Powers Collateral

A power simply collateral, otherwise called a naked power, or a power unconnected with an interest, is a power given to a person who has no interest in the land at the time of the execution of the instrument creating the power, and to whom no estate is limited by that instrument." 74 For example, if property is given to A., as a trustee, for the use of B. for life, and after B.'s death, as C. shall appoint, C. has a power simply collateral.

Powers Appendant, or in Gross

As already stated, a power may be coupled with an interest in the land on which the power is to operate. Such powers are appendant, or in gross. Powers appendant, or appurtenant, are so called because they depend upon the estate limited to the donee; 75 that is, they depend for their validity upon the estate which is in him.76 When the estates to be created by the execution of power must take effect out of the interest in the lands held by the donee, the power is said to be appendant or appurtenant; for example, where one having a life estate is given a power to make leases which must take effect wholly or in part out of his own estate." When, however, the execution of the power will not affect the donee's estate in the lands, the power is said to be in gross, as when the owner of a life estate has a power to create estates to begin after the termination of his estate.78 A power, moreover, may be both appendant and in gross, with reference to the different estates in the land on which it is to operate; it may be appendant to one, and in gross to another.79

741 Sugden, Powers, 45; Taylor v. Eatman, 92 N. C. 601; Potter v. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721. And see Hammond v. Croxton, 162 Ind. 353, 69 N. E. 250, 70 N. E. 368; Bradt v. Hodgdon, 94 Me. 559, 48 Atl. 179.

751 Sugden, Powers, 43. And see Brown v. Renshaw, 57 Md. 67, 79; Reid v. Gordon, 35 Md. 174, 184.

76 Root V. Stuyvesant, 18 Wend. (N. Y.) 257, 283; Wilson v. Troup, 2 Cow. (N. Y.) 195, 236, 14 Am. Dec. 458; In re D'Angibau, 15 Ch. D. 228, 49 L. J. Ch. 756.

77 1 Sugden, Powers, 78; Clark v. Wilson, 53 Miss. 119; Garland v. Smith, 164 Mo. 1, 64 S. W. 188; Wilson v. Troup, 2 Cow. (N. Y.) 195, 14 Am. Dec. 458; Maundrell v. Maundrell, 10 Ves. 246.

781 Sugden, Powers, 44; Wilson v. Troup, 2 Cow. (N. Y.) 195, 14 Am. Dec. 458. See, also, Thorington v. Thorington, 82 Ala. 489, 1 South. 716.

79 Reid v. Gordon, 35 Md. 174; Garland v. Smith, 164 Mo. 1, 64 S. W. 188.

CLASSIFICATION OF POWERS OF APPOINTMENT AS TO THE APPOINTEES

272. Powers with reference to the persons or class of persons to whom the appointment is to be made are classified as:

(a) General powers; and

(b) Special powers.

SAME GENERAL POWERS

273. Under a general power, the donee can make any one he chooses an appointee.

SAME-SPECIAL POWERS

274. Under a special power, the donee can make only certain designated persons appointees. Special powers are:

(a) Exclusive, when the donee must select one out of a class, and appoint to him;

(b) Nonexclusive, when the donee can appoint to all of the class of persons designated.

General and Special Powers

A general power is one which the donee can exercise in favor of such person or persons as he pleases, including himself,80 his wife,81 or his executors and administrators.82 Such a power is equal to the ownership of the fee, because the donee can convey a fee simple.83 Under some of the statutory definitions, a general power is one which authorizes the alienation in fee, by either a conveyance or a will, or charge of the lands embraced in the power, to any alienee whatever.84 A special or particular power is one in which the appointment can be made only to the persons or classes of per

80 Irvin v. Farrer, 19 Ves. 85 (1812).

812 Washb. Real Prop. (5th Ed.) 714; New v. Potts, 55 Ga. 420. But see Shank v. Dewitt, 44 Ohio St. 237, 6 N. E. 255.

82 Mackenzie v. Mackenzie, 3 Mac. & G. 559 (1851).

83 Wright v. Wright, 41 N. J. Eq. 382, 4 Atl. 855; Com. v. Williams' Ex'rs, 13 Pa. 29; Roach v. Wadham, 6 East, 289. See Appeal of APPLETON, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925, Burdick Cas. Real Property.

