Common 169. POWERS SECTION 1. or authorities by which one person enabled another to do an act for him, were well known to the common law; and were divided into two sorts; naked powers, or bare authorities; and powers coupled with an interest. Thus Littleton says, a man may devise that his executors shall sell his land, in which case, the power is a naked one. 1 Inst. 113 a. And Lord Coke, in his Comment, observes, that if a man devises lands to his executors, to be sold; this is a power coupled with an interest. 2. There is a material difference, in common law powers, between a naked power or bare authority, and a power coupled with an interest. In the case of a naked power, if it is exceeded in the act done, it is entirely void. But in that of a power coupled with an interest, it is good for so much as is within Jenk. 205. the power, and void for the rest only. rived from Uses. Tit. 11. c. 4. $4. 3. With respect to powers derived from the Powers de doctrine of uses, it has been stated in a former title, that powers of revocation and appointment may be inserted in conveyances which owe their effect to the statute of uses; and that when executed, the uses originally declared cease, and new uses immediately arise to the persons named in the appointment, to which uses the statute transfers the legal estate and possession. 4. Powers being found to be much more convenient than conditions, were generally introduced into family settlements. And although several of these powers are not usually called powers of revocation, such as powers of jointuring, leasing, and charging settled estates with the payment of money, yet all these are in fact powers of revocation; for they operate as revocations, pro tanto, of the preceding estates. 5. Powers of revocation and appointment may be Powers relating to the reserved, either to the original owners of the land, Land. or to strangers; from whence arises the general division of powers, into those which relate to the land, and those which are collateral to it. Powers relating to the land are those which are given to some person having an estate or interest in the land over which they are to be exercised. These are again subdivided into powers appendant and in gross. 6. A power appendant is where a person has an Appendant. estate in land, with a power of revocation and appointment, the execution of which falls within the Hard. R. compass of his estate: as where a tenant for life has a power of making leases in possession. 415. Clere's Case, 6 Rep. 17 b. Goodill v. 192. 1 Ves. Jun. 637. 10-254. MSS. of Or in gross. 7. If a person limits his estate to such uses as he shall appoint by his will, and in the mean time to the use of himself and his heirs; the settlor has a qualified fee, and a power of appointment appendant to his estate. 8. In a modern case, the Court of Common Pleas Was of opinion, that a power of appointment annexed to an estate in fee simple was void, as being inconsistent with the estate. Lord Eldon has denied this doctrine, and said, it had been long settled that a person might reserve to himself a power of limiting an estate by an appointment, taking at the same time to himself the whole interest in the fee, over which the power was to be exercised. 9. In an opinion of Mr. Fearne's, he says, the reservation of a power of appointment of an use, is not rendered void by a subsequent limitation of the fee to the same person. It was a mistake to suppose that a limitation of the fee comprehended every power of appointment whatever. For a person seised in fee could not, by a mere instrument in writing, pass the fee to, or make it vest in another, but a proper form and mode of conveyance was requisite ; whereas under a power of limiting the use, a person may, by such instrument only, vest the fee in another, without any of the usual ceremonies requisite to a conveyance of lands. 10. A power in gross is, where a person has an estate in the land, with a power of appointment, the execution of which falls out of the compass of his estate; but not withstanding is annexed in privity to it, and takes effect in the appointee, out of an interest vested in the appointor. 11. Thus where a tenant for life has a power of creating an estate, to commence after the determina tion of his own, such as to settle a jointure on his Slater, Hard. 419. wife, or to create a term for years, to commence after Edwards v. his death, these are called in powers gross; because the estate of the person to whom they are given, will not be affected by the execution of them. 12. Powers collateral are those which are given to mere strangers, who have no interest in the land: thus where powers of sale and exchange are given to trustees, in a marriage settlement; they are said to be collateral to the land. Powers col- teral to the 263. 13. A power relating to the land, being part of the Cowp. R. old dominion, is favourably expounded; whereas a power collateral to the land is considered as a bare authority, and therefore construed strictly. Deeds inserted. 14. Common law powers, or authorities, may be In what inserted in every kind of deed; but powers derived from the doctrine of uses can only be inserted in deeds deriving their effect from that doctrine, and operating by transmutation of possession, that is, in declarations of uses of fines, recoveries, and releases; for it is doubted whether powers can be inserted in deeds of bargain and sale, or covenants to stand infra, c. 15. seised. for created. 15. In the creation of powers there is no necessity By what any technical words; as it will be sufficient if the Words intention of the person who creates the power be clearly manifested. 16. Thus where the words-" and if the said Snape v. A. B. shall make any estate in fee simple, or fee tail, then the use shall be, &c." were inserted in a deed, without mentioning any particular lands; it was resolved that they should be intended of the lands comprised in the deed; and were sufficient to create a power. Turton, 2 Roll. Ab. 262. Moo. 611. Epis. Oxon. v. Leighton, 2 Vern. 377. Holt v. Burleigh, Prec. in Cha. 293. 17. So where the words were-"It shall be lawful for B. to alter, change, &c. any use, and to limit new;" or "that after altering, changing, &c. said uses, the fine shall be to the uses newly limited;" they were held sufficient to create a power. 18. A. on his marriage with B. conveyed lands to C., in trust for himself for life, remainder to B. for life, remainder to the heirs of their two bodies, remainder to A. in fee; with a proviso, that in default of issue of the marriage, C. should convey to such uses as the survivor should appoint. A. devised the land to D., and died without issue. Lord Keeper Wright said, that Dyer's scintilla juris remained in C.; and though the proviso was unskilfully penned, yet it amounted to a power of revoking, and limiting new uses. 19. A man made a settlement upon the marriage of his son with one B., in which there was a proviso, that if B. should happen to survive her husband, not having issue, or without issue of their two bodies lawfully begotten, B. to have power to sell and dispose of such lands. The husband died leaving issue. Some years after, that issue died without issue, and then the wife sold the lands. A bill was brought by the heir of the husband, to have the deeds from the vendee, as not coming in pursuant to the power; and it was insisted for him, that the husband leaving issue, the wife did not survive her husband, not having issue, or without issue; and therefore the power never took effect. The Lord Chancellor said, there was no occasion in this case to make any artificial construction of the proviso, for that the words thereof fell in naturally with the meaning of the parties, and gave her a power to sell, when the issue |