At common law an estate created by the execution of a power takes effect as if cre ated by the original deed, yet for some pur poses (here taxation under an express stat ute) the execution of the power is considered the source of title; Chanler v. Kelsey, 205 IL S. 466, 27 Sup. Ct. 550, 51 L. Ed. 882 (Holmes and Moody, JJ., dissenting).
A power to sell gives authority to sell for • cash only, and does not uphold a mere ex change; Woodward v. Jewell, 140 U. S. 253, 11 Sup. Ct. 784, 35 L. Ed. 478; Hamptbn v. Moorhead, 62 Ia. 91, 17 N. W. 202; Perry, Trusts § 769; or mortgage; Morris v. Wat son, 15 Minn. 212 (Gil. 165) ; Wood v. Good ridge, 6 Cush. (Mass.) 117, 52 Am. Dec. 771; Willis v. Smith, 66 Tex. 31, 17 S. W. 247; contra, McCreary v. Bomberger, 151 Pa. 323, 24 Atl. 1066, 31 Am. St. Rep. 760; Campbell v. Home Ass'n, 163 'Pa. 626, 30 Atl. 222, 26 L. R. A. 117, 43 Am. St. Rep. 818; and see Kent v. Morrison, 153 Mass. 137, 26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616.
Whether a power to sell includes 9. power to mortgage depends on the intent of the donor. If no absolute power appears on the face of the power, the presumption may vary according to the character of the estate created, the purpose of the power and the status of the devise; 20 H. L. Rev. 568.
A power of sale in a trust deed is not re voked by the death of the grantor; Frank v. Mtg. Co., 86 Miss. 103, 38 South. 340, 70 L. R. A. 135, 4 Ann. Cas. 54.
A power of sale in a mortgage may be executed, although no payment has been made for twenty years ; House v. Carr, 185 N. Y. 453, 78 N. E. 171, 6 L. R. A. (N. S.) 510, 113 Am. St. Rep. 936, 7 Ann. Cas. 185.
Where three executors, given power to sell real estate, have accepted the trust, one alone cannot execute the power; Wright v. Dunn, 73 Tex. 293, 11 S. W. 330; and in a devise to two sisters to sell if they desired, the power can only be exercised by their joint deed and is lost by the death of either of them; Glover v. Stillson, 56 Conn. 316, 15 Atl. 752. A power given by will cannot be delegated, but an appointment under it need not allude to the power; Hood v. Haden, 82 Va. 588.
Where an exact execution is impossible under authority of court, it may be executed as near as may be (cy-prcs) to carrying out the donor's intention ; 4 Ves. 681; 5 Sim. 632; Warner v. Howell, 3 Wash. C. C. 12, Fed. Cas. No. 17,184.
It must be made at a proper time, and, where several powers are given over differ ent parts of the same estate, in proper suc cession ; 1 Co. 174; 1 W. Bla. 281.
Equity will compel the donee to execute a power where it is coupled with a trust in which other persons are interested; Story, Eq. Jur. § 1062; and to correct a formal de fect in the manner of execution ; 2 P. Wms. 489; 622; Hunt v. Ennis, 2 Mas. 251, Fed. Cas. No. 6,889.
Three classes of cases have been held suffi cient demonstrations of an intended exer cise of a power : 1. Where there has been
some reference in the will, or other instru ment, to the power; 2. or a reference to the property, which is the subject on which it is to be executed; 3. or when the provisions in the will or other instrument, executed by the donee of the power, would otherwise be ineffectual or a mere nullity, in other words it would have no operation, except as an ex ecution of the power ; Lee v. Simpson, 134 L. S. 590, 10 Sup. Ct. 631, 33 L. Ed. 1038. See Warner v. Ins. Co., 109 U. S. 366, 3 Sup. Ct. 221, 27 L. Ed. 962 ; White v. Hicks, 33 N. Y. 392; Funk v. Eggleston, 92 Ill. 538, 34 Am. Rep. 136.
The suspension or destruction of a power may sometimes happen by a release by the donee, by an alienation of his estate, by his death, and by other circumstances.
An appendant power may be susupended by a conveyance of his interest by the donee; 4 Cruise, Dig. 221; Cro. Car. 472 ; 4 Bingh. N. c. 734; Wilson v. Troup, 2 Cow. (N. Y.) 237, 14 Am. Dec. 458 ; and may be extinguish ed by such conveyance ; 2/B. & Ald. 93; 10 Ves. 246; or by a release; 1 Russ. & M. 436, n.; 1 Co. 102b; 2 Washb. R. P. 308.
As to illusory appointments unde'r a power, see that title.
A power in gross may be released to one having the freehold in possession, reversion, or remainder, and not by any other act of the donee ; Tud. Lead. Cas. 294; Burt. R. P. § 176; Chauce, Pow. § 3172; Hardr. 416; 1 P. Wms. 777; an infant may execute a power in gross ; 7 Ch. D. 728.
A collateral power cannot be suspended or destroyed by act of the donee; F. Moo. 605; 5 Mod. 457 ; such a power may be executed by an infant ; 4 Kent 342. And see 1 Russ. & M. 431; Tainter v. Clark, 13 Mete. (Mass.) 220.
Impossibility of .,immediate vesting in in terest or possession does not suspend or ex tinguish a power; 2 Bingh. 144. A power of sale in a mortgage for condition broken is not revoked by the mortgagor's death;.
Way v. Mullett, 143 Mass. 49, 8 N. E. 881; Reilly v. Phillips, 4 S. D. 604, 57 N. W. 780. In general, a power of sale is exhausted by a single exercise of power ; Simmons v. Bay nard, 30 Fed. 532.
A power may be executed by a married woman; 4 Kent 342; but she will not be compelled . to exercise a power of appoint ment of which she is donee for the benefit of her creditors; 17 Q. B. D. 521.
As to whether the donee of a power of appointment can covenant to exercise it in a particular way, see 18 L. Q. R. 112.
See article on "Power Coupled With an Interest" by James Lowndes, in 12 Harv. L. Rev. 262; see also 19 id. 287; as to wheth er a power to sell is a power to mortgage, see 19 Harv. L. Rev. 62, where the negative is stated as the ordinary rule; as to whether a power of sale includes power to give an op tion, see Trogdon v. Williams, 144 N. C. 192, 56 S. E. 865, 10 L. R. A. (N. S.) 867.
See EXECUTIVE POWERS; JUDICIAL POWERS; LEGISLATIVE POWERS; APPOINTMENT.