dispensing with the necessity of livery of seisin. And although in several of the States (e.g., New York, Michigan, and Wisconsin) uses have been abolished, which of itself would greatly limit the creation of estates in futuro, yet wherever this has been done it is believed that freehold estates can, by statute, be created in futuro so that the abolition of uses occasions no practical inconvenience.

68. The only possible exception to this is Ohio. The Statute of Uses is not in force in that State, and it has never been expressly enacted that freeholds can be created in futuro. But land passes there by deed without livery of seisin, and the courts of Ohio will not improbably hold, as have those of Maine and Vermont, that when livery of seisin is no longer necessary the objection to the creation of a freehold in futuro falls with it.

N. Y. REAL PROP. LAW, § 40. Subject to the provisions of this article, a freehold estate as well as a chattel real may be created to commence at a future day; an estate for life may be created in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years; and a fee or other less estate may be limited on a fee, on a contingency which, if it should occur, must happen within the period prescribed in this article.

§ 43. A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate; and every such remainder shall be a conditional limitation.

CHAPTER IV.

POWERS.

Co. LIT., 237, a. Lastly, somewhat were necessarie to be spoken concerning clauses of provisoes, containing power of revocation, which since Littleton wrote are crept into voluntarie conveyances, which passe by raising of uses, being executed by the statute of 27 H. 8 and are become verie frequent, and the inheritance of many depend thereupon. As if a man seised of lands in fee, and having issue divers sonnes, by deed indented, covenanteth in consideration of fatherly love, and for the advancement of the blood, or upon any other good consideration, to stand seised of three acres of land to the use of himselfe for life, and after to the use of Thomas his eldest son in taile; and for default of such issue, to the use of his second son in taile, with divers like remainders over; with a proviso that it shall be lawful for the covenantor at any time during his life to revoke any of the said uses, &c.: this proviso being coupled with an use, is allowed to be good, and not repugnant to the former states. But in case of a feoffment, or other conveyance, whereby the foeffee or grantee, &c., is in by the common law, such a proviso were merely repugnant and void.

By the same conveyance that the old uses be revoked, may new be created or limited, where the former cease ipso facto by the revocation, without either entrie or claime.

SUGD. POW., II. Powers before the Statute of Uses were, as we have seen, mere directions to the trustee of the legal estate how to convey the estate; in truth they were future uses to be designated by the person to whom the power was given these, when they arose, equity compelled the trustee

to observe; and when conveyances under the Statute of Uses became established, it was still usual to reserve or limit such powers, as the exigencies of the case required: thus, powers to lease, to sell, or exchange, to jointure, to charge with portions for younger children, or to revoke the settlement itself, soon became usual.

DIGBY, HIST. REAL PROP., Ch. VII., § 2. One of the commonest modes of calling into operation the Statute of Uses is by the creation of what are called powers of appointment, that is, conferring on a person a power of disposing of an interest in lands quite irrespective of the fact whether or not he has any interest in the land himself. The creator or donor of the power in disposing of the lands makes a conveyance operative at common law, and at the same time declares that such and such uses are to arise on the execution of a proper instrument by a designated person. This is called technically giving to a person a power of appointment, and the instrument when executed operates as an appointment. The estate which passes under the power of appointment comes not from the donee of the power, but from the original settlor; the only difference between an interest thus created and an immediate conveyance being, that instead of the uses being declared by the original settlor at the time of the conveyance of the legal estate, it is left to a third person to declare them.

Thus it was common in ordinary purchase deeds of land, where the purchaser was married before Jan. 1, 1834,' to introduce provisions of this kind in order to bar effectually any claim to dower on the part of his widow. No estate of inheritance in possession was given to the purchaser at all, but he was invested with a power of disposing of the lands for any estate. This was effected by conveying the lands to A. and his heirs to such uses, etc., as B. (the purchaser) should appoint, and in default of and until appointment to

1 When the Dower Act (3 & 4 Will. IV., c. 105) came into operation, by which a simpler method of barring dower was introduced.

the use of B. for life, remainder to the use of A. and his heirs during the life of B., remainder to the use of B. and his heirs. Under these limitations B. never had more than an estate for life in possession, and therefore his widow's dower could not attach. At the same time, by exercising the power of appointment he could in effect convey an estate in fee simple to any other person.

HARDRES, 415. Powers to raise estates are either simply collateral (as where a party that has such power has not, nor ever had any estate in the land: as where such power is reserved to a stranger, and there it cannot be destroyed by such stranger, because it is no more than a bare nomination) or not simply collateral: and these latter are of two sorts: first, appendant and annexed to the estate; secondly, in gross. A power of the first sort is, where tenant for life has a power to make leases for one and twenty years or three lives such a power is not simply collateral. For if such a tenant charge the land with a rent, and then execute his power, the charge shall not be defeated whilst he lives. Latche's Rep. So if he had before covenanted to stand seised to the use of another; because the power in that case is annexed to the estate. But where the power does not fall within the estate, as here the tenant for life has a power to make an estate, which is not to begin till after his own estate determined, such power is not appendant or annexed to the land, but is a power in gross; because the estate for life has no concern in it. And yet such a power may by apt words be destroyed by release, or by a fine or feoffment, which carry away and include all things relating to the land. But an assignment of totum statum suum, or other alteration of the estate for life, does not affect such a power, because it is a power in gross.-Per Hale, C. B., in Edwards v. Sleater (1666).

Co. LIT., 271, b. By a general power of appointment is understood that kind of power which enables the party to

appoint the estate to any persons he thinks proper; and, in this sense, it is opposed to a qualified or particular power, which enables the party to appoint to or among particular objects only; as a power of appointing to his children, or the children of any other person. A general power of appointment has no tendency to a perpetuity, as, from its very nature, it enables the party to vest the whole fee in himself, or in any other person, and to liberate the estate entirely from every species of limitation inconsistent with that fee. In fact therefore giving a person such a power is nearly the same as giving him the absolute fee. The only difference. is, that it enables him to do, through the medium of a seisin previously created, that which, if the fee had been actually limited to him, he might do by a conveyance of the land itself; so that in both cases his power of alienation is of the same extent. But, in the case of a particular or qualified power, where the objects are limited, the case is entirely different. The limitation of the objects takes the land out of commerce, and of course has a tendency to that perpetuity which the English law of real property does not admit. The consequence therefore is, and by a series of cases it now appears to be settled, that where the power is general, estates for life, with remainders over, may be limited under them to persons not in esse at the time of the execution of the original deed, in the same manner, and to the same extent, as if, instead of being derived out of the seisin of the feoffees of the original deed, and in that point of view as making a part of that deed, the uses and estates so limited were created by an original, substantive, independent, and integral conveyance. On the other hand, in the case of a particular or qualified power, that is, where the objects are qualified, as a power of appointing to the children of the party himself, though perhaps it may enable him to appoint life estates to children unborn at the date of the deed creating the power; yet, if it enables him to appoint life estates to those children, it certainly does not authorize him to extend the appointment to the children of these children, so as to