10. It is a rule of universal application that no limitation shall be deemed to constitute a springing use, which can by any just construction be established as a contingent remainder.1

SECTION III.

POWERS APPLIED BOTH IN AMERICAN AND ENGLISH LAW.

1,2. Provisions as to powers in the law of New York.

3. Equity adopts as to powers the rules existing prior to the statute of uses.

4. How far this is applied in creating estates of inheritance.

5. Power to appoint to a person, implies a life-estate only.

1. As powers have been chiefly made use of in effecting family settlements which are comparatively infrequent in this *country, they have been rarely applied, though fully [*313] recognized here as forming a part of the American law. It therefore becomes necessary to know something of the subject as a branch of general jurisprudence, in order to apply some parts of the legislation of the country. Thus, in New York, it is declared, that a devise of lands to executors or trustees to be sold or mortgaged, where these are not to receive the rents, shall vest no estate in the trustees, "but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the testator subject to the execution of the power.2

2. So, many trusts are by that statute declared to be powers, no estate vesting in the trustees, and the third article of the Revised Statutes of New York, from the eighty-sixth to the one hundred and forty-eighth sections, is devoted to the subject of powers, but is too extended to admit of being incorporated into a treatise like this. Thus it is held, that if A grants land to B in trust for such person as C shall appoint, it is a valid power in trust under this statute, by which, as a mere trust, it is void, and creates no estate in the trustee, inasmuch as there is no duty for him to do as to the estate.

1 Burt. Real Prop. § 797; Southcote v. Stowell, 1 Mod. 237; Purefoy v. Rogers, 2 Saund. 388.

2 New York Rev. Stat. Art. 2, § 68; Lalor, Real Est. 180.

But if C were to make an appointment in favor of any one, the power vested by deed in the trustee would become operative in him, to convey the estate to the appointee. But in the case cited below, C having died without executing the power of appointment, the whole conveyance failed, and the estate remained in the grantor unchanged, but discharged of the power.1

3. Courts of law, wherever powers are recognized as existing under the statute of uses, adopt in respect to them the rules which prevailed in equity before that statute, and they are thus capable of being made the means of defeating, modifying, transferring, and varying, in every imaginable manner, any or all of the equitable interests which a conveyance may have originally described and limited.2 • 4. It is accordingly held, that if the intention is clear, a power may enable one to make disposition of a fee, although no words of inheritance are used, as, where a testator gives a power to sell lands, the donee may sell the inheritance, because the testator gave the same power which he himself had.3 Where an estate is given absolutely to such uses as a person shall appoint, without any prior limited estate, it is an estate in fee. And this extends to deeds as well as to wills, by which powers of appointment are created. [*314] There is little if any difference in the construction of

deeds and wills on this point. A general power in a deed as well as in a will, to limit " any estate or estates," will authorize the limitation of a fee or any less estate. Thus where by will a testator devised his lands to his wife for life," and then to be, at her disposal," provided she disposed of it after her death to any of her children, it was held she had an estate for life, and might by will create a fee in any of her children, to whom she should appoint the estate. In deeds, however, technical expressions are, in some cases, absolutely necessary, so that they cannot be supplied by others. In wills technical expressions are never necessary."

1 Hotchkiss v. Elting, 36 Barb. 38.

2 Right v. Thomas, 3 Burr. 1446; Burt. Real Prop. § 125; 2 Flint. Real Prop. 544; Ren v. Bulkeley, Doug. 292.

31 Sugd. Pow. 476; Wilson v. Troup, 7 Johns. Ch. 34, 35; 4 Cruise, Dig. 136. Langham v. Nenny, 3 Ves. 467.

Chance, Pow. §§ 1207, 1208; Liefe v. Saltingstone, 1 Mod. 190.

Dighton v. Tomlinson, Com. 194, s. c. 1 P. Wms. 171.

7 Co. Litt. 271 b, Butler's note, 231.

5. But if the power is to appoint to such "persons may choose, it authorizes only a life-estate.1

SECTION IV.

HOW POWERS MAY BE CREATED.

1. By deed or by will, and either granted or reserved.

2. May be reserved in the body of a deed or in a separate instrument.

3. No precise form required; sufficient, if intent is expressed.

4. Important whether the instrument creates a power or an estate.

5. A deed may create a power as to one parcel and an estate as to another.

6. When testator's intention is answered, the power ceases.

7,8. Of naked powers, and those coupled with an interest.

