power is not born at the time when the power is created, APPOINThe can only take an estate of inheritance. But though an estate, limited under the execution of a power to the issue of a child unborn at the time of the creation of the power, as purchasers, would be bad, for the reasons suggested by the learned Judge in the case last mentioned; yet there does not appear to be any objection to the validity of a limitation for life to a person not in esse. And such limitations have in fact been admitted and recognized in several adjudged cases'. But it is the limitation over the remainder in tail to the issue of such unborn person as purchasers, that is repugnant to the rule of law on the execution of a power relied on by Mr. Justice Buller, in the case of Robinson v. Hardcastle". MENTS. It may further be observed in this place, that any in- A power to appoint assets. terest which a man may entitle himself to by virtue of a power of appointment ad libitum, is looked upon in equity as part of his estate, and as such will be subject to the demands of his creditors. Thus, where a person created a term to raise a sum for such purposes as he should think fit, and by will appointed it to his daughter, the Lord Keeper decreed that it was, notwithstanding, subject to his debts. And though a person, having a power to appoint at pleasure, actually execute it in favour of third persons, yet, if there be creditors not satisfied, it will be considered, as to them, as part of the estate of the appointor, and subject to his debts. Thus, where I. S. on sale of lands, * See Lovelace's case, Saville's Rep. 75; 2 Leon. 35, pl. 48; Denn on dem. Breddon v. Page, 3 Durnf. & East, Term. Rep. 87, in note; Hay v. Earl of Coventry, Ibid. 83. For further observations on this subject, see Fearne's Cont. Rem. and Ex. Dev. 4th edit. vol. 2,327 note; and VOL. IV. Ibid. 347, 349, in note, by u Lassels v. Lord Corn- B B APPOINT- took a bond from the purchaser, to pay any sum not exceeding 500l. as he should by will appoint; 1. S. by will, appointed payment of it to his relations. But a bill being brought by his creditors, the court held, that, having power to dispose of the 500l. at pleasure, it must be looked upon as part of his estate; and considered as assets liable to the payment of debts. And, even if the donee of a power to appoint, appoint to a third person, in trust for him to appoint to other persons, and he actually do so appoint accordingly, yet, if the trust be such as that it is optional in him to observe it or not, the claim of his creditors will be preferred to that of the persons to whom he has appointed; for, in this case they claim under the appointment or gift to him, which is paramount his disposition under the recommendation. Thus, where a sum of money was settled in trust for such persons as the wife should appoint; she appointed to her husband, to be employed by him to such purposes or intents as he should think fit". He, by his will, devised it amongst the children of a poor clergyman, and declared, that such disposition was in pursuance of his wife's direction. The creditors of the husband brought a bill to have the money applied to the payment of their debts, as part of his assets. And, per curiam, the question is, whether the wife considered him as a trustee of the money, and a bare instrument to convey to other persons, or, whether he had the ownership; if it were his own property, certainly no act of his could dispose of a creditor's right. If a man had the use of a thing, and the power of giving it to whom he pleased, he was undoubtedly the owner of it. Here, it was given to be employed in such purposes as the husband should think fit; and there was no instance of a construction in favour of legatees to the prejudice of creditors, unless the creditors founded their right under the will itself. x Thompson v. Towne, 2 Hinton v. Toye, 1 Atk. 465. And an express declaration that the property appointed shall be exempt from the debts of the appointee, will not avail. Where, therefore, an appointment was upon trust, to apply money from time to time in a manner most beneficial for the personal support and maintenance of a brother, his wife and children, but not for the payment of his debts, it was, so far as it exempted it from debts, held a bad appointment: for, in that restraint, the appointor had exceeded the power given by law, because the interest in the fund, when appointed, must be left to take the fate of being the property of the appointee, and, of consequence, would be subject to the claims of his creditors z VI. THE MEANS BY WHICH AN APPOINTMENT MAY BE AN appointment may be defeated, annulled, or varied either, 1. For want of the circumstances required by the power to attend it (which has already been considered); 2. by an extinguishment of the power by which the appointment is authorized to be made; 3. by a deficient consideration, or by fraudulent circumstances attending the making; or, 4. by a revocation of the uses when made; 5. by execution, without reserving a new power. APPOINT MENTS. 