feudal system. The grand division is into freehold and less than freehold. The characteristic of a freehold is that it must at least continue for the life of some specified person or persons, or beyond that, be capable of descent to heirs, in which last case it is termed a freehold of inheritance. All other "estates" are less than freehold.

Out of these arbitrary distinctions grow complex legal rules not necessary now to be stated, except so far as they bear a close relation to the subject in hand. One leading topic proper now to be considered is the law of "remainders." By a "remainder" in real estate law is meant the residue of an estate, where some prior interest of a limited nature, called a "particular estate,” is created by the same instrument. A simple illustration is found in a will, where a testator gives a house and lot to A. for his life, and the residue of his interest to B. The amount given to B. is termed a "remainder." This subject is fruitful in subtle distinctions, which in some of the States have been much disturbed by statute. Without going into detail, the important remark is that this branch of law is not applicable to personal property. The law of freehold and non-freehold estates is confined to landed interests. So also is the technical law of remainders.

It must not be understood that there are no future interests possible in personal property. There certainly may be. For example, there may be trusts to take effect at a future day, or other executory interests in the nature of the "executory devises " of real estate law, in which the intention of the testator is more fully regarded than in the case of remainders.

There is a practical difficulty in bestowing upon one person the temporary ownership of personal property, and upon another the residuary interest in the same property, owing to the fugitive and perishable nature of the property itself. A distinction must be taken between that which can only be used or enjoyed by consuming it, and that which can be used by one, and still remain for the use and enjoyment of another. In the first class of cases, the gift of the use of the chattel for a term is an absolute gift, since the gift would otherwise be of no value. This result might be avoided if an owner should direct the chattel to be sold, and the proceeds to be invested, and the income paid to A., say for life, and afterwards the fund conveyed to B. In this case, it is plain that the interest of the fund can be distinguished and separated in ownership from the fund itself. So if one should give his law library to be used by A. for his life, and the books themselves, after A.'s right had terminated, to B., there would be, without any sale, a possible division of ownership. A. in such a

case is temporary owner; B. is the ultimate owner. Each has rights which a court ought, when its aid is properly invoked, to protect. An injunction might be resorted to if A. threatened to injure the property, or he might in a proper case be required to give security. As long as there is no wrong or threat of wrong, there would in general be no more exacted than that a list of the books should be supplied to B., so that he might have the means of knowing what should be forthcoming at A.'s death. It would, however, be a general rule that money would not be paid over, by order of the court, to A. under such circumstances, unless he gave adequate security for its payment to B., when the time prescribed by the will or other instrument arrived.

Questions of this kind may arise in marriage settlements or wills. They do not, from the nature of the case, usually arise in mere business transactions. They may occur as to all forms of personal property, such as government securities, railroad and other stocks, bonds, mortgages, etc.

Powers. This subject is important as affecting both real and personal property. It is more fully developed in the case of real property, but it has its appropriate place here. Powers of the class now to be considered appear for the most part in marriage settlements and wills.

In the outset, a distinction should be taken between an ordinary power of attorney in business affairs, and those now under consideration. A "power of attorney" is merely a formal mode of constituting an agent. It implies a principal, and the legal theory is, when any act is done by the agent, that it is really performed by the principal through the medium of the agent. The questions governing such a power are to be solved by general rules derived from agency. The powers now in question have nothing to do with agency. They are in their origin a branch of the law of

trusts.

A single illustration will suffice to show how these powers arose. Let it be supposed that A. made over a fund amounting to $25,000 to B. to hold in trust for A. himself. B., having the formal title, thereupon became a trustee for A., who was then a cestui que trust or beneficiary of a trust. His rights, henceforth, are to be administered by a court of equity, having exclusive jurisdiction of the subject, and following rules of its own, varying from those adopted in the common-law courts. Among other rules, was the right of A. to designate some other person to be the beneficiary, and to reserve the right to revoke a designation once made, and to substitute another beneficiary. The control which A. thus had over the subject-matter was

termed a power to "appoint," and after appointment to "revoke," and to make a new appointment, etc. All the while the trust might continue, and so the matter resolved itself into the designation of a cestui que trust, and the recalling of the designation, and the substitution of another cestui que trust in his place. This was not the only mode of proceeding. A. might, in the beginning, instead of reserving the power to himself, have conferred it upon another, termed a "donee "donee" of the power, who might proceed to "appoint" and "revoke " as before. It is plain that under such circumstances the donee's authority is limited and circumscribed by the power. He acts not as owner, but under a delegated authority. Though not an agent, he is an instrument of another person, and must follow the line chalked out for him. If authorized to appoint by deed, he could not do so by will, or vice versa.

Out of this class of authorizations springs a set of highly complicated and refined rules, some of which are too subtle for practical use. The subject has been codified in New York, and a statutory set of rules introduced applicable to both real and personal property, which, though an improvement on the common law, still require careful study in their application, and present various questions not free from difficulty. The idea of a trust which pervaded the old law has been removed, and the power has been made to attach to property whether held in trust or not.1

1 The principal writers upon "Powers" are Sugden (afterwards Lord St. Leonards), Chance, and Farwell. Sugden's treatise is the great storehouse of learning upon this subject, and his own views carry with them great influence. He is a writer of authority. Farwell's work is much more compendious, but it contains the recent cases, and possesses much practical utility.