84 See Laws N. Y. 1896, c. 547, §§ 114, 115; Rev. Laws Minn. 1905, §§ 3270, 3271. And see Dana v. Murray, 122 N. Y. 604, 26 N. E. 21; Hershey v. Bank, 71 Minn. 255, 265, 73 N. W. 967.

89

85

Under a

sons designated in the instrument creating the power. particular power, the appointment may be to a trustee for the benefit of the appointee; but otherwise the donee is limited, in his appointment under such a power, to the persons or class designated.S In such an instrument an authority to appoint to the children of the donor does not include the grandchildren,87 unless some special circumstances show that such must have been the intention, as, for instance, where there are no children living.88 A power to appoint "to relations" includes only those relatives who could take under the statute of distributions, but the word "issue" includes all descendants of the donor. If the power is to select one or more of certain designated persons, and to appoint the whole estate to him, the power is said to be exclusive. If, however, part of the estate may be given to each of the persons named, or the power is only to determine the amount which each shall receive, the power is nonexclusive. For example, a power to appoint "amongst the testator's children" would be a nonexclusive power, and the donee would have only a discretion as to the amount which each should receive.90 Under a nonexclusive power, where a number of persons or a class are named as donees, if no appointment is made, the court will give the estate to all the donees, in equal shares, according to the maxim that equality is equity." Until appointment,

85 Thompson v. Garwood, 3 Whart. (Pa.) 287, 31 Am. Dec. 502; Wright v. Wright, 41 N. J. Eq. 382, 4 Atl. 855. And see, as to powers under the New York statute, which establishes a new classification, Jennings v. Conboy, 73 N. Y. 230; Coleman v. Beach, 97 N. Y. 545. And compare Appeal of APPLETON, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925, Burdick Cas. Real Property.

86 Hood v. Haden, 82 Va. 588; Varrell v. Wendell, 20 N. H. 431; Stuyvesant v. Neil, 67 How. Prac. (N. Y.) 16; In re Farncombe's Trusts, 9 Ch. Div. 652.

87 Horwitz v. Norris, 49 Pa. 213; Carson v. Carson, 62 N. C. 57; Little v. Bennett, 58 N. C. 156.

88 Ingraham v. Meade, 3 Wall. Jr. 32, Fed. Cas. No. 7,045.

89 Drake v. Drake, 56 Hun, 590, 10 N. Y. Supp. 183; Glenn v. Glenn, 21 S. C. 308; Varrell v. Wendell, 20 N. H. 431.

90 Walsh v. Wallinger, 2 Russ. & M. 78; Gainsford v. Dunn, L. R. 17 Eq. 405. See for applications, Wilson v. Piggott, 2 Ves. Jr. 351; Ricketts v. Loftus, 4 Younge & C. 519; Paske v. Haselfoot, 33 Beav. 125. If only one child, the whole could be appointed to that child. Bray v. Bree, 2 Clark & F. 453. As to "illusory appointments," see infra.

91 Withers v. Yeadon, 1 Rich. Eq. (S. C.) 324; Harding v. Glyn, 1 Atk. 469; In re Phene's Trusts, L. R. 5 Eq. 346; Casterton v. Sutherland, 9 Ves. 445; Wilson v. Duguid, 24 Ch. Div. 244. See, also, Faulkner v. Wynford, 15 Law J. Ch. 8.

92

as would

the uses revert to the grantor, unless otherwise provided,' be the case when the estate is given to the donee for life, with a power of appointing the remainder.93

CLASSIFICATION OF POWERS OF APPOINTMENT AS TO DUTY OF EXECUTION

275. Powers with reference to the mandatory or discretionary duty of their execution may be classified as:

(a) Powers in trust; and

(b) Mere powers.

