may take effect as a power in gross, and, as to another, as a power appendant: thus, where lands are settled by A. to the use of himself for life, with power to make a jointure; and also leases for years, to commence after his death, for raising younger childrens portions, with remainder over in tail, reversion in fee in himself: here,

• Edwards v. Slater, Hard.

410.

? Digges's Ca. 1 Rep. 174.
q Hard. 415.

VOL. IV.

APPOINT- the power to make leases, is a power in gross as to the remainder in tail, but appendant as to the reversion in fee1.

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Ferne covert.

II. BY WHOM AN APPOINTMENT, IN PURSUANCE OF A
POWER, MAY BE MADE.

ALL powers, as well those which are collateral as those which are relative, take effect, we have observed, out of the estate vested in the creator of the power; and their legal operation is by authority of the instrument which gives the power, and not of the instrument by which it is executed. Hence it follows, that the incapacities which subsist respecting the disposition of legal estates by femes covert, infants, &c. do not in all cases hold in respect to the execution of powers of appointment. For as the appointee takes the estate by the instrument in which the power is reserved, and not by the deed by which the power is executed, he derives no interest from the appointor, who is merely an instrument, by means of whom the intent of the person conferring the power is carried into effect; and it is therefore immaterial whether the appointor is such a person as is capable sui juris of holding or conveying such an estate or not.

Thus though it has been seen in various parts of the present work, that at common law a feme covert has no disposing power over her possessions, yet as this disability arises solely from the solicitation which the law takes to protect her interest from any undue influence which might be exercised over it by her husband, and not as in the case of an infant, to any supposed incapacity of mind or volition; yet even at the common law she was allowed to execute a power or authority which she was to exercise merely as a ministerial act, without parting with any

410.

Edwards v. Slater, Hard. 6 Rep. 17, b; 2 Ves. 78; 2.
Atk. 568; Comyns, 497.

• Sir Edward Clere's case,

interest in the thing appointed; and the courts of equity will give effect to any voluntary demonstration of her desire to exercise an ownership over her estates or interests, in all cases where such a power has been reserved to her, and where, by a strict observance of the forms previously prescribed, to attend such disposition, it appears to be her own deliberate act, and not the effect of surprise or accident.

Thus, where the power is simply collateral to the estate, it is agreed that a feme covert may execute it, notwithstanding that, at the time it was delegated to her, she was sole; for, whenever she executes the power, the cestui que use of the power does not derive any interest from the donee of the power, (who is merely an instrument, or conduit-pipe to carry into execution the intent of the donor of the power,) but is in immediately by and under the instrument creating the power, unaffected by any intervening acts of such donee. Thus, where A. seised of a messuage in fee, devised it to his wife, to dispose of at her will and pleasure, and to give to such of his sons as she thought best". The wife married a second husband, and then executed the power vested in her, by feoffment to the second son of the devisor; and the court agreed unanimously, that the act of the wife was good, notwithstanding the coverture.

So where a person conveyed lands to trustees to the use of his wife for life (after his decease), with a power for his wife to grant leases; and after the husband's death she married again and demised the lands, it was held to be a good execution of the power, notwithstanding her coverture; for the court said, the estate of the lessee was not derived from the lessor, but arose out of the estate of the trustees to uses".

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