The New York regulations are found in the Revised Statutes, Part II., Chap. I., Tit. II., Art. 3. Powers are there classified into such as are general or special, or are beneficial and in trust. A power is declared to be general where it authorizes an alienation of property in fee to any alienee whatever. In other words, it must authorize the transfer of the entire interest without restriction as to persons. In opposition to this broad authority there may be a limited or circumscribed power called a special power. It may be limited in two re

spects one, where, if a transfer of a fee is authorized, the person or class of persons to receive the estate is designated; and the other, where an interest less than a fee is dealt with. Each kind of power may be beneficial, when no person other than the donee has by the terms of its creation any interest in its execution. In other words, such a grantee may exercise the power for his own benefit. Either a general or special power may be in trust when the donee is not to exercise it for his own benefit, but a duty is imposed upon him to make use of it for others. If the duty be to dispose of proceeds after the power is exercised, as for example, if there be a general authority to sell to any one, but to divide the proceeds between A., B., C., and D., then there would be a general power to sell in trust to divide the proceeds. On the other hand, if the power were to convey to specified persons, there would be a "special power in trust;" and there would also be a

Suspension of the ownership of personal property. - The rules on this subject apply to clauses in an agreement or a will whereby the ownership of property does not for the time being become absolute, but is made to depend on a contingency only upon the happening of which the ownership is to become absolute. It is readily to be perceived that this might be a very remote event, so that during all the intervening period there would be no determinate owner.

The postponement of absolute ownership to a remote period is opposed to the policy of the law. A rule mainly applied by decision to real estate is also applicable to personal property. Ownership at common law could not be postponed beyond a life or lives in being at the time of the creation of the estate or interest, with the further possible period required for the gestation of a child and an additional suspension of a period of twenty-one years as an absolute term.

This rule is the slow product of generations of judges as applied to the particular state of things existing in England. It has long been the practice, in case of a marriage, to settle land upon the husband for his life, with a succeeding estate upon the wife for her life, with the remainder to the children of the marriage, usually by entailment, with some differences of form. A common form is on the sons successively; in case of death without issue, and if there be no sons, then upon daughters; and if the parties

special power in trust, when any person other than the grantee is designated as entitled to any benefit from the disposition or charge authorized by the power. This would include a benefit derived from a lease of the property, or a mortgage of it, where that was authorized by the power, and was according to law.

The whole system of powers in trust thus embraces: (a) cases where one is authorized to sell or convey property with out restriction, but at the same time is required to divide the proceeds in a prescribed manner; (b) where one is required to convey an entire interest to specified persons, the restriction being upon the power to convey instead of upon the dispo sition of the proceeds; (c) cases where inferior interests or estates (such as leases, mortgages, etc.), or others less than the whole are created, and some persons other than the grantee of the power is declared to be entitled to them.

The common-law classification is different from this, and made to turn upon

the point whether the donee of the power has some interest in the property over which the power is exercised, and also whether the exercise of it in some way acts upon the interest which he possesses. Powers from this point of view are either (a) appendant, (b) in gross, or (c) collateral. Thus if the donee has a temporary interest in the property, as for life, and the power acts upon that, it is appendant; if the power does not affect the life interest, but only the succeeding interest, it is in gross; if the donee has no interest whatever, but is, in other words, a stranger, the power is collateral. These are very technical distinctions.

As a power is a mode of creating an estate, it should be exercised in such a way as not to offend against rules of public policy. The rules governing the general subject should be sought in the treatises referred to, and in the reported cases. Careful attention must be given in New York to the statutes.

to the marriage die childless, to others, perhaps the grantor himself. Each of these uncertain events must happen during the life of the parents. If an infant child should survive his parents, he would be able at twenty-one to dispose of the property. So, if the parents were surviving when a child entitled under the settlement became of age, they could unite in a conveyance, and dispose of the estate. The power to sell would not be in abeyance or suspended for a period longer than their two lives, and the minority of a child, and a possible period of nine months in case of a posthumous child.

It was from this class of cases that the rule in question was first worked out, and the facts could be formulated so as to state that the ownership of property could be suspended for lives in being, and during the period of infancy (twenty-one years), and nine months in case of the birth of a posthumous child. After a time there came cases in which the suspension was for more lives than two. The principle was deemed to be the same, since no matter how many lives might be named, the suspension was in reality but for one life, that of the longest survivor.

The most difficult question that arose was, whether the twentyone years could be taken as a fixed and absolute period, without reference to infancy. For example, a testator provides that his estate shall pass to a non-existent charitable corporation having powers which he prescribes, should it be chartered within the period of twenty-one years after his death. Such a provision has no reference to the ordinary elements in suspension, namely, duration of life, infancy, or gestation. Is this lawful? The answer would seem to be, that as public policy underlies this whole subject, there can be under the authorities no public policy opposed to a moderate suspension, but only to a lengthened one, and that twenty-one years is a moderate period in analogy to what had already been established as to infancy, and is accordingly valid.1

The case of Cadell v. Palmer is an instance of a desire on the part of a testator to go nearly to the extreme verge of the law. He suspended ownership during the continuance of twenty-eight lives, and the survivor of them, and a fixed period of twenty years besides. The will was declared to be valid, as the twenty years suspension was lawful (with or without the lives), as being less than twenty-one years, which was the extreme limit. The

1 Cadell v. Palmer, 10 Bing. 140; on appeal, 1 Cl. & F. 372. The discussions in the House of Lords turned upon the question whether prior decisions had not

really disposed of the question. 1 Cl. & F. pp. 399-410. The judges in advising the Lords enter into the matter of reasonableness, pp. 412, 417.