8

trust, may be released by the donee, and thus extinguished;' that is, they may be released to one having a freehold in possession, reversion, or remainder, and so destroyed. The rule _that__ a power simply collateral cannot be destroyed by the donee is changed by statute, however, in England, and in that country, since January 1, 1882, a person to whom any power is given, whether coupled with an interest or not, may release it by deed, or contract not to exercise it.10 Where the execution of a power becomes impossible," or when the object for which it was created has failed, the power ceases and is destroyed.12 As a rule, the doctrine of merger does not apply to powers, since a donee may have both an estate and a power.18 Thus the fee may be in the donee, with a general power of appointment. In such a case, the fee will be divested by the execution of the power. It has been held, however, that a power given to the owner of a particular estate, whether appendant or in gross, is extinguished by his acquisition of the fee.15 Equity, however, will interfere, in proper cases, in order to give effect to the intention of the parties.16

6 Atkinson v. Dowling, 33 S. C. 414, 12 S. E. 93; Lewis v. Howe, 174 N. Y. 340, 66 N. E. 975, 1101; In re Eyre, 49 L. T. Rep. N. S. 259.

7 Hill v. Hill, 81 Ga. 516, 8 S. E. 879; Dooper v. Noelke, 5 Daly (N. Y.) 413; 13 Atl. 943.

Norris v. Thomson, 19 N. J. Eq. 307; Neilson's Appeal, 10 Sadler (Pa.) 558,

8 De Wolf v. Gardiner, 9 R. I. 145; Grosvenor v. Bowen, 15 R. I. 549, 10 Atl. 589; Albany's Case, 1 Coke, 110b.

Conveyancing Act of 1881.

10 Laws of Eng. vol. 23, p. 64. 11 Hetzel v. Barber, 69 N. Y. 1; Sharpsteen v. Tillou, 3 Cow. (N. Y.) 651. 12 Hetzel v. Barber, 69 N. Y. 1; Sharpsteen v. Tillou, 3 Cow. (N. Y.) 651; Smith's Lessee v. Folwell, 1 Bin. (Pa.) 546; Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305. But see Ely v. Dix, 118 Ill. 477, 9 N. E. 62 (a partial failure). 13 Benesch v. Clark, 49 Md. 497; Henderson v. Vaulx, 10 Yerg. (Tenn.) 30; Sing v. Leslie, 2 Hem. & M. 68, 33 L. J. Ch. 549.

14 Maundrell v. Maundrell, 10 Ves. Jr. 265, 32 Eng. Reprint, 839; Richardson v. Harrison, 16 Q. B. D. 85, 54 L. T. Rep. N. S. 456.

15 Cross v. Hudson, 3 Bro. C. C. 31 (1789).

16 Laws of Eng. vol. 23, p. 66, r.

RIGHTS OF CREDITORS

277. As a rule creditors of the donee of a power have no rights in the subject-matter of the power.

EXCEPTION-When, however, the power is general, creditors

may enforce their claims against a voluntary appointee. Creditors of the appointee may enforce their claims against his estate after appointment to him, but cannot compel the execution of the power.

EXCEPTION-In some states, however, by statute, creditors may compel the execution of a beneficial power.

Under a special power in which the donee has no beneficial interest, his creditors have no rights in the subject-matter of the power.17 Likewise, before the execution of a general power, equity will not hold the subject-matter of the power as assets of the donee for the benefit of his creditors, against the donor or such persons to whom the property is limited in default of nonexecution.18 By statute, however, in some states, when an absolute power of disposition of the property is given to one who has in it a particular estate for years or for life, the donee has the fee, which becomes subject to the claims of his creditors, providing the power is not executed.1o When a general power, either by deed or will, is executed in favor of a mere volunteer, that is, not a bona fide purchaser of value, equity will permit the creditors of the donee to seize the property in the hands of such voluntary appointee.20 This rule does not apply, however, against a bona fide purchaser.21 Creditors of the appointee under a power may levy on the lands after the power is executed, but they cannot compel an execution, even in cases of special powers.22 But in several states, including New York, Michigan, Wisconsin, and

17 Johnson v. Cushing, 15 N. H. 298, 41 Am. Dec. 694.

18 Patterson v. Lawrence, 83 Ga. 703, 10 S. E. 355, 7 L. R. A. 143; Gilman v. Bell, 99 Ill. 144; Crawford v. Langmaid, 171 Mass. 309, 50 N. E. 606; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908.

19 Code Ala. 1907, § 3423; Laws N. Y. 1896, c. 547, § 129; St. 1898, Wis. § 2108.

20 Johnson v. Cushing, 15 N. H. 298, 41 Am. Dec. 694; Tallmadge v. Sill, 21 Barb. (N. Y.) 34; Clapp v. Ingraham, 126 Mass. 200; Knowles v. Dodge, 1 Mackey (D. C.) 66; Wales' Adm'r v. Bowdish's Ex'r, 61 Vt. 23, 17 Atl. 1000, 4 L. R. A. 819; Lassells v. Cornwallis, 2 Vern. 465; Holmes v. Coghill, 12 Ves. 206.

