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1. Butler's note 231. to lib. 3. Co. Litt.
2. 6 Co. 17. b. Sugden on Powers, 82.
3. The N.Y. Revised Statutes have substituted the words grantor. and grantee, for the donor and donee of a power in the English law.
4. It has been the opinion of eminent lawyers, that a power in a tenant for life to charge or appoint portions for his children, was merely a power of selection or nomination, and not a power in gross, and so not to be extinguished by a fine or feoffment. But Sir Edward Sugden has clearly shown, that this idea was founded in error. Sugdenon Powers, p. 72. 74. 79.
5. Hale, Ch. B., Hardress, 415. Sugden on Powers. 46-49.,2d London ed.
6. See his long note to Fearne on Executury Devises, p. 347-388. which is a clear and able view of the doctrine of powers of revocation and appointment.
7. Observations on Real Property, p. 83.
8. N.Y. Revised Statutes, vol. i. 732.
9. The N.Y. Revised Statutes have abolished powers at common law, as well as powers under the statute of uses, so far as they related to land, except it be a simple power of attorney to convey lands for the benefit of the owner. The article commences with this broad proposition, powers are abolished.
10. Ibid. 732. sec. 74, 75, 76, 77, 78. There is the same definition of a general, and of a special power, in Sugden, p. 425. and in Rutler's note 231, to Co. Litt. 271. b.
11. N.Y. Revised Statutes, vol. i. 732. sec. 79.
12. Ibid. 734. sec. 94, 95.
13. Lord Mansfield, Doug. Rep. 293. Lord Ellenborough, 3 East's Rep. 441. Jackson v. Veeder, 11 Johns. Rep. 169.
14. Sugden on Powers, 96.
15. Dalison's Rep. 58. 1 Jones, 137. Co. Litt. 9. b.
16. 3 Leon. 7l. 4 Leon. 41. S. C. Liefe v. Saltingstone, 1 Mod. Rep. 189. Doe v. Thonby, 10 East's Rep. 438. Tomlinson v. Dighton, 1 Salk. Rep. 239. Crossling v. Crossling, 2 Cox, 396. Reid v. Shergold, 10 Vesey's Rep. 270. Jackson v. Robins, 16 Johns. Rep. 588. In the case of Flintham, 11 Serg. & Rawle, 16.
17. Sugden on Powers, 96-101.
18. Vol. i. 732. sec. 81, 82. 84.
19. Ibid. 732. sec. 85.
20. Year Book, 9 Hen. VI. 13. b. 24. b.
21. Litt. sec. 169. Co. Litt. 113. a. 181. b. Honell v. Barnes, Cro. C. 382. Yates v. Compton, 2 P. Wms. 308. Bergen v. Bennett, 1 Caines' Cases in Error, 16. Jackson v. Schauber, 7 Coven's Rep. 187.
22. This is the opinion of Sir Edward Sugden, and I think it is, upon the whole, the better opinion; but Mr. Hargrave thought differently, and he refers to Lord Coke in support of the position, that if one devises land to be sold by his executors, an interest passes. (Sugden on Powers, 104-108. Harg. Co. Litt. 113. a. note 146.) The distinctions on this subject have the appearance of too curious and overstrained a refinement, and Mr. Hargrave pushed his opinion to the extent of holding, that a devise that executors should sell, and a devise of lands to be sold by executors, equally invested them with a fee. a N. 1'. Revised Statutes, vol. i. 129. sec. 56.
23. N.Y. Revised Statutes, vol. i. 729. sec. 56.
24. Keene v. Deardon, 8 East's Rep. 248
25. .N.Y. Revised Statutes, vol. i. 729. sec. 59.
26. Ibid. sec. 55
27. Ibid. sec. 60.
28. Goodtitle v. Pettoe, Fitzg. 299.
29. Gilbert on Uses, by Sugden, 90, 91. Sugden on Powers, 191.
30. Sugden on Powers, 129-133. Mr. Butler was of opinion, that uses created by will were executed by the statute of wills, and not by the statute of uses. The question was, whether a devise to A. in fee, to the use of B. in fee, took effect by virtue of the statute of uses, or the statute of wills. The opinion of that great conveyancer, Mr. Booth, whose opinions are often cited as quite oracular, was vibratory on the question. Butler's note 231. to lib. 3. Co. Litt. 3. 5. Sugden on Powers, 130. note.
31. Gilbert on Uses, 127. Sugden on Powers, 135
32. Duke of Marlborough v. Earl Godolphin, 1 Eden, 404.
33. Sugden on Powers, 141.
34. 4 Term Rep. 39.
35. 1 Vesey's Rep. 174.
