AGENCY.
Powers under the Statute of Uses. An authority enabling a person, through the medium of the Statute of' Uses, to dispose ot an interest in real property, vested either in himself or another person.
Methods of causing a use, with its accom. panying estate, to spring up at the will of a given person. 1Villiams, Real Prop. 245; 2 Washburn, Real Prop. 300.
The right to designate the person who is to take a use. Coke, Litt. 271 b, Butler's note, 231, 3, pl. 4.
A right to limit a use. 4 Kent, Comm 334.
An authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself law fully perform. N. Y. Rev. Stat.
They are distinguished as- Appendant. Those which the donee is authorized to exercise out of the estate limited to him, and which depend for their validity upon the estate which is in 2 Wash burn, Real Prop. 304. A life-estate limited to a man, with a power to grant leases in possession, is an example. Hardr. 416 ; 1 Caine& Cas. N. Y. 15 ; Sugden, Pow. ed. 1856, 107 ; Burton, Real Prop. 179.
Of appointment. Those which are to cre ate new estates. Distinguished from powers of revocation.
Collateral. Those in which the donee has no estate in the land. 2 Washburn, Real Prop. 305.
General. Those by which the donee is at liberty to appoint to whom he pleases.
In gross. Those which give a donee, who has an estate in the land, authority to create such estates only.as will not attach on the interest limited to him or take effect out of his own interest. 2 Cow. N. Y. 236 • Tudor, Lead. Cas. 293 ; Watkins, Conv. 260.
Of revocation. Those which are to divest or abridge an existing estate. Distinguished from those of appointment ; but the distinc tion is of doubtful exactness, as every new appointment must divest or revoke a former use. Sanders, Uses, 154.
As to the effect of the insertion of a power of revocation, either single or in connection with one of appointment, see Styles, 389 ; 2 Washburn, Real Prop. 307.
Special. Those in which the donee is re stricted to an appointment to or among par ticular objects only. 2 Washburn, Real
Prop. 307.
The person who receives the estate by ap pointment is called the appointee ; the donee of the poweris sometimes called the appointor.
2. The creation of a power may be by deed or wi//, 2 Washburn, Real Prop. 314 ; by grant to a grantee, or reservation to the grantor, 4 Kent, Comm. 319 ; and the reser vation need not be in the same instrument, if made at the same time, 1 Sugden, Pow. ed. 1856, 158; by any form of words indi cating an intention. 2 Washburn, Real Prop. 315. The doubt -whether a power is created or an estate conveyed can, in general, exist only in cases of wills, 2 Washburn, Real Prop. 316, and in any case is deter mined by the intention of the grantor or devisor, as expressed in or to be gathered frorn the whole will or deed. 10 Pet. 532 ; 8 How. 10 ; 3 Cow. N. Y. 651 ; 7 id. 187 ; 6 Johns. N. Y. 73 ; 6 Watts, Penn. 87 ; 4 Bibb, Ky. 307. It must be limited to be executed, and must be executed within the period fixed by the rules against perpetuities. 2 Ves. Sen. Ch. 61, s. c.; 1 Ed. 404, s. c. • 5 Brown, Parl. Cas. 592 ; 2 Ves. Ch. 368 ; Sim. Ch. 393 ; Lewis, Perpet. 483-485.
The interest of the donee is not an estate, Watkins, Cony. 271 ; 2 Preston, Abstr. 275 ; N. Y. Rev. Stat. art. 2, 68 ; but is sufficient to enable the donee to act, if the intention of the donor be clear, without words of inherit ance, 3 Ves. Ch. 467 ; 1 Mod. 190; 1 P. Will. Ch. 171 ; 7 Johns. Ch. N. Y. 34 ; see Coke, Litt. 271 b, Butler's note, 231 ; and niay co exist with the absolute fee in the donee. 10 Ves. Ch. 255-257 ; 4 Greenleaf, Cruise, Dig. 241, n. A power to sell does not include a power to mortgage, 3 Hill, N. Y. 361 ; and sale generally means a cash sale. 4 Kent, Comm. 331 ; 3 Hill, N. Y. 373.
As to exercising the power : if it be simply one in which no person is interested but the donee, it is a matter of election on his part whether to exercise it or not, 1 Sugden, Pow. ed. 1856, 158 ; see 3, beyond ; but if coupled with a trust in which other per. sons are interested, equity will compel- an execution. Story, Eq. Jur. 1062 ; 2 Mas. C. C. 244, 251.