21 Patterson v. Lawrence, 83 Ga. 703, 10 S. E. 355, 7 L. R. A. 143; Hart v. Middlehurst, 3 Atk. 371, 26 Eng. Reprint, 1014.

222 Sugd. Powers, 102.

Minnesota, it is provided by statute that the execution of a beneficial power-that is, a special power under which the debtor could compel an appointment in his favor-may be compelled by the creditors of the one entitled to the appointment.23

EXECUTION OF POWERS

278. The execution of powers is subject to the following general rules:

(a) It must be executed by the donee or donees named.

(b) It must be executed within a reasonable time.

(c) It must be executed in strict accordance with its terms.
(d) The defective execution of a power may be corrected in
equity.

(e) The execution of a power in trust may be compelled in

equity.

(f) When the execution of a power is excessive, the excess will be void.

By Whom Executed

24

25

As a rule a power can be executed only by the person or persons named as the donee or donees in the instrument creating the power, and where discretionary power is given to one in whom special confidence is reposed, he cannot delegate it to another," and his refusal to act will render the power nugatory and void.20 In general, no one can execute a power unless he has capacity to transfer real estate. An infant, however, may execute a power simply collateral or in gross.27 He cannot, however, execute a power appendant.28 A married woman, also, may execute, without the consent of her husband, any power given to her, whether she became the donee of the power before or after her marriage." Before the married woman's property acts, this was the usual

23 1 Stim. Am. St. Law, § 1657.

29

24 Koch v. Robinson, 83 S. W. 111, 26 Ky. L. Rep. 969; Pratt v. Rice, 7 Cush. (Mass.) 209.

25 Hill v. Peoples, 80 Ark. 15, 95 S. W. 990; Shelton v. Horner, 5 Metc. (Mass.) 462; Coleman v. Beach, 97 N. Y. 545; Bohlen's Estate, 75 Pa. 304. 26 Hinson v. Williamson, 74 Ala. 180.

27 Sheldon's Lessee v. Newton, 3 Ohio St. 494, 507; Hill v. Clark, 4 Lea (Tenn.) 405; In re D'Angibau, 15 Ch. D. 228, 43 L. T. Rep. N. S. 135.

28 Hill v. Clark, 4 Lea (Tenn.) 405; Thompson v. Lyon, 20 Mo. 155, 61 Am. Dec. 599. But cf. In re Cardross' Settlement, 7 Ch. Div. 728.

29 Breit v. Yeaton, 101 Ill. 242; Osgood v. Bliss, 141 Mass. 474, 6 N. E. 527, 55 Am. Rep. 488; Lippincott v. Wickoff, 54 N. J. Eq. 107, 33 Atl. 305; Coryell v. Dunton, 7 Pa. 530, 49 Am. Dec. 489.

Read

affectors yppol, Case booth

31

mode of conferring upon a married woman a right to deal with her separate estate.30 Under a will creating powers, if no donees are named, the executors may execute the power.3 If two or more donees are named in the instrument creating the power, all must join in the execution, unless otherwise provided.

34

Such pow

ers survive, however, after the death of one of the donees, and may be executed by the survivor, unless the power is given to the several donees by name, showing that personal trust and confidence is imposed in them, and even in these cases the power may be exercised by the survivors, if coupled with an interest.35 Where a power is not a personal one, but is merely given to a class, as for example, "my executors," any person holding the office may execute it.36 If, however, a power is given to executors specially named, they may appoint under the power, though they have resigned as executors.37 Where no personal trust or confidence is imposed on the donee of a power, it may be executed by attorney; otherwise, the donee must use his own discretion in making the appointment.39 The mere execution, however, of an instrument may in all cases be by attorney. A general power may be transferred, and when a power is given to a person and his assigns, it may be executed by his assigns in fact or in law.*1

38

40

80 Claflin v. Van Wagoner, 32 Mo. 252; Rush v. Lewis, 21 Pa. 72; Ladd v. Ladd, 8 How. (U. S.) 10, 12 L. Ed. 967.

31 Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Silverthorn v. McKinster, 12 Pa. 67. Cf. Doyley v. Attorney General, 4 Vin. Abr. 485, pl. 16, where a power was executed by the court.

32 Shelton v. Homer, 5 Metc. (Mass.) 462; Wilder v. Ranney, 95 N. Y. 7; Hertell v. Van Buren, 3 Edw. Ch. (N. Y.) 20. Where executors are donees, less than all may execute if one or more refuse to act. Bonifaut v. Greenfield, Cro. Eliz. 80; Zebach's Lessee v. Smith, 3 Bin. (Pa.) 69, 5 Am. Dec. 352.

33 Philadelphia Trust, Safe Deposit & Ins. Co. v. Lippincott, 106 Pa. 295; Franklin v. Osgood, 14 Johns. (N. Y.) 527; Lee v. Vincent, Cro. Eliz. 26; Houell v. Barnes, Cro. Car. 382; Lane v. Debenham, 11 Hare, 188.

