the principle delegatus non potest delegare. The ground upon which the first proposition rests is this: Estates, arising from the execution of powers, are in the nature of springing uses, and the seisin which is to supply them is not disturbed until some use is actually raised. Now as the case supposed did not imply that there was any confidence reposed in A for the benefit of another when the power was created, no use was raised by A's conveyance if this did *not declare any final beneficiary, and the statute was not [*322] called into operation until B designated the use.2 19. If a power be limited to a donee and his assigns, an execution of it by his assignee will be good, and this term would include a devisee of the donee.3 20. Numerous questions have arisen, and some of them of considerable difficulty, in respect to the execution of powers where two or more persons are named as donees. Ordinarily in such a case, all the donees must join in the execution of the power. And this is always true unless the contrary is expressed. In Montefiore v. Browne, a power of revocation having been given to D. G. & D. B., and D. B. died before it was executed, it was held that D. G. could not execute it.5 21. But where the power is to several persons having a trust capacity, or an office in its nature like that of the executors of a will, susceptible of survorship, and any of them die, the power will survive unless it is given to them nominatim, as to A B and C D, naming them. In the latter case the power would not survive unless it was coupled with an interest in the donees of the power.6 22. In the case of executors, moreover, this nice distinction is recognized and prevails, that if the devise is to them to sell the estate or for it to be sold, they take a trust of the estate with a power to sell. Whereas if the devise is that the executors shall sell, it is a naked power, and must be executed by all, while in the other case it 1 1 Sugd. Pow. ed. 1856, 214; 4 Cruise, Dig. 211; Broom's Max. 665. 2 Watk. Conv. 265. 8 4 Cruise, Dig. 211; 1 Sugd. Pow. ed. 1856, 215. * 4 Greenl. Cruise, Dig. 211, n.; Co. Lit. 113, Hargrave's note 146; Story, Eq. 1061; Franklin v. Osgood, 14 Johns. 553. Jur. 6 Co. Lit. 113 a, Hargrave's note 146; Story, Eq. Jur. § 1062; Tainter v. Clark, 13 Met. 220, 225; Peter v. Beverly, 10 Pet. 564; 1 Sugd. Pow. 144, 146; ante, p. *197. is not a naked power, and may be executed by such of the executors as execute the will.1 23. If the authority to sell be given as a trust to the same person named as executor, his resigning his trust as executor does And if the power be *accompanied by a personal confidence and trust in the donee or donees, he or they alone can execute it, nor can it pass to others; it must be executed by the persons named, unless an authority to substitutute another be expressly given.3 [*323] not impair his power to sell. 24. Where the power is given to several persons as a class, under a term implying more than one person, as to "trustees," "sons," "survivors," and the like, it may be executed by the survivors so long only as there is more than one of them.* 25. This would not apply to executors, for if the power is not to them, nominatim, a single survivor of the number might act. But upon the death of an executor, an administrator with the will annexed could not, as his successor, execute a power to sell lands." 26. If a will charges a trust upon land, and directs the executors to execute it, and a due execution of this requires a sale to be made, the executors may make such a sale, although they have no interest in the estate beyond doing an act that is necessary to execute the will. Such a power is not properly a naked power, which the donee may execute or not at his option; it is coupled with a trust or trusts which require the execution of the power. And a court of equity will not permit any accident, neglect of the donee, or other cause, to disappoint the interest of those who are entitled to the contemplated benefit under it. And in such a case, the power survives. But such a power must be executed by all the trustees who are qualified to act. It can 1 Osgood v. Franklin, 2 Johns. Ch. 19, 20; Shep. Touch. Hill, ed. 448; Bergen v. Bennett, 1 Caines, Cas. 16; Franklin v. Osgood, 14 Johns. 553, 562; 4 Kent, Com. 320. 2 Tainter v. Clark, 13 Met. 220, 227. 3 Cole v. Wade, 16 Ves. 27; Tainter v. Clark, 13 Met. 220, 226. 1 Sugd. Pow. ed. 1856, 146; Story, Eq. Jur. § 1062, n. Story, Eq. Jur. § 1062; 1 Sugd. Pow. ed. 1856, 146; Tainter v. Clark, 13 Met. 220, 226. Contra, Drayton v. Grimke, 1 Bail. Eq. 392. Where power is given to an executor by will to sell to pay debts, the sale may be made by an administrator with the will annexed. See also, Brown v. Armistead, 6 Rand. 593, under a statute of Virginia. • Leeds v. Wakefield, 10 Gray, 517; Greenough v. Welles, 10 Cush. 576; Gibbs v. Marsh, 2 Met. 243. not be delegated to a stranger or an attorney, nor can one executor act for the others.1 27. Every power given in a will, is considered, in a court of chancery, as a trust for the benefit of a person for whose use the power is made, and as a devise or bequest to that person.2 *28. The power given by a letter of attorney to make a [*324] sale of lands, ceases with the death of the one who gives it. It would simply be an absurdity for one assuming to act as an attorney of another, to execute a deed in a dead man's name. But where the power is coupled with an interest, it survives the donor. The donee of the power executes it in his own name independent of the existence of the donor.3 29. A power is not coupled with an interest merely because the donee has, for instance, an interest in the proceeds of the sale. The interest must be in the land itself like a title to land. Thus in the