IV. Of the extinguishment of powers.

There are some subtle distinctions in the English law relative to the cases in which powers are to be deemed suspended, merged, or extinguished.

347

If a lease be granted out of the interest of a donce of a power appendant, it cannot be defeated by a subsequent exercise of the power. The lease does not strictly suspend its exercise; but the future operation of the power must be in subordination to the lease, and the estate created by it cannot vest in possession until the previously created lease expires. The donee of the power cannot defeat his own grant. (e) Nor can the donee of a power simply collateral, suspend or extinguish it by any act of his own. (d) But a total alienation of the estate extinguishes *a power appendant, or in gross; as if a tenant for life, with a power to grant leases in possession, conveys away his life-estate, the power is gone; for the exercise of it would be derogatory to his own grant, and to the prejudice of the grantee. (a) Even a conveyance of the whole estate, by way of mortgage, extinguishes a power appendant or appurtenant. This is now the received doctrine, according to Mr. Sugden; (b) but the opinion of Lord Mansfield, in Ren v. Bulkeley, (c) is more just and reasonable; for why should a mortgage of the life-estate, contrary to the evident intention of the parties, affect the power beyond what was necessary to give stability to the mortgage? (d) Whether a person having a life-estate, with a power collateral or in gross to appoint, can exercise the power after having parted with his life-estate, has been made a question. The better opinion would seem to be, that

(c) Goodright v. Cator, Doug. 477.

(d) 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. 174, a. Willis v. Shorral, 1 Atk. 474. Sugden on Powers, 50, 67. West v. Barney, 1 Russ. & My. 391.

(a) Doug. 292.

(b) Sugden on Powers, 57.

(c) Doug. 292.

(d) The New York 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. Ibid. vol. i. 733, secs. 88-91. See also, supra, p. 108.

the power is not destroyed, for the estate parted with is not dis placed by the exercise of the power; though to avoid doubt, it is

*

usual first to appoint the estate, and then to convey. (e) *348 All these various powers, except the last, may be extinguished by a release to one who has an estate of freehold in the land; and, as a general rule, (though it has its exceptions,) they are extinguished by a common recovery, fine, or feoffment; for those conveyances, according to the forcible expression of Sir Matthew Hale, "ransack the whole estate," and pass or extinguish all rights, conditions, and powers belonging to the land, as well as the land itself. (a)

It has also been a question of much discussion, and of some alternation of opinion, whether a power was not merged or absorbed in the fee, in the case of an estate limited to such uses as A. should appoint, and, in default of appointment, to himself in fee. The master of the rolls, in Maundrell v. Maundrell, (b) held that the power in such a case, followed by a limitation of the fee, must be absorbed by the fee, which includes every power. This seems to be the good sense and reason of the thing, for the separate existence of the power appears to be incompatible with the ownership of the fee. But the weight of authority is decidedly in favor of the conclusion that the power is not extinguished, and may well subsist with and qualify the fee. (c) I apprehend that, by the New York Revised Statutes, the power is extinguished in such a case; for it is declared, (d) that in all cases where an absolute power of dis* 349 position is given, and no remainder is limited on the estate * of

(e) Sugden on Powers, 62-64. In Badham v. Mee, 7 Bing. 695, it was held, that where the husband took an estate for life under a marriage settlement, with power of appointment to sons, remainder, in default of appointment, to the sons successively in tail, and he became bankrupt, and his lands were conveyed to assignees, a subsequent appointment was void, inasmuch as the power was destroyed, and the remainder took effect.

(a) 1 Vent. 228. Sugden on Powers, 66, 67. Bickley v. Guest, 1 Russ. & My. 440. The power may be extinguished by a release under the New York Revised Statutes, vol. i. 733, sec. 89; but the capacity to extinguish by fine or feoffment has ceased with those conveyances.

(b) 7 Vesey, 567.

(c) Sir Edward Clere's case, 6 Co. 17, b. Peacock v. Monk, 2 Vesey, 567. Lord Eldon, on appeal, in the case of Maundrell v. Maundrell, Sugden on Powers, 79–93. 10 Vesey, 216. Sir Edward Sugden discusses the question upon the conflicting authorities with his usual acuteness. Vide supra, pp. 51, 52.

(d) Vol. i. 733, secs. 83, 85.

the grantee of the power, he takes an absolute fee; and every power of disposition is deemed absolute when the grantee is enabled to dispose of the entire fee for his own benefit. This is going, and, I think, very wisely, beyond the existing English rule; for the statute here applies to every case of an absolute power of disposition, without any limitation in default of appointment; whereas the English law is, that though such a power in a will, without any prior limited interest, would give a fee, yet, in conveyances, such a limitation would confer a power merely, and not give an estate in fee. (a) The argument is entirely with the New York amendment, and, " in reason and good sense," as the revisers said when the bill was proposed, "there is no distinction between the absolute power of dispo sition and the absolute ownership. The distinction is dangerous to the rights of creditors and purchasers; and it is an affront to common sense to say, that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure."

