XI. Assign-
Annuity,

ment of

Covenant, and

Bond.

Power of at

[purchaser], for his own absolute use and benefit: And the said [grantee] hereby nominates and appoints the said [purchaser], his executors, administrators, and assigns, the lawful attorney and attornies of him the said [grantee] for him the said [grantee], and in his name or in the name or names of torney to sue, &c. on judg- his executors or administrators, or any of them, to sue and prosecute any action or proceeding upon the said judgment; And to give releases or discharges for the same: AND further agrees to confirm, and ratify all legal acts, matters, and things whatsoever to be done and accomplished by the said [purchaser], his executors, administrators, or assigns in or about the said judgment and premises.

ment.

IN WITNESS, &c.

A NOTICE of a few of the most important points that occur upon this extensive subject, is all that can be attempted here. For fuller information upon every branch of the subject, reference may be made to the Treatises of Lord St. Leonards (a), Mr. Chance, and Mr. Farwell. The present dissertation deals mainly with the questions respecting the execution of powers. Some questions that are passed over here will find a more appropriate place under the titles SETTLEMENT or WILL. As to leases under powers, vide infra, tit. LEASES. A discussion as to the creation and extinguishment, suspension and release of powers will be found, infra, tit. MORTGAGES.

Who may Execute Powers.]-All persons capable of disposing of real or personal property vested in them are also capable of exercising powers over such property: Sugd. Pow. 153. An appointment made by virtue of a power at common law, or by way of use, of itself vests the property in the appointee without the necessity for any other conveyance, by way of deed, attornment or otherwise: Bro. Ab. Devise,

(a) The 8th edition (1861) of this work is throughout referred to.

WHO MAY
EXECUTE

POWERS.

Powers.

Execution of pl. 12; Co. Litt. 113 a. An appointee is said to be in under the instrument creating the power, that is to say, he derives his title, strictly speaking, not through the donce, but through the grantor of the power. See Chance, Pow., Vol. II., Ch. 12, and the cases there cited.

APPOINTMENT

BY A WIFE. What power may be executed by a wife.

Power while sole.

Appointments by Married Women.]-A wife may, without her husband's concurrence, execute a naked authority, whether given before or after coverture, and though no special words are used to dispense with the disability of coverture (b): Harg. Co. Litt. 112 a. note (b); Bayley v. Warburton, 2 Com. 494; Burnet v. Mann, 1 Ves. sen. 157; Doe d. Blomfield v. Eyre, 5 C. B. 713. The rule is the same where both an interest and an authority pass to the wife, whether the authority is simply collateral to, or coupled with an interest in land.

A power may be exercised by a married woman, so as to take effect out of her own estate, without the concurrence of her husband, and whether the appointment operates by way of executory devise, by way of use under the statute, or as a nomination of the person to be admitted to a copyhold estate : Harris v. Graham, 1 Roll. Ab. 329, pl. 12; 1 Co. Litt. 112 a; Gibbons v. Moulton, Finch, 346; Tomlinson v. Dighton, 1 P. Wms. 149; Lady Travell's case, cited 3 Atk. 711; Peacock v. Monk, 2 Ves. sen. 191; 3 Vin. Abr. 427, pl. 8, 158; Burnett v. Mann, 1 Ves. sen. 156; Driver d. Berry v. Thompson, 4 Taunt. 294; Downes v. Timperon, 4 Russ. 334; Curteis v. Kenrick, 3 Mee. & W. 461; 9 Sim. 443.

If however a power be given to a woman, to be executed by her "being sole," it cannot be executed by her during coverture: Marquis of Antrim v. Duke of Buckingham, 1 Ch. Ca. 17. See also Horseman v. Abbey, 1 J. & W. 381; Morris v. Howes, 4 Ha. 599; Burnham v. Bennett, 2 Coll. 260.

() Married women having been capable of exercising these powers before the passing of 3 & 4 Will. 4, c. 74, it appears clear that in the case of such exercise, acknowledgment under that Act is unnecessary. See sect. 78 of that Act, and Sugd. Pow. 153.

As to a married woman's powers of disposition generally, see ante, p. 208 et seq.