36. Sugden on Powers, 144.
37. Sugden, ub. sup. 148-155. I have deemed it sufficient on this particular subject, to refer to Sir Edward Sugden's very authoritative work, for principles that are clearly settled, without overloading the pages with references to the adjudged cases. Mr. Sugden cites upwards of fifty cases to the point of the general competency of a feme. covert, and the limited capacity of an infant, to execute a power. He says he has anxiously consulted the report of every case referred to in his volume. I have examined all his leading authorities, and have found them as he stated them. The work is admirably digested, and distinguished for perspicuity, accuracy, and plain good sense.
38. Vol. i. 735. sec. 109, 110, 111. Ibid. p. 737. sec. 130.
39. Co. Litt. 112. b. 113. a. 181. b. Sheppard's Touch. tit. Testament p. 448. pl. 9. Bro. tit. Devise, pl. 31. Dyer, 177. Osgood v. Franklin, 2 Johns. Ch. Rep. 19.
40. N.Y. Revised Statutes, vol. i. 735. sec. 106. 112.
41. If this be the construction of the revised statutes, then I am free to say, that the provision in the statute of Hen. VIII. has been very injudiciously discontinued.
42. Sugden on Powers, 159.
43. Blatch v. Wilder, 1 Atk. Rep. 420. Davoue v. Fanning, 2 Johns. Ch. Rep. 254. See also, 1 Yeates' Rep. 422. 3 Ibid. 163. Mr. Sugden (Powers, p. 160-165.) mentions several ancient cases to the same effect. In South Carolina the executor's authority to sell, under such circumstances, is denied, and the course is, to apply to chancery to give validity to the sale. Drayton v. Drayton, 2 Dessaussure's Rep. 250. note. The N.Y. Revised Statutes, vol. i. 734. sec. 101. would seem to have changed the law on this subject, and to have made it conformable to the South Carolina practice, for it is declared, that where a power is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the Court of Chancery. This is unnecessarily requiring a resort to chancery in every case where the executor, or other donee of the power, is not expressly named.
44. Combes' case, 9 Co. 75. b. Ingram v. Ingram, 2 Atk. Rep. 88. Cole v. Wade, 16 Vesey's Rep.27.
45. How v. Whitfield, 1 Vent. 338, 339. The N.Y. Revised Statutes, vol. i. 735. sec. 104. declare, that every beneficial power shall pass to the assignees of the estate, and effects of the donee of the power, under an assignment in insolvent cases.
46. Combes' case, 9 Co. 75. b.
47. Sugden on Powers, p. 170. 181, 182.
48. Vol. i. 737. sec. 129.
49. By the N.Y. Revised Statutes, vol. i. 737. sec. 128. The period during which the absolute right of alienation is suspended, is to be computed, not from the date of the instrument in execution of the power, but from the time of the creation of the power.
50. Fearne on Executory Devises, by Powell, note 347--388. Mr. Powell writes better in the instructive note here referred to, than in his original " Essay on the Learning of Powers;" and which, from the want of proper divisions of the subject, and resting places for the student, and from the insertion of cumbersome cases at large, was always a very repulsive work, and provokingly tedious and obscure. I used, in my earlier days, to make short excursions into it, as into a kind of terra incognita, but I always returned with jaded spirits, and roused indignation
51. Sugden on Powers, p. 185.
52. Sugden, p. 190. note.
53. Fearne on Executory Devises, by Powell, note 379-387. Preston on abstracts, vol. 1 237-243.
54. Tyrrell v. Marsh, 3 Bingham, 31.
55. Hawkins v. Kemp, 3 East's Rep. 410. Doe v. Peach, 2 Maule & Selw. 576. Wright v. Barlow, 3 ibid. 512. Wright v. Wakeford, 17 Vesey's Rep. 454. 4 Taunt. Rep. 212. S. C. Sugden on Powers, 205, 206. 220. 229, 230. 252-.262. The case of Doe v. Smith, first decided in the K. B., then a reversal in the Exchequer Chamber, and then the last judgment reversed in the House of Lords, gave rise to immense discussion, on the simple question whether a lease, providing, that if the rent should be unpaid by the space of fifteen days beyond the time of payment, and there should be no sufficient distress on the premises, then a re-entry, etc. was a due execution of a power to lease, so as there be contained in every lease a power of re-entry for non payment of rent. The judges were very much divided in opinion as to the validity of the objection to the execution of the power. It was admitted to be one strictissimi juris, and the opinion finally prevailed, that the power of re-entry, under those two conditions, was a due execution of the power. It was deemed a reasonable construction and inference of the intention, which must have referred to a reasonable power of re-entry. 1 Brod. 4 Bing. 97. 2 ibid. 473.