I have now finished a laborious, (though, I fear, much too inadequate,) examination of the doctrine of uses, trusts, and powers. They are the foundation of those voluminous settlements to which we, in this country, are comparatively strangers, and which, in practice, run very much into details, embarrassing by the variety and complexity of their provisions. The ground-work of the operation of a family settlement is the conveyance of the fee to a grantee or releasee to uses, who is usually a stranger, and whose functions and interests are generally merely nominal. Then follow the various modified interests in the shape of future uses, which constitute the essential part of the settlement. They are usually limited to the father or husband for life, then to the wife for life, then to the eldest and other sons in succession in tail, with remainder to the daughters, and, on failure of issue, to the right heirs of the settler. The estate is subject to a variety of charges for 350 family purposes, and acts of ownership become necessary in relation to the estate, and to the objects of the settlement. This requires the introduction of powers of leasing, selling, exchanging, and charging the lands, and with the reservation of a power to

(a) Sugden on Powers, 96. In Benson v. Whittam, 5 Sim. 22, the vice-chancellor held, that a bequest of dividends of stock to B., to enable him to assist such of the children of C. as he might find deserving of encouragement, was not a mere power of appointment, and that no trust was created for the children of C.

alter and modify the dispositions in the settlement, as exigencies may require. It is done by a general power of appointment in the first instance, or by adding to the limitations a power of revoca tion and new appointment. Powers are the mainspring of this machinery. (a)

The doctrine of settlements has thus become, in England, an abstruse science, which is, in a great degree, monopolized by a select body of conveyancers, who, by means of their technical and verbose provisions, reaching to distinct contingencies, have rendered themselves almost inaccessible to the skill and curiosity of the profession at large. Some of the distinguished property lawyers have acknowledged, that the law of entails, in its present mitigated state, and great comparative simplicity, was even preferable to these executory limitations upon estates in fee. Settlements, with their shifting and springing uses, " obeying, at a remote period, the original impulse, and varying their phases with the change of persons and circumstances," and, with the magic wand of powers, have proved to be very complicated contrivances; and sometimes, from the want of due skill in the artist, they have become potent engines of mischief, planted in the heart of great landed estates. These domestic codes of legislation are usually applied to estates, which necessarily require, under the English law of descents, very extended and complex arrangements, and which can well bear

the weight of them. They seem to be indispensable in opu*351 lent communities, to * the convenient and safe distribution

of large masses of property, and to the discreet discharge of the various duties flowing from the domestic ties; and the evils are, probably, after all, greatly exaggerated by the zeal and philippics of the English political and legal reformers. (a)

(a) 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. 369. In Clements v. Paske, 3 Doug. 384, the devise of estates in trust was for the use of the nephew for life, then to his eldest son, and in default of such issue, to the second, third, and every other son of his nephew succes. sively, in remainder, one after the other, and the heirs male of the bodies of such second, third, and other sons, as they should be in seniority of age and priority of birth; and in default of such male issue, then to the eldest son of another nephew, and so on with like remainders; and in default, &c., remainders to the daughters of the last nephew, and remainder over, &c. Lord Mansfield observed, that the will in that case was in strict settlement, which was a form well known, and always in the same words!

(a) One of them (see the Jurist, vol. i. 447) very extravagantly attempts to illus

The Revised Statutes of New York have made great alterations in the law, and some valuable improvements, which we have already noticed under the articles of estates in the expectancy, uses, trusts, and powers; and I presume I need not apologize to the American student for attracting his attention so frequently to the statute law of a particular state. The revision contains the most extensive innovation which has hitherto been the consequence of any single legislative effort upon the common law of the land; and it will deserve and receive the attention of lawyers and statesmen throughout the Union. There is much in the work to recommend it, and there is also cause for apprehension, on account of the depth to which the hand of reform has penetrated, in pursuit of latent and speculative grievances. It ought never to be forgotten, that the great body of the people in every country, in their business concerns, are governed more by usages than by positive law. The learning concerning real property, which we have hitherto been considering, appears likewise to be too abstract, and too complicated, to admit, with entire safety, of the compression which has been attempted, by a brief, pithy sententious style of composition. There is a peculiar and inherent difficulty in the application of the new and dazzling theory of codification to such intricate doctrines which lie wrapped up in principles and refinements, remote from the ordinary speculations of mankind. Brevity becomes obscurity, and a good deal of circumlocution has heretofore been indulged in all legislative production; and reservations, provisos, *352 and exceptions, have been carefully inserted, in order that the meaning of the lawgiver might be generally, and easily, and perfectly understood. This has been the uniform legislative practice in England, from the date of Magna Charta down to this day. The intelligence of the great body of the legislature, in any country, cannot well be brought to bear upon a dense mass of general propositions, in all their ties, relations, and dependencies, or be made to comprehend them; and the legislation by codes becomes essentially the legislation of a single individual. When the revisers proposed to abolish "all expectant estates," except such as are enumerated and defined; "and uses and trusts," except such

trate the jurisdiction of a court of equity over family estates placed under its protection, by applying to it the appalling inscription which Dante read over the gate leading to the infernal regions - Lasciate ogni speranza.