14. Another classification of powers is into general, and special or particular. If the donee is at liberty to appoint to whom he pleases, it is a general power. If he is restricted to an appointment to or among particular objects only, it is of the latter, or special class.1

15. If the power be to create a new estate in any one, it is said to be a power of appointment, if to divest or abridge an existing estate, it is called a power of revocation. But as remarked by Mr. Sanders, every power of the kind under consideration is a power of revocation and new appointment, for the new uses and estates created under the appointment, must necessarily (to the extent of such appointment), revoke, defeat, or abridge the uses which existed and were executed previously to the new limitation, and though sometimes an express power of revocation is limited, prior to the power of appointing new uses, it is never necessary.2 In Bird v. Christopher, the only power given in the deed was that of revocation. But Mr. Burton says, that in such cases" if this be done upon the original conveyance, a power

of appointment is implied. But if a mere power of a revoca[*308] tion be inserted in an instrument of *appointment, the exercise

of it can only restore the uses of the original settlement." 4 The mode in which this operates is this; the exercise of the power of revocation and appointment extinguishes the use in the former holder of the estate, and raises a new one in the appointee, to which the statute executes or annexes the seisin and possession, and thus creates a new estate in the appointee.5

.

SECTION II.

OF SUSPENDING OR DESTROYING POWERS.

1, 2. When a donee may release a power, and when not.

3.

Of tenant for life with power over the reversion, conveying the estate.

4. Powers appendant may be released.

5. In what cases powers are suspended.

1 Co. Lit. 271 b, Butler's note, 231, § 3, pl. 4; Wms. Real Prop. 255.

2 Sand. Uses, 154; Co. Lit. 271 b, Butler's note, 231, § 3, pl. 4; Tud. Lead. Cas.

264; 4 Kent, Com. 415.

Bird v. Christopher, Styles, 389.

Burt. Real Prop. § 185; 4 Cruise, Dig. 220.

54 Cruise, Dig. 219.

8.

Power not suspended, though estate appointed be a future one.

9.

An unexecuted power of revocation does not affect the existing estate.

10. Future limitation never a springing use if it can be a remainder.

1. After the foregoing explanations, it seems necessary, though at the hazard of repetition, to say something more of the capacity of a donee of a power to suspend, extinguish, or merge it, which may sometimes be done by a release of the power, and sometimes by an alienation of the donee's estate. In the first place, a mere collateral power cannot be destroyed or suspended by an act of the donee.1 And the same is true of extinguishing powers in gross by a conveyance of the donee's estate, unless they were reserved by the grantor, or were to be executed in favor of the donee himself.2 But powers, whether appendant or in gross, may, as a general proposition, be released by the donee or owner of the power, to one having the freehold in possession, reversion, or remainder, which operates to extinguish them; for not being a trust, the execution is generally optional with the donee, and it is not competent for him to derogate *from his own grant by doing an act to deprive the person [*309] to whom he has made such release, of the estate acquired thereby.3

2. But in one case, where a father having a fund for life, with remainder to his children in such shares as he should appoint, and, in default of appointment, to the children equally, made a release of the power for the purpose of vesting in himself the share of a child that had deceased, and whose executor he was, the court refused to give present effect to the release so far as it operated to vest such share in him, although the power was in fact extinguished by the release.

And, as a general proposition, if the duty of the donee

1 Digges' case, F. Moore, 605; Tippet ". Eyres, 5 Mod. 457, s. c. 2 Ventr. 110. That the mere refusal of one having such authority, as an executor without interest to sell, to execute, "it does not disable him from executing it. See Tainter v. Clark, 13 Met. 220; Tud. Lead. Cas. 286, 295; West v. Berney, 1 Russ. & M. 431; Chance, Pow. § 3105.

2 Tud. Lead. Cas. 294; Edwards v. Sleater, Hardr. 416; Burt. Real Prop. § 180; Savile v. Blacket, 1 P. Wms. 777.

3 Tud. Lead. Cas. 295; Burt. Real Prop. §§ 181, 182; Wms. Real Prop. 256; Albany's case, 1 Rep. 102 b; West v. Berney, 1 Russ. & M. 431; Chance, Pow. §§ 3115,

3137.

• Cunynghame v. Thurlow, 1 Russ. & M. 436, n.

requires him to exercise a power at any future time, he cannot extinguish it by a release.'

3. In accordance with the foregoing doctrine, that a power in gross cannot be released, it has been held, that a tenant for life with a power of appointment as to the reversion, or of revocation as to a remainder, may execute his power though he may have aliened his own life-estate.2

4. But where the power comes within the class of appendant powers as above defined, it is competent for the donee to suspend or extinguish it constructively by his own act, or he may extinguish it by a separate formal release. Thus, if the tenant for life having a power to lease, conveys his entire estate, his power is extinguished.3 So if lands are settled on one with a power of appointment to uses, and upon him in fee if he fail to appoint, he may alien the estate as his own, and will thereby defeat and extinguish his power. Nor does it make any difference in the result, whether the alienation is by the act of the donee of the power, or of the law. Accordingly,

where a tenant under a limitation like that above stated, [*310] became *bankrupt, it was held that the transfer in bank

ruptcy divested him of his entire estate, and the power of appointing the remainder was extinguished.1

5. So a power may be suspended if it be a power appendant, as where a tenant for life, with a power of appointment and revocation, instead of conveying his whole estate, demised the land for ninetynine years, if he should live so long, to secure an annuity, it was held that he could not, by afterwards executing the power, defeat this demise, it having been made for a good consideration. The power was thereby suspended.5

6. So a power of revocation and appointment may be partially suspended as to its taking effect, as where one having an interest in land with a power of appointment, leased the land. Although he

1 Wms. Real Prop. 256; Chance, Pow. § 3121.

2 Tud. Lead. Cas. 294; Burt. Real Prop. § 176; Chance, Pow. § 3172.

8 Ren v. Bulkeley, Doug. 291, 292; Penne v. Peacock, Cas. temp. Talb. 43; Chance, Pow. §§ 3157, 3159; Tud. Lead. Cas. 260; Burt. Real Prop. § 175.

