ers in gross, and of their nature, would be found in cases like the following; namely, where a tenant for life had a power to appoint the estate to his children after his decease, or had a power to jointure his wife out of the estate after his death. So, too, where the owner of a fee reserves to himself a power over the uses of the land, at the same time that he conveys away all his estate in it, it being sufficient, as it seems, to give a power this character, that the one exercising it either has an interest in the land out of which the use arises, or in the use raised by such power, provided the estate created by the power in no way interferes with or takes from such interest.1

13. It may be remarked in this connection, to be resumed more at length, that, if the one having the power has also an interest in the land which is not to be affected by

*

the exercise of such power, this will not be destroyed [*307] by any conveyance of the land, except by a feofment.

But the power over a use which a party reserves upon his grant of an estate he may extinguish by a release. And the same, it seems, is true of a power given to a stranger to be exercised for his own benefit; 2 whereas, if the power be simply a collateral one," which means that it is extrinsic and totally unconnected with any interest in the land," the donee of such a power cannot, by any act whatever, extinguish or release it.3

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.*

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

1 Burt. Real Prop. §§ 180-182; Tud. Lead. Cas. 294.

2 Burt. Real Prop. §§ 180-182; Edwards v. Slater, Hardr. 416; Tud. Lead. Cas. 294; Wms. Real Prop. 256.

3 Burt. Real Prop. § 183. Mr. Chance does not seem to approve of this attempt to classify powers into "collateral " and "in gross," and insists that the terms are convertible. Chance, Pow. § 34.

4 Co. Lit. 271 b, Butler's note, 231, § 8, pl. 4; Wms. Real Prop. 255.

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. 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 revocation be [*308] inserted in an instrument of * appointment, the exer

cise of it can only restore the uses of the original settlement." 3 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.1

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.

6, 7. Of the partial suspension of a power.

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

1 Sand. Uses, 154; Co. Lit. 271 b, Butler's note, 231, § 8, pl. 4; Tud. Lead. Cas. 264; 4 Kent, Com. 415.

2 Bird v. Christopher, Styles, 389.

3 Burt. Real Prop. § 185; 4 Cruise, Dig. 220; Wright v. Tallmadge, 15 N. Y.

44 Cruise, Dig. 219.

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. 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 [*309] own grant by doing an act to deprive the person

to whom he has made such release of the estate acquired thereby,

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 requires him to exercise a power at any future time, he cannot extinguish it by a release.5

3. In accordance with the foregoing doctrine, that a power

1 Digges' case, F. Moore, 605; Tippet v. 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, 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. Slater, 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.

4 Cunynghame v. Thurlow, 1 Russ. & M. 436, n. 5 Wms. Real Prop. 256; Chance, Pow. § 3121.

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.1 And where an estate was settled to the use of H for life, remainder to the children of H, with a power in trustees to sell the estate during the life of H, at his request, H having conveyed his estate, requested the trustees to convey to his grantee, who did so; and it was held to be a good execution of the power, as H, by his deed, did nothing in derogation of the estate of such grantee to be derived from the trustees.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. Accord

ingly, where a tenant under a limitation like that [*310] above stated became * bankrupt, it was held that

the transfer in bankruptcy divested him of his entire estate, and the power of appointing the remainder was extinguished.4

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 ninety-nine 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

1 Tud. Lead. Cas. 294; Burt. Real Prop. § 176; Chance, Pow. § 3172. 2 Alexander v. Mills, L. R. 6 Ch. 124.

3 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.

been made for a good consideration. The power was thereby suspended.1

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 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 ninety-nine 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 tenant for [*311] life, and not out of his 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 of executor and tenant for life by themselves, in their relation to each other, they were to be considered as if made by and contained in the will which created the powers. And therefore, as between

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

2 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.