56. Woodward v. Hasley, MS. cited in Sugden, 208. Earl of Darlington v. Pulteny, Cowp. Rep. 260.
57. Whaley v. Drummond, MS. cited in Sugdcn, 209. Ibid. 209 - 220.
58. Sugden on Powers, 201.
59. N.Y. Revised Statutes, vol. i. 735, 736. sec. 113,114.
60. Tapner v. Merlott, Willes' Rep. 177. Lord Kenyon, 3 Term Rep. 765.
61. This, I presume, is referring it to the courts to cause the power to be executed according to the general intention, by an instrument competent for the purpose.
62. This provision sweeps away a vast mass of English cases requiring the exact performance of prescribed formalities. It gives great simplicity to the execution of powers, but it essentially abridges the right of the donor to impose his own terms upon the disposition of his own property.
63. N.Y. Revised Statutes, vol. i. 735, 736, 737. sec. 113-116. 118, 119, 120-124. 126. This last paragraph is a declaratory provision, for it was already the settled rule in New York, that trust estates pass by the usual general words in a will passing other estates, unless there be circumstances in the case to authorize the inference of a different intention in the testator. Jackson v. De Laney, 13 Johns, Rep. 537.
64. Co. Litt. 113. a.
65. 13 East's Rep. 118,
66. Digge's case, 1 Co. 173. Snape v. Turton, Cro. C. 472. Bovey v. Smith, 1 Vern. Rep. 84.
67. Perkins v. Walker, 1 Vern. Rep. 97.
68. Ex parte Caswall, 1 Atk. Rep. 559.
69. Sir Edward Clere's case, 6 Co. 17. b. Holt, Ch. J., Parker v. Kett, 12 Mod. Rep. 469. Hobart, Ch. J., in the Commendam case, Hob. 159, 160. Andrews v. Emmot, 2 Bro. 297. Standen v. Stan den, 2 Ves. jr. 589. Langham v. Nanny, 3 ibid, 467. Nannoek v. Horton, 7 ibid. 391.
70. Cited in Sugden on Powers, 282.
71. Bennet v. Aburrow, 8 Vesey's Rep. 609. Bradish v. Gibbs, 3 Johns.. Ch. Rep. 551. Doe v. Roake, 2 Bingham, 497. 6 Barnw. & Cress. 720. S. C. on error. In this last case Lord Ch. J. Best reviewed all the cases, from the great leading authority of Sir Edward Clere's case, down to the time of the decision, and he deduces the above conclusions with irresistible force. The judgment of the C. B. was reversed in the K. B., on the question of fact whether the intention was manifest. The principles of law were equally recognized in each court.
72. Cox v. Chamberlain, 4 Ves. Rep. 631. Roach v. Wadham.6 East's Rep. 289.
73. Sugden, p. 301.
74. Ibid. p. 321.
75. Ward v. Lenthal, 1 Sid. Rep. 243. Hatcher v. Curtis, 2 Freem. Rep. 61. Hele v. Bond, Prec. in Ch.. 474. Sugden on Powers, App. No. 2. S. C.
76. Anon. 1 Ch. Cas. 241. Colston v. Gardner, 2 ibid. 46.
77. Vol. i. 735. sec. 108.
78. Ibid. p. 733. sec. 86.
79. Ibid. p. 735. sec. 105.
80. Litt. sec. 169. Ca. Litt. 113. a. Cook v. Duckenfleld, 2 Atk. Rep. 562-567. Marlborough v. Godolphin, 2 Vesey's Rep. 78. Middleton v. Crafts. 2 Atk. Rep. 661. Bradish v. Gibbs, 3 Johns. Ch. Rep. 550.
81. 6 East's Rep. 289.
82. Scrafton v. Quincey, 2 Vesey's Rep. 413.
83. Lord Hardwicke, in Marlborough v. Godolphin, 2 Vesey's Rep. 78. and in Southby v. Stonehouse, ibid. 610.
84. 1 Co. 110. 173. Edwards v. Slater, Hard. 410. Willis v. Sherral, 1 Atk. Rep. 479. 15 Hen. VII. fo. 11. b. translated in App. No. 1. to Sugden on Powers.
85. Jenk. Cent. 184. pl. 75. Bro. tit. Devise, pl. 36. Parsons. Ch. J., 5 Mass. Rep. 242.
86. Jackson v. Davenport, 20 Johns. Rep. 537.
87. Alexander v. Alexander, 2 Vesey's Rep. 640.
88. 2 Vern. Rep. 465. Prec. in Ch. 232. S. C.
89. Hinton v. Toye, 1 Atk. Rep. 465. Bainton v. Ward, 2 ibid. 172. Lord Townsend v. Windham, 2 Vesey's Rep. 9. Paek v. Bathurst, 3 Atk. Rep. 269. Troughton v. Troughton, ibid. 656.
90. 7 Vesey's Rep. 506.
91. 12 Vesey's Rep. 206.
