KFLCC Kingdom Law 2nd Ed.

923

POWER

POWER OF SALE

In the law of corporations. The right or capacity to act or be acted upon in a par ticular manner or in respect to a particular subject; as, the power to have a corporate seal, to sue and be sued, to make by-laws, to carry on a particular business or construct a given work. See Freligh v. Saugerties, 70 Hun, 589, 24 N. Y. Supp. 182; In re Lima & H. F. Ry. Co., 68 Hun, 252, 22 N. Y. Supp. 967; Baltimore v. Marriott, 9 Md. 160. POWER COUPLED WITH AN INTER EST. By this phrase is meant a right or power to do some act, together with an in terest in the subject-matter on which the power is to be exercised. It is distinguished from a naked power, which is a mere au thority to act, not accompanied by any inter est of the donee in the subject-matter of the power. Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power? We hold it to be clear that the inter est which can protect a power after the death of a person who creates it must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing. The words themselves would seem to import this meaning. "A power coupled with an in terest" is a power which accompanies or is connected with an interest. The power and the interest are united in the same person. But, if we are to understand by the word "inter est" an interest in that which is to be produc ed by the exercise of the power, then they are never united. The power to produce the in terest must be exercised, and by its exercise is extinguished. The power ceases when the in terest commences, and therefore cannot, in accurate law language, be said to be "coupled" with it Hunt v. Rousmanier, 8 Wheat 203, 5 L. Ed. 589. And see Missouri v. Walker, 125 U. S. 339, 8 Sup. Ct. 929, 31 L. Ed. 769; Grif fith v. Maxfield, 66 Ark. 513, 51 S. W. 832; Johnson v. Johnson, 27 S. C 309, 3 S. E. 606, 13 Am. St. Rep. 636; Yeates v. Pryor, 11 Ark. 78; Alworth v. Seymour, 42 Minn. 526, 44 N. W. 1030; Hunt v. Ennis, 12 Fed. Cas. 915. A pow er or authority conferred by one person by deed or will upon another (called the "do nee") to appoint, that is, to select and nom inate, the person or persons who are to re ceive and enjoy an estate or an income there from or from a fund, after the testator's death, or the donee's death, or after the ter mination of an existing right or interest. See Heinemann v. De Wolf, 25 R. I. 243, 55 Atl. 707. Powers are either: Collateral, which are giv en to strangers; i. e., to persons who have nei ther a present nor future estate or interest in the land. These are also called simply "col lateral," or powers not coupled with an in terest, or powers not being interests. These terms have been adopted to obviate the confu sion arising from the circumstance that powers in gross have been by many called powers collat eral. Or they are powers relating to the land. These are called "appendant" or "appurtenant," because they strictly depend upon the estate lim ited to the person to whom they are given. Thus, where an estate for life is limited to a man, with a power to grant leases in posses sion, a lease granted under the power may op POWER OF APPOINTMENT.

erate wholly out of the life-estate of the party executing it, and must in every case have its operation out of his estate during his life. Such an estate must be created, which will at tach on an interest actually vested in himself. Or they are called "in gross," if given to a person who had an interest in the estate at the execution of the deed creating the power, or to whom an estate is given by the deed, but which enabled him to create such estates only as will not attach on the interest limited to him. Of necessity, therefore, where a man seised in fee settles his estate on others, re serving to himself only a particular power, the power is in gross. A power to a tenant for life to appoint the estate after his death among his children, a power to jointure a wife after his death, a power to raise a term of years to com mence from his death, for securing younger children's portions, are all powers in gross. An, important distinction is established between general and particular powers. By a general power we understand a right to appoint to whomsoever the donee pleases. By a particular power it is meant that the donee is restricted to some objects designated in the deed creating the power, as to his own children. Whartoni We have seen that a general power is bene ficial when no person other than the grantee has, by the terms of its creation, any interest in its execution. A general power is in trust when any person or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation. Cutting v. Cutting, 20 Hun (N. Y.) 364. When a power of appointment among a class requires that each shall have a share, it is call ed a "distributive" or "non-exclusive" power; when it authorizes, but does not direct, a selec tion of one or more to the exclusion of the others, it is called an, "exclusive" power, and is also distributive; when it gives the power of appointing to a certain number of the class, but not to all, it is exclusive only, and not dis tributive. Leake, 389. A power authorizing the donee either to give the whole to one of a class or to give it equally among such of them as he may select (but not to give one a larger share than the others) is called a "mixed" pow er. Sugd. Powers, 448. Sweet An instru ment authorizing a person to act as the agent or attorney of the person granting it See LETTEB OF ATTOBNEY. Every power of disposition is deemed absolute, by means of which the donee of such power is enabled in his life-time to dispose of the en tire fee for his own benefit; and, where a general and beneficial power to devise the in heritance is given to a tenant for life or years, it is absolute, within the meaning of the statutes of some of the states. Code Ala. 1886, § 1853. See POWEB OF APPOINTMENT. A clause sometimes inserted in mortgages and deeds of trust, giv ing the mortgagee (or trustee) the right and power, on default in the payment of the debt secured, to advertise and sell the mortgaged property at public auction (but without re sorting to a court for authority), satisfy the creditor out of the net proceeds, convey by deed to the purchaser, return the surplus, if any, to the mortgagor, and thereby divest POWER OF ATTORNEY. POWER OF DISPOSITION. POWER OF SALE.