Powers in Trust and Mere Powers

As a rule, powers are distinguished from trusts, in that the courts will compel the execution of a trust, but will not compel the execution of a power. There are powers, however, which are in the nature of trusts; that is, where the donee of the power is a trustee for the execution of the power." Distinguished from such powers, a power whose execution is entirely discretionary with the donee is referred to as a "mere power.' Under some of the statutes, powers in trust are defined as either general or special, and a general power in trust is defined as one where any person or class of persons other than the grantee of the power is designated as entitled to the proceeds, or other benefits to result from its execution; a special power in trust being defined as (1) where the disposition or charge which it authorizes is limited to be made to a person, or class of persons, other than the grantee, or (2) where a person, or a class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorized by the power. 97

92 See Lambert v. Thwaites, L. R. 2 Eq. 151.

93 Ward v. Amory, 1 Curt. 419, Fed. Cas. No. 17,146; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23.

94 See infra.

951 Sugden, Powers, 588.

96 1 Sugden, Powers, 593.

971 Rev. St. N. Y. pt. 2, c. 1, tit. 2, p. 734, §§ 94, 95; Rev. Laws Minn. 1905, §§ 3287, 3288. And see Murray v. Miller, 178 N. Y. 316, 70 N. E. 870; Hershey v. Bank, 71 Minn. 255, 73 N. W. 967.

Powers.

201

Pa

592 For April

1941 41

EXTINGUISHMENT OF POWERS

276. Powers may be extinguished:

(a) By execution.

(b) By death of one whose consent to the execution is required. (c) By alienation in certain cases of the estate to which the power is appendant.

(d) By release, unless the power is simply collateral.

(e) By failure of the object for which created.

Extinguishment

A power is, of course, extinguished by its execution, and any further power reserved in the instrument of execution would not be the same, but a new power.98 The death of one whose consent to the execution of the power is required also destroys the power." The alienation of the estate to which the power is annexed, providing such alienation is inconsistent with the exercise of the power, destroys the power, in whole or in part, because the donee will not be permitted to execute the power in derogation of his conveyance of the estate.1 So a partial alienation of the estate might suspend or qualify the power; as, should the donee make a lease, an estate created by a subsequent execution of the power would be postponed until the termination of the lease." absolute alienation, however, may be made, without extinguishing the power, provided nothing is done in derogation of the alienee's estate,3 and, as a rule, a power in gross is not affected by an alienation of the donee's estate.*

5

An

All powers, excepting those simply collateral and powers in

98 Hele v. Bond, Prec. Ch. 474; Hatcher v. Curtis, Freem. Ch. 61.

99 Kissam v. Dierkes, 49 N. Y. 602; Powles v. Jordan, 62 Md. 499. But see Leeds v. Wakefield, 10 Gray (Mass.) 514; Sohier v. Williams, 1 Curt. 479, Fed. Cas. No. 13,159.

1 Foakes v. Jackson, 1 Ch. 807, 69 L. J. Ch. 352 (1900); Wilson v. Troup, 2 Cow. (N. Y.) 195, 14 Am. Dec. 458; Parkes v. White, 11 Ves. 209; Bringloe v. Goodson, 4 Bing. N. C. 726. So a recovery extinguishes, Smith v. Death, 5 Madd. 371; Savile v. Blacket, 1 P. Wms. 777; or a fine, Bickley v. Guest, 1 Russ. & M. 440; Walmsley v. Jowett, 23 Eng. Law & Eq. 353. And see Hole v. Escott, 2 Keen, 444.

2 Noel v. Henley, McClel. & Y. 302.

Leggett v. Doremus, 25 N. J. Eq. 122; Laws of Eng. vol. 23, p. 65, n.

41 Sugden, Powers, 85; Foakes v. Jackson, [1900] 1 Ch. 807, 69 L. J. Ch. 352; In re Hancock, [1896] 2 Ch. 173, 65 L. J. Ch. 690; Maundrell v. Maundrell, 10 Ves. 246b. But see Doe v. Britain, 2 Barn. & Ald. 93.

5 Norris v. Thomson's Ex'rs, 19 N. J. Eq. 307. See, also, Wilks v. Burns, 60 Md. 64; Learned v. Tallmadge, 26 Barb. (N. Y.) 443.