* Burt. Real Prop. § 177; Wms. Real Prop. 251; Tud. Lead. Cas. 290; Doe v. Britain, 2 B. & Ald. 93; Chance, Pow. § 3155; Maundrell v. Maundrell, 10 Ves. 246.

› Tud. Lead. Cas. 287; Goodright v. Cator, Doug. 477; Bringloe v. Goodson, 4 Bing. N. c. 734.

could not, by afterwards executing his power, defeat his lease, the power was held to be suspended in its taking effect to the extent of the lease only, and that the appointment was good for all beyond that. The foregoing propositions may be further illustrated by analyzing one of the cases above cited, in which a tenant for life had by will a power to lease for twenty-one years, and by the same will the executor had a power to mortgage in fee or for years. The tenant made a demise of the land for ninety-nine years if he should live so long, and then demised it under his power for twenty-one years. Subsequently, the executor executed the power to mortgage, by a lease for one thousand years. The mortgagee sued the lessee under, the lease for twenty-one years, for rent which he claimed as reversioner. The tenant in defence set up the prior lease of ninetynine years, and contended that the granting of that lease was a suspension of the power to lease for twenty-one years during the first term of ninety-nine years. This first lease took effect out of the life-estate of the terrant for life, and not out of his [311] power, and so there was then a reversion in him. Had the question of priority of right been between the lessee for ninety-nine years and the lessee for twenty-one years, in the absence of any estate created by the execution of the executor's power, the former must prevail, since the lessor could not by his second lease prejudice the one claiming under the first. But regarding the leases which were executed under the powers by themselves, in their relation to each other, they were to be considered as if made by the will which created the powers. And therefore, as between the lessee under the power in the tenant for life and the lessee under the power in the executor, the last, being later in point of time, was to be regarded as assignee of the reversion of the first, and entitled to the rent. Nor could the lease for ninety-nine years in a stranger be set up against this claim, for the making of that did not suspend the power in the life-tenant to lease for twenty-one years, which therefore was good as to every one except to override the term for ninety-nine years, and was, consequently, good as to the appointee of the executor under his power to mortgage.2

1 Yelland v. Ficlis, F. Moore, 788; Snape v. Turton, Cro. Car. 472; Wms. Real Prop. 251; Tud. Lead. Cas. 288; Wilson v. Troup, 2 Cow. 237.

2 Bringloe v. Goodson, 4 Bing. N. c. 726.

7. But so far as the execution of the power would operate to defeat an estate which the donee had for a valuable consideration created out of his own estate or interest, as for instance by the lessee for the twenty-one years setting up his lease against the lessee for ninety-nine years, the law suspends the power in order to prevent any one from working a fraud or injustice.1

8. It is no obstacle in the way of executing a power that the estate thereby to be created cannot be immediately enjoyed, or even be a vested estate at the time of the execution, nor would such a state of things of itself operate to defer or suspend the execution of a power. Thus where an estate was limited to S for life, remainder to her son and his heirs, but if he died in her lifetime without issue, then to such person as S should appoint, it was held, that if S made this appointment in the lifetime of the son, it [*312] would be a good one, and would take *effect upon and in event of the son's dying in her lifetime without issue.2 But still the appointment should be immediately to the use of the person who is intended to take beneficially under the proposed execution of it, as otherwise the estate created might be left in another's hands, and the one intended to be benefited only have an equitable trust in it.8

9. But though an existing unexecuted power of revocation and appointment may operate to defeat an existing estate in the present holder of the land, though holding under the instrument creating the power, whenever the donee of the power may see fit to execute it, it is not deemed in law to render the estate of such holder a contingent one, but this is to all intents a vested estate, though liable to be divested by the execution of the power. And such would be the character of a remainder limited after an estate for life, though the tenant for life were clothed with a power of appointing remainders, and the former remainder over were limited by the deed creating the power, to the person named in default of such appointment, by the tenant for life. It would be a vested and not a contingent estate.1

1 4 Cruise, Dig. 221.

2 Dalby v. Pullen, 2 Bing. 144; Tud. Lead. Cas. 546; Chance, Pow. § 402.

8 Co. Lit. 271 b, Butler's note, 231, § 3, pl. 4.

Doe v. Martin, 4 T. R. 39; Chance, Pow. § 2749; Osbrey v. Bury, 1 Ball & B. 53; Watk. Conv. 268; Coventry's note; Braman v. Stiles, 2 Pick. 460; Fearne, Cont. Rem. 226; Cox v. Chamberlain, 4 Ves. 631; 4 Cruise, Dig. 146.