34 Peter v. Beverly, 10 Pet. (U. S.) 532, 563, 9 L. Ed. 522; Franklin v. Osgood, 14 Johns. (N. Y.) 527; Tainter v. Clark, 13 Metc. (Mass.) 220; Anon., 2 Dyer, 177a, pl. 32.

35 Franklin v. Osgood, 14 Johns. (N. Y.) 527; Gutman v. Buckler, 69 Md. 7, 13 Atl. 635; Parrott v. Edmondson, 64 Ga. 332.

36 Druid Park Heights Co. of Baltimore City v. Oettinger, 53 Md. 46; Drummond v. Jones, 44 N. J. Eq. 53, 13 Atl. 611; Evans v. Chew, 71 Pa. 47.

37 Clark v. Tainter, 7 Cush. (Mass.) 567; Tainter v. Clark, 13 Metc. (Mass.) 222.

38 Howard v. Thornton, 50 Mo. 291; Bales v. Perry, 51 Mo. 449.

39 Graham v. King, 50 Mo. 22, 11 Am. Rep. 401; Hood v. Haden, 82 Va. 588. 40 Singleton v. Scott, 11 Iowa, 589; Bales v. Perry, 51 Mo. 449.

41 Pardee v. Lindley, 31 Ill. 174, 83 Am. Dec. 219; Strother v. Law, 54 Ill. 413; Druid Park Heights Co. of Baltimore City v. Oettinger, 53 Md. 46; Collins v. Hopkins, 7 Iowa, 463.

Time of Execution

45

42

It is a general rule that, when no time is specified, a donee is entitled to a reasonable time for the execution of a power, the circumstances of each case determining what is a reasonable time.*3 Moreover, even when the time is specified, it is the general rule that such an instruction is merely directory." When, however, by reason of the object for which a power is created, or by express direction in the instrument creating the power, it must be exercised within a certain time, any execution after that time will be void. Yet even to this broad rule there are many exceptions. The courts look for the main purpose of the donor, and when they conclude that the sale or other appointment directed by him was his main purpose, and that the time was inserted only as a matter of choice or preference, they will sustain an execution of the power at some other time than the one directed.* 46 In case a power is given to be executed upon some contingency, it may be executed before the event happens, although it will not take effect until the subsequent happening of the event.47

Mode of Execution

As a rule, a power must be strictly executed according to its terms.48 At common law no particular mode of execution of a

42 Davis v. Hoover, 112 Ind. 423, 14 N. E. 468; In re Weston's Estate, 91 N. Y. 502; Huston's Appeal, 9 Watts (Pa.) 472. At any time which falls within the general purpose. Moores v. Moores, 41 N. J. Law, 440; Cotton v. Burkelman, 142 N. Y. 160, 36 N. E. 890, 40 Am. St. Rep. 584.

43 Any time during the donee's life may be good. 1 Sugd. Powers, 346; Richardson v. Sharpe, 29 Barb. (N. Y.) 222; Bakewell v. Ogden, 2 Bush (Ky.) 265; Coleman v. Seymour, 1 Ves. 209, 27 Eng. Reprint, 987.

44 Kidwell v. Brummagim, 32 Cal. 436; Hale v. Hale, 137 Mass. 168; Marsh v. Love, 42 N. J. Eq. 112, 6 Atl. 889; Mott v. Ackerman, 92 N. Y. 539; Fahnestock v. Fahnestock, 152 Pa. 56, 25 Atl. 313, 34 Am. St. Rep. 623.

45 Wilkinson v. Buist, 124 Pa. 253, 16 Atl. 856, 10 Am. St. Rep. 580; Fidler v. Lash, 125 Pa. 87, 17 Atl. 240; Harvey v. Brisbin, 50 Hun, 376, 3 N. Y. Supp. 676; Harmon v. Smith, 38 Fed. 482. So the power must not be exercised before the time directed. Booraem v. Wells, 19 N. J. Eq. 87; Henry v. Simpson, 19 Grant (N. C.) 522; Jackson v. Ligon, 3 Leigh (Va.) 161.

46 Snell's Ex'rs v. Snell, 38 N. J. Eq. 119; Shalter's Appeal, 43 Pa. 83, 82 Am. Dec. 552; Hale v. Hale, 137 Mass. 168; Hallum v. Silliman, 78 Tex. 347, 14 S. W. 797.

47 Machir v. Funk, 90 Va. 284, 18 S. E. 197; Sutherland v. Northmore, 1 Dick. 56, 21 Eng. Reprint, 188.

RULE AGAINST PERPETUITIES.-That the rule of perpetuities applies to powers has already been considered. See Ch. XVI, ante. And see Appeal of APPLETON, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925, Burdick Cas. Real Property.

48 O'Brien v. Flint, 74 Conn. 502, 51 Atl. 547; Breit v. Yeaton, 101 Ill. 242; Haslen v. Kean's Heirs, 4 N. C. 700, 7 Am. Dec. 718.