1. With respect to the extinguishment of the power au- Extinguishment thorizing the appointment, a distinction has been taken of powers. between those powers which are simply collateral, and those which are not simply collateral, but relate to the land over which the power is to be exercised; the latter of which may be extinguished by act of the donee, but not the former; for as a power, which is simply collateral, conveys no interest whatever to the person who is to execute it, either in the estate out of which the power takes effect, or in the estate created by virtue of the power, the law considers such person as having barely a naked autho z 2 Ver 645. MENTS. APPOINT- rity to do the act necessary to execute the power, and therefore holds, that any act done by such person, with a view of affecting the estate, is, quoad the exercise of the authority, merely void, and will not extinguish his power: if, therefore, a feoffment or release be made, or a fine be levied, of the estate, by a person who is donee of such simply collateral power, it will be wholly nugatory as to the extinguishment of his power; for powers given to strangers, being intended for the benefit of some third person, the extinction of them would be injurious to the person intended to be benefited by them". Collateral powers, moreover, not being in the nature of rights or titles, cannot, from their nature, be released. With respect to their not being destroyed by feoffment, fine or recovery, every man, it is said, is estopped. from claiming any estate contrary to his own feoffment; but if a stranger, with a power of revocation, makes a feoffment, levies a fine, or suffers a recovery, and afterwards revokes, the person claiming the estate under the revocation is in immediately by, and makes his title immediately from, the original settlor or devisor, and not by or from the feoffor, conusor or recoveree: he is not therefore bound or estopped by any act of the feoffor, conusor or recoveree. Thus, by the old law, if cestui que use devised that his feoffees should sell his land, and died, and his feoffees made a feoffment over; yet it was held, that the feoffees might sell against their own feoffment, because the power to sell was merely collateral to the right to the land, and the vendee took nothing by the feoffment. But with respect to powers not simply collateral, but relating to the land which is the subject of the power, it is widely different; for where powers are given or reserved to any person who has an estate or interest, either present a 2 Ves. 79; Hard. 415; S. C. Moor, 605, 5th Reso14 H.7, fol. 1, b; 1 Rep. 111; lution. Digges's case, Ibid. 174; or future, in the land, the exercise of these powers is considered as advantageous to him; and there is therefore no reason why he should not be allowed to part with, or exclude himself from the benefit of them. Such of those powers, therefore, as are in the nature of powers annexed to the estate, may, it is agreed, be extinguished by release, feoffment, fine or common recovery. These powers also are liable to be extinguished or suspended by any of the conveyances which are said not to operate by transmutation of the possession, as bargains and sales, leases and releases, and covenants to stand seised; for whoever has an estate in the land, may convey that estate to another, and it would be unjust that he should afterwards be admitted to avoid, or do any thing in derogation from his own grant; any assurance of this nature, therefore, which carries with it the whole of the grantor's estate, is a total destruction of the power appendant to that estate; and, by parity of reason, any such assurance as carries with it a part only of such estate' (as a term for years or an estate for life) suspends, during the continuance of that estate, the exercise of the power, or at least the estate to be raised by it, and any such assurance as induces a charge only upon the estate, as a grant of a rent, necessarily subjects the estate created by the power to that charge. Thus, if tenant for life, with a power appendant to revoke and limit new uses, make a lease for life; this will suspend his power over the fee. So, if tenant for life, having a power to make leases for one-and-twenty years, or three lives, charge the land with a rent, and then execute his power, the charge will not be thereby defeated during his life-time; and it would be the same, if he had before covenanted to stand seised to the use of another during his life, because the power in that case is annexed 2 Rol Abr. 263, pl. 2, b Co. Lit. 342, b. n. (1); but see post, 376, Jenkins v. Keymis. C 35, 40. APPOINT- |