1. Powers may be created by deed or by will. They may be given to the grantee to be exercised over lands, &c., granted or conveyed at the time of the creation of the power, or they may be reserved to the grantor.2

2. If reserved, the reservation may be either in the body of the deed, or by means of an indorsement made thereon before its execution, or by a deed of the same date with the settlement, and there need be no counterpart to the deed. And it may be remarked, though perhaps not coming strictly under the head of the creation of powers, that though, if a power is contained in a *deed limiting an estate to A to such uses as he should ap- [*315] point, and, in default of appointment, to himself in fee, it was formerly much discussed whether the power was not merged in the fee, it is now settled that it is not, and that a general power of appointment may coexist with the absolute fee in the donee of a power.1

3. No precise form of words is requisite in creating a power. It

1 2 Flint. Real Prop. 549.

2 Watk. Conv. 258, and Coventry's note; Burt. Real Prop. §§ 123, 172; 4 Kent, Com. 319.

81 Sugd. Pow. ed. 1856, 158.

Sugd. Pow. ed. 1856, 105; Maundrell v. Maundrell, 10 Ves. 255-257; 4 Greenl. Cruise, Dig. 241, n.; 6 Greenl. Cruise, Dig. 490.

is sufficient if the words indicate an intention to reserve or give the power. And this applies both to cases of powers created by deed and by will.1

4. But it becomes often exceedingly important to discriminate between the terms which create a power, and those which would confer an interest upon one, the difference being, so far as the party who ultimately derives a title to the estate is concerned, that in the latter case he takes immediately from the donee of the power and interest, in the former, from the grantor himself, the donee being the medium through whom the estate is created. Mr. Chance, in the third chapter and third section of his work on Powers, has collected a large number of cases wherein this distinction has been exemplified, the most numerous of which, perhaps, have arisen under devises by which executors are directed to sell the lands of the testator. But these cases are too numerous to be repeated here. The same may be said of what the reader will find in Mr. Sugden's work on Powers, and the notes to the American edition of 1856,2 where the American cases are also collected. It will be sufficient for the present to state, that the question in the several cases turns altogether upon the intention of the grantor or devisor, as expressed in, or to be gathered from, the whole will or deed.3

[*316]

*5. In Bloomer v. Waldron, the court say: "There is no difficulty in seeing that a man may have a power coupled with an interest as to one estate, and a naked power as to another estate in the same land. For instance, the same instrument may give him power to sell a term for years and take the purchase-money for his own use, with power to sell the reversion for the benefit of another. The latter would be none the less a naked power because the former vested a title in the donee." 4

6. And it may be stated in this connection, that where it appears that the intention of a testator in creating a power has been answered, the power itself will cease.5

7. It may also be stated in explanation, and perhaps as a limita

1 1 Sugd. Pow. 118.

21 Sugd. Pow. ed. 1856, 120-134, and notes.

8 4 Kent, Com. 319; Peter v. Beverly, 10 Pet. 532; Ladd v. Ladd, 8 How. 10; Jackson v. Schauber, 7 Cow. 187; Walker v. Quigg, 6 Watts, 87; Jackson v. Jansen, 6 Johns. 73; Sharpsteen v. Tillou, 3 Cow. 651; Jameson v. Smith, 4 Bibb, 307.

Bloomer v. Waldron, 3 Hill, 361, 365.

5 Jackson v. Jansen, 6 Johns. 73; Sharpsteen v. Tillou, 3 Cow. 651.

tion of the above propositions, that as technical words are so essential to the creation of estates by deed, and their import is so generally understood, a question rarely arises upon a deed, whether the party takes an actual estate or not. Such questions usually relate to wills.1

8. One test that is given in some of the cases for distinguishing a naked power from one coupled with an interest, is, whether the donee of the power is to have possession of that to which his power relates. If he is, he is considered to have an interest, otherwise a mere naked power.2

SECTION V.

BY WHOM, AND HOW A POWER MAY BE EXECUTED.

1. Most persons may execute powers, infants, femes covert, &c.

2. Law very strict as to mode of executing a power.

3, 4. Illustrations of strict observance of the terms of a power.
5. How power to sell may not be executed.

6,7. How far a power to appoint to children extends.

8. Power by will or by legislative act a common-law power.

9. Execution of a power of appointment, only raises a use.

10. Of the seisin requisite to serve a power.

11. Distinction between these powers and powers of attorney.

12. Appointor, in a power, a mere instrument.

13. Appointee takes under the original deed as if there named.

14. In executing a power no express reference to original deed required.

15. Example of appointee taking under original deed.

16. Donee of a power may create estate to himself.

17. Execution of a power identical with the creation of a use.

18. When a power may be delegated.

19. When an assignee may execute a power.

20.

Of executing powers by two donees.

21. When powers to two or more donees survive.

22. Of powers in executors to sell.

23. Powers implying personal confidence.

24. Powers to persons as a class, as "Trustees," &c.

25. When the rule as to a class applies to executors.

26. When power of sale in executors is or is not a naked one.

1 Sugd. Pow. ed. 1856, 153.

2

Clary v. Frayer, 8 Gill & J., 403; Gray v. Lynch, 8 Gill, 403. See post, p. *324.