cases of Bergen v. Bennett, and Wilson v. Troup, the mortgagee had a power of sale which was held not to determine with the death or alienation of the estate by the mortgagor. In Hunt v. Rousmaniere, Chief Justice Marshall thus defines what is meant by "a power coupled with an interest." "Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power?. We hold it to be clear, that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing." After stating that a power to A to sell for his own benefit would not give him an interest, nor would it if his power was to sell for the benefit of B, he adds: "A power to A to sell for the benefit of B, engrafted on an estate conveyed to A, may be exercised at any time, and is not affected by the death of the person who created it. It is then a power coupled with an interest, although the person to whom it is given has 1 Osgood v. Franklin, 2 Johns. Ch. 21; Franklin v. Osgood, 14 Johns. 562, 563; Zebach v. Smith, 3 Binn. 69; Berger v. Duff, 4 Johns. Ch. 368; Peter v. Beverly, 10 Pet. 565; Story, Eq. Jur. § 1062; Hertell v. Van Buren, 3 Edw. Ch. 20; ante, p. 206. 2 Hunt v. Rousmaniere, 2 Mason, 244; s. c. 8 Wheat. 207; 2 Sugd. Pow. ed. 1856, 158. Bergen v. Bennett, 1 Caines, Cas. 15; Hunt v. Rousmaniere, 2 Mason, 249; s. c. 8 Wheat. 203; Wilson v. Troup, 2 Cow. 236; ante, Vol. I. p. *499. no interest in its exercise. His power is coupled with an interest in the thing which enables him to execute it in his own name, and is therefore not dependent on the life of the person who created it.130. Such a power of sale may be assigned to another person by a conveyance of all the interest of the donee of the power, [*325] *and may be exercised by such assignee. But it is not susceptible of division, and therefore if, for instance, a mortgagee with such a power were to sell a part of the estate mortgaged, the power remains in himself alone, and he only can exercise it.2 31. From the foregoing propositions and authorities, certain important principles are established in relation to the execution of powers, among which are,-1st. If the power be simply one in which no person is interested except the donee, it is a matter of election on his part whether to exercise it or not. No court will interpose to compel him to do so.3 2d. But if the power be coupled with a trust in which other persons are interested, as a power to executors to sell to pay debts, a court of equity regards it as a duty in the donee, and will compel its execution. 3d. If the power is coupled with an interest, the execution of it is not only a matter of right and election in the donee, but the power becomes annexed to the estate and passes with it to an assignee of the donee.5 32. But after all, it will have been perceived that even powers of appointment, viewed in regard to the individuals who are to exercise them, are a species of dominion over property quite distinct from that free right of alienation which is annexed to every estate. 33. Instances have already been mentioned, of one having an estate in lands, and also a power to appoint the same to uses, or to sell and the like. In such cases, if he sells the land without referring to his power, it will be construed to be a conveyance of his interest, and not an execution of the power. The land passes by virtue of his ownership. But if he has no such interest, and [*326] the instrument by which he assumes to pass the *estate conforms to the requirements of the power, it will be 1 Ante, Vol. I. p. *494, Vol. II. p. *316. 8 1 Sugd. Pow. ed. 1856, 158. 5 Wilson v. Troup, 2 Cow. 236. 2 Wilson v. Troup, 2 Cow. 236, 237. Story, Eq. Jur. § 1062. 6 Wms. Real Prop. 249. 7 Hay v. Mayer, 8 Watts, 203; Jones v. Wood, 16 Penn. St. 25; Clere's case, 6 Rep. 18; 1 Sugd. Pow. ed. 1856, 432; Denn v. Roake, 5 B. & C. 720; Probert v. Morgan, 1 Atk. 440; Co. Lit. 271 b, Butler's note 231; 4 Cruise, Dig. 212. deemed to be an execution of the power, though no reference to the power is made in such instrument. The question, however, in these cases, becomes one of intent, and intention when shown will govern. SECTION VI. OF EXCESSIVE OR DEFECTIVE EXECUTION OF POWERS. 1. In what the execution of a power may be excessive. 2. Doctrine of Cy-pres. 3. Rule applicable to excessive execution of a power. 4. When a second estate is accelerated by the first being void. 5. Appointing a less estate than that in the power, good. 6. Conditions not authorized by the power, void.. 7. When an excess of execution does not affect. 9. Effect of priority of execution where there are several powers. 10. Donee cannot revoke an executed use unless he reserves the power. 1. From the strictness required by law in the mode of executing a power, a question often arises, whether a donee in undertaking to execute this power has not exceeded it, and if so, how far the execution is good within the limits of his power. This excess may be in including objects not intended to be embraced in the power, or in the quantity or amount of the subject-matter of the appointment, or in imposing conditions in the execution of the power which it does not warrant.1 2. A principle of construction applicable to wills, but not to deeds, called the doctrine of cy-pres, is to be taken in connection with the present inquiry, and is this: If the testator have a general intent, which he undertakes to carry out by his will, and in applying this to the particular object expressed in his will, so does it as to defeat his general intent, because the will cannot operate in the manner prescribed, courts will still so construe it as to carry out this general intent. As if, for instance, a testator limit an estate to the unborn son of his son J., and after the death of such unborn son, to VOL. II. 1 Tud. Lead. Cas. 306; 2 Sugd. Pow. ed. 1856, 55. 28 |