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. The two leases, one for twenty-one and the other for one thousand years, are to be regarded as if made by the will itself, the latter being as to the former in the light of a reversion, and as such giving the latter lessee the common-law right to the rent of the prior lease. The tenant for life, inoreover, so far as he had a right to make the lease of ninety-nine years, held this subject to these powers to lease and mortgage created by the will, and his lease for ninety-nine years was accordingly subordinate to them. 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.1 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.2 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 would be a [*312] good one, and would take effect upon and in event * 1 Bringloe v. Goodson, 4 Bing. N. C. 726. 24 Cruise, Dig. 221. of the son's dying in her lifetime without issue.1 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.2 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 remainders 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.3 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.4 1 Dalby v. Pullen, 2 Bing. 144; Tud. Lead. Cas. 546; Chance, Pow. § 402. 2 Co. Lit. 271 b, Butler's note, 231, § 3, pl. 4. 8 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; Gorin v. Gordon, 38 Miss. 214. Burt. Real Prop. § 797; Southcote v. Stowell, 1 Mod. 237; Purefoy. Rogers, 2 Saund. 888. SECTION III. POWERS APPLIED BOTH IN AMERICAN AND ENGLISH LAW. 1,2. Provisions as to powers in the law of New York. 8. 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 infre[*313] quent in this country, they have been rarely applied, though fully 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. Powers under marriage settlements are favorably construed and applied in the equity courts of Mississippi.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. But if C were to make an appointment in favor of any one, the power vested by deed in the trustee would become opera 1 New York Rev. Stat. art. 2, § 68; Stat. at Large, vol. 1, p. 678, § 56; Lalor, Real Est. 180. 2 Gorin v. Gordon, 38 Miss. 210 tive 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. 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. There is little if any difference in the construction of deeds [*314] 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. So 1 Hotchkiss v. Elting, 36 Barb. 38. 2 Right v. Thomas, 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. 4 Langham v. Nenny, 3 Ves. 467. 5 Chance, Pow. §§ 1207, 1208; Liefe v. Saltingstone, 1 Mod. 190. 6 Dighton v. Tomlinson, Com. 194, s. c. 1 P. Wms. 171. that, in the cases above supposed, the one executing the power of creating an estate should define, by proper terms of limitation, whether it was a fee or a less estate, and what estate it was intended to be. In wills, technical expressions are never necessary.1 5. But if the power is to appoint to such "persons" as the donee may choose, it authorizes only a life-estate.2 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. They may 1. POWERS may be created by deed or by will. 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.3 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, [*315] if a power is contained in a * deed limiting an estate to A to such uses as he should appoint, 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 ap 1 Co. Lit. 271 b, Butler's note, 231. 22 Flint, Real Prop. 549. 8 Watk. Conv. 258, and Coventry's note; Burt. Real Prop. §§ 123, 172; 4 Kent, Com. 819. 41 Sugd. Pow. ed. 1856, 158. |