Powers.

Power to be

Where, by a marriage settlement, a term was Execution of limited in trust on the death of the survivor of the intended husband and wife, to raise a sum of money, exercised durand pay the same to such persons as the intended ing coverture. wife, at any time or times thereafter during her coverture, and notwithstanding the same, by any deed or writing should appoint, it was held that the power could not be exercised by the wife, after the death of the husband contemplated by the settlement: Horseman v. Abbey, 1 Jac. & W. 381. See also Morris v. Howes, 4 Ha. 599; Holliday v. Overton, 14 Beav. 467. So where a power of appointment by will was given to a married woman if she should die in her husband's lifetime: Willock v. Noble, L. R., 7 H. L. 580. In Gould v. Gould, 2 Jur., N. S. 484, it was held that the limitations over in default of appointment raised an implication that the power was not to be exercised during coverture. But that decision was disapproved of by Lord St. Leonards, (see Sugd. Pow. 155), and was not followed in the case of Wood v. Wood, L. R., 10 Eq. 220.

convey lands

condition.

vested in wife

As a feme coverte may, without her husband, A wife may convey lands in execution of a mere power or in perforauthority, so may she with equal effect in perform- mance of a ance of a condition, where land is vested in her on condition to convey to others: W. Jones, 137, 138. Yet if a legal estate of freehold be vested in a Conveyance married woman, in trust for another, the better of estate opinion, sanctioned by uniform practice, is, that no as trustee. effectual conveyance can be made, unless she and her husband join in an acknowledged conveyance of the estate: 1 Pres. Abs. 337; Lewin's Trusts, p. 33 (c). A reason for this distinction may be drawn from the consideration, that if a married woman. were allowed to convey a trust estate, without her husband's concurrence, she might convey it before the several objects of the trusts were satisfied, for which he might jointly with her be responsible to the cestui que trust: a reason which does not apply to the mere execution of a power, or performance of a condition: 1 Fonb. Eq. 92, n., 5th edit.

(c) As to the effect of the Married Women's Property Act, 1882, vide ante, pp. 230, 232.

Powers.

Execution of A married woman may exercise a power over personalty, whether in possession or reversion, and in the case of appointments by married women of their reversionary interests, such powers are not interfered with by Malins' Act (20 & 21 Vict. c. 57). See sect. 3 of this statute set out sub. tit. ACKNOWLEDGMENTS, ante, p. 250.

Appointment by infant.

EXECUTION

OF POWERS. Mode of framing appointments.

Infant.]-An infant may execute a power either at common law or by way of use, if it is not coupled with an interest: Grange v. Tiving, Orl. Bridg. 107; Hearle v. Greenbank, 3 Atk. at p. 710; Colton v. Hoskins, 16 Vin. Abr. 486, pl. 3, n.; Sugd. Pow. 177; Simpson on Infants, p. 40. In Re Angibau, Andrews v. Andrews (C. A.), 15 Ch. D. 228, a married infant had a life estate in personal property followed in default of issue by a general power of appointment, and in default of appointment the property was given to herself absolutely. James and Brett, LL.J., held (affirming Jessel, M. R.), that the power was a pure mandate, and did not deal with any property or interest of the infant, and could, therefore, be exercised during infancy. But in the case of realty it would be otherwise: Ibid. pp. 244, 246.

By 1 Vict. c. 26, an infant has no longer any power to dispose of property by will, but this statute does not invalidate the exercise by an infant of a power by deed: Ibid. at p. 244. And it seems that a power given by express words or necessary implication, to be exercised during infancy, will be good, notwithstanding it is coupled with an interest in the infant. See 1 Prest. Abst. 326; Orl. Bridg. 107; 3 Atk. 714; Re Cardross's Settlement, 7 Ch. D. 728. Per Jessel, M. R. As to leases of the lands of infants, see infra, tit. LEASES.

Execution of Powers.]-In every well-drawn deed of appointment, these three points should be embraced:-1st, the deed executing the power should be expressed to be in exercise of it; 2ndly, of every other authority enabling the donee in that behalf; and 3rdly, it should be shown in the body of the deed, that the formalities required to the exe