Special. Those in which the donee is re stricted to an appointment to or among par ticular objects only. 2 Washb. R. P. 307.
See a classification by Jessel, M. R, in 15 Ch. 228.
The person bestowing a power is called the donor; the person on whom it is be stowed is called the donee.
The person who receives the estate by appointment is called the appointee ; the donee of the power is sometimes called the appointor.
The creation of a power may be by deed or 2 Washb. R. P. 314 ; by grant to a grantee, or reservation to the grantor; 4 Kent 319; and the reservation need not be in the same instrument, if made at the same time ; 1 Sugd. Pow. 158; by any form of words indicating an intention ; 2 Washb. R. P. 315. The doubt whether a power is cre ated or an estate conveyed can, in general, exist only in cases of wills ; 2 Washb. R. P. 316 ; and in any case is determined by the intention of the grantor or devisor, as ex pressed in or to be gathered from the whole will or deed ; Ladd v. Ladd, 8 How. (U. S.) 10, 12 L. Ed. 967; Sharpsteen v. Tillou, 3 Cow. (N. Y.) 651; Walker v. Quigg, 6 Watts (Pa.) 87, 31 Am. Dec. 452. It must be limit ed to be executed, and must be executed, within the period fixed by the rules against perpetuities; 5 Bro. P. C. 592; 13 Sim. 393.
The interest of the donee is not an estate; 2 PreSt. Abstr. 275; but is sufficient to en able the donee to act, if the intention of the donor be clear, without words of inherit ance; 1 P. Wms. 171; Wilson v. Troup, 7 Johns. Ch. (N. Y.) 34; see Co. Litt. 271 b, Butler's note 231; and may coexist with the absolute fee in the donee; 10 Ves. 255 ; 4 Green]. Cruise, Dig. 241, n. As a general rule a power to sell does not include a power to mortgage; Bloomer v. Waldron, 3 Hill (N. Y.) 361; Willis v. Smith, 66 Tex. 31, 1'7 S. W. 247 ; Norris v.'Woods, 89 Va. 873, 17 S. E. 552; but where it is for raising, a par ticular charge, and the estate itself is set tled or devised subject to that charge, then it may be proper under the circumstances to raise the money by mortgage, and the court will support it as a conditional sale; 1 De G. M. & G. 645; Sugd. Powers 425 ; and sale generally means a cash sale; 4 Kent 331; Ives v. Davenport, 3 Hill (N. Y.) 373. See infra. It is held that a general power to appoint makes the property so to be disposed of assets of the estate of the donee of the power for the payment of his debts ; Olney v. Balch, 154 Mass. 318, 28 N. B. 258: Clapp
v. Ingraham, 126 Mass. 200, following 3 De G., M. & G. 976; but not in New York (un der statute) either as to real or personal property ; In re Moehring, 154 N. Y. 423,148 N. E. 818.
As to exercising the power. If it be sim ply 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 Sugd. Pow. 158; see infra; but if coupled with a trust in' which other persons are interested, equity will compel an execution ; Story, Eq. Jur. § 1062 ; Hunt v. Ennis, 2 Mas. 251, Fed. Cas. No. 6,889.
A power to appoint by will, conferred on a life tenant, does not empower him to de vise the land for the payment of his own debts ; Balls v. Dampman, 69 Md. 390, 16 Atl. L. R. A. 545. But a power conferred by will to invest or use includes the power to sell ; Crawford v. Wearn, 115 N. C. 540, 20 S. E. 724.
The execution must be in the manner pre scribed, by the proper person, see APPOINT MENT, and cannot be by an assignee ; 2 Washb. R. P. 321; unless authorized by the limitation; 4 Cruise, Dig. 211; or unless an interest be coupled with the power; Wilson v. Troup, 2 Cow. (N. Y.) 236, 14 Am. Dec. 458 ; Hunt v. Rousmanier, 8 Wheat. (U. S.) 203, 5 L. Ed. 589; nor by a successor, as on the death of an executor; Tainter v. Clark, 13 Mete. (Mass.) 220. As to whether a sale by a donee who has • also an estate in the land is held to be an execution of the poyver, see 2 Washb. R. P. 325 ; Tudor, Lead. Cas. 306; 5 B. & C. 720; 6 Co. 18 ; 16 Pa. 25. The exercise of a power must refer to the power to be executed, or actually dispose of the subject of it by identifying it ; In re Neill's Estate, 222 Pa. 145, 70 Atl. 942 ; but not if the act cannot take effect but by virtue of the power; Allison v. Kurtz, 2 Watts (Pa.) 185. In order to exercise a testamentary Power, a will must, at common law, contain a sufficient' reference to the power to show an intention to exercise it. The use of the verb "appoint," especially when coupled with the express inclusion, in a general gift, of "all property, over which I have a power of appointment," would undoubtedly be a suffi cient reference in the case of a general pow er ; L. P. 17 Ir. 436, 443.