92. N.Y. Revised Statutes, vol. i. 734. sec. 93.
93. N.Y. Revised Statutes, vol. i. sec. 96, 97.
94. Ibid. sec. 98, 99.
95. Ibid. sec. 100. 103. 131
96. Ibid, p. 735. 737. sec. 107.125-131.
97. 4 Vesey's Rep. 784.
98. 1 Ves. & Beam. 79.
99. The Master of the Rolls, in Kemp v. Kemp, 5 Vesey's Rep. 857.
100. Vanderzee v. Aclom, 4 Vesey's Rep. 771. Kemp v. Kemp, 5 ibid. 849. Astry v. Astry, Prec. in Ch. 256. Thomas v. Thomas 2 Vern. Rep. 513.
101. 2 P. Wms. 227. note. Tollet v. Tollet, ibid. 489.
102. Brown v. Higgs, 8 Vesey's Rep. 574.
103. Sugden on Powers. 341. to 421.
104. Liefe v. Saltingstone, 1 Mod. Rep. 189. The King v. Marquis of Stafford, 7 East's Rep. 521.
105. Waneham v. Brown, 2 Vern. Rep. 153. Long v. Long, 5 Vesey's Rep. 445.
106. Roberts v. Dixall, 2 Equ. Cas. Abr. 668. pl. 19. Lord Macclesfield, in Mills v. Banks, 3 P. Wms. 9.
107. Whitlock's case, 8 Co. 69. b. Phelps v. Hay, MS. App. to Sugden on Powers.
108. Sugden, p. 452, 453. Talbot v. Tipper, Skinner, 427. Earl of Tankerville v. Coke, Moseley, 146. Lord Hinchinbroke v. Seymour, 1 Bro. 395. Bristow v. Warde, 2 Vesey, jr. 336.
109. Sugden, 514, 515.
110. The Master of the Rolls, in Alexander v. Alexander, 2 Vesey's Rep. 642. Brudenell v. Elwes, 1 East's Rep. 442.
111. Vide supra, p. 107.
112. Peters v. Marsham, Fitzg. 156. Sir Thomas Clarke, in Alexander v. Alexander, 2 Vesey's Rep. 640. Adams v. Adams, Cowp. Rep. 651. Commons v. Marshall, 7 Bro. P. C. 111. See also, supra, p. 105. and the authorities there cited.
113. Goodright v. Cater, Doug. Rep. 477.
114. 15 Hen. VII. fo. 11. b. translated in App. No. 1. to Sugden on Powers. Co. Litt. 237. a. 265. b. Digges's case, 1 Co. 175. a. Willis v. Shorral, 1 Atk. Rep. 474. Sugden on Powers, 50. 67.
115. Lord Mansfield, in Ren v. Bulkeley, Doug. Rep. 292.
116. Sugden on Powers, 57.
117. Doug. Rep. 292.
118. The N.Y. Revised Statutes have placed this subject on just grounds, by declaring that the power of a tenant for life to make leases, is not assignable as a separate interest, but is annexed to the estate, and passes with the conveyance of the estate, and a special exception of it extinguishes it. So, a mortgage by the donee of the power, does not extinguish it or suspend it. The power is only bound by the mortgage, and made subservient to it.-N.Y. Revised Statutess vol. i. 733. sec. 88-91. See, also, supra, p. 107.
119. Sugden on Powers, 62-64.
120. 1 Vent. 228. Sugden, p. 66, 67. The power may be extinguished by a release under the N.Y. Revised Statutes, vol. i. 733. sec. 89. but the capacity to extinguish by fine or feoffment, has ceased with those conveyances.
121. 7 Vesey's Rep. 567.
122. Sir Edward Clere's case, 6 Co. 17. b. Peacock v. Monk,2 Vesey's Rep. 567. Lord Eldon, on appeal, in the case of Maundrell v. Maundrell, Sugden on Powers, p. 79-93. Sir Edward Sugden discusses the question upon the conflicting authorities with his usual acuteness. Vide supra, p. 50, 51.
123. Vol. i. 733. sec. 83. 85.
124. Sugden on Powers, p. 96.
125. We have one of these settlements in the case of Hales v. Risley; and Lord Ch. J. Pollexfen, in that case, gives another sample of one, and says that they are almost all in that manner. (Pollex. Rep. 250.) They continue the same in England to this day, with much increase in wary verbosity.
126. One of them (see the Jurist, vol. i. 447.) most extravagantly attempts to illustrate the jurisdiction of a court of equity over family estates placed under its protection, by the appalling inscription which Dante read over the gate leading to the infernal regions-Lasciate ogni speranza. Why did not the writer borrow his allusion from a greater genius at home, for his libel would have been equal in licentiousness, and improved in intensity? He might have referred to that "bottomless perdition" described by a far more daring and sublime imagination than Dante's, as the place where hope never comes that comes to all.