Power

1.

The authority which one person gives another to act for him: as, the powers of an agent, of an executor, a power of attorney, qq. v. Authority conferred by law to act for one's self or in behalf of the interest or estate of another or others: as, the powers of infants, lunatics, married women, of administrators, arbitrators, assignees, executors, guardians, or other trustees, qq. v. See Interest, 2, Coupled, etc. Power and authority. When a statute confers a power upon a corporation. to be exercised tor the public good, the exercise of the power is imperative; the words " power and authority " then mean " duty and obligation." ' See May. 2. Authority conferred upon one person to dispose of an estate vested in another. A -power" in a will is never imperative: it leaves the act to be done at the w Ul of the party to whom given. A "trust" is always imperative and obligatory upon the conscience of the party intrusted.'

3 Bl. Com. 12-13, 146; 45 Conn. 161; 126 Mass. 364. See Cole v. Hoeburg, 36 Kan. 263 (1887). 3 Rankin v. Buckman, 9 Oreg. 262 (1881): 20 Md. 458, 477; Dwar. Stat. 712.

Powers under the Statute of Uses. Methods of causing a use, with its accompanying estate, to spring up at the will of a given person.' A mere right to limit a use.2 The right to designate the person who is to take the use is termed the "power of appointment." If the donee of the power has no estate in the land, the power is collateral or naked; if he has an estate, it is appendant or in gross. A power "appendant" is such as he may execute out of the estate limited to him, — depends for its validity upon that estate. He may create an estate which will attach on his interest; as where, while being a tenant for life, he may make sub-leases. A power " in gross " is a power to create an estate which will not attach on the interest limited to the donee, or take effect out of his interest; as, where, as tenant for life, he may create an estate to begin after his estate ends. Called " in gross," because his estate has no concern in it. If the donee may appoint to whom he pleases, the power is general. If he is restricted to an appointment to or among particular objects, the power is special or particular. If the power be to create a new estate in any one, it is a power of appointment; if to divest or abridge an existing estate, a power of revocation.' A power coupled with an interest imports an interest in the thing itself, — a power engrafted on an estate in the thing. The power and the interest then unite in the same person, who, in executing the power, may act in his own name. He is not a substitute, but a principal; and the power survives the person who gives it.* If the donee of a power clearly intends to execute, and the mode is unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative.

— Three classes of cases at least have been held to be sufficient demonstration of an intended execution of a power: where there is reference in the instrument to the power; a reference to the property, as the subject, on which it is to be executed;

— or where the pro- ' Williams, Real Prop. 245. '4 Kent, 334. [2 Washb. Real Prop. 305, 307, cases. As to naked power, generally, see Franklm v. Osgood, 14 Johns. R, 553 (1817), cases; as to powers in gross, Thorington V Thorington, 83 Ala. 491 (1886). 8 Wheat. 203-S (1823), Marvision in the instrument, executed by the donee, would otherwise be ineffectual or a mere nullity." It the will of the donee contains no expressed intent to exert the power, and it may reasonably be gathered from the gifts and directions that the purpose was to execute it, the will must be regarded as an execution. An appointment under a power is an intent to appoint carried out, and if made by will the intent and its execution are to be sought for through the whole instrument.' The courts look at the design of the parties, and the substantial, rather than liie literal, execution of the power.3 When a power is given to executors to be executed in their official capacity, and there are no w-ords in the will warranting the conclusion that the testator, intended a joint execution of the power, as the office suiwives, the power will be construed as surviving. And courts of equity will lend their aid to uphold the power, in order to carry into execution the intention of the testator. If land is devised to a person, with general power to dispose of the same, an estate in fee-simple passes. But if the devise is for life, with power to dispose of the reversion, only a life estate passes; and if the devisee dies without having disposed of the reversion, it goes to the heir of the devisor. While at common law a married woman could not make a will, she could make an appointment by will: the latter concerning the estate of the donor of the power. "J A person, having a power for the benefit of another, cannot use it for his own benefit.' See further Appointment, 2; Discretion, 2. 3. Authority ia the departments of government to do any particular act: as, the power in a legislature to make laws; power in a judge or court to decide what the law is, or to administer justice; power in the executive to enforce the law. Power of aplpoir Ltment. The appointing power; the power to select and indicate by name individuals to hold office and to ' Blagge V. Miles, 1 Story, 446-47 (1841), cases, Story, J.; Funk v. Eggleston, 92 111. 5.34-4'/ (1879), cases; Gindrat V. Montgomery Gas-Light Co., 82 Ala. 603-6 (1886), cases; White v. Hicks, 3.3 N. Y. 892-93 (1865), cases; Hutton V. Benkard, 92 id. 301-3 _(1883), cases; Sewall v. Wilmer, 132 Mass. 134 (1882), cases. 2 Blake v. Hawkins, 98 U. S. 326 (1878), Strong, J.; Warner v. Connecticut Mut. Life Ins. Co., 109 id. 65-67 (1883). s Harker v. Eeilly, 4 Del. Ch. 80 (1871); ib. 77; 4 Kent, 344. 'Peter. . Beverly, 10 Pet. *564 (1836); Osgood v. Franklin, 2 Johns. Ch. 19 (1816). 5 Funk V. Eggleston, 92 111. B33 (1879), cases. Osgood V. Bliss, 141 Mass. 477-79 (1886), cases. ' Shanku Dewitt, 44 Ohio St. 242 (1886), cases. See discharge the duties and exercise the powers of office. I Constitutional powers are spoken of as granted or reserved; as express, expressed, and implied; as incidental or ancillary; as emmierated and non-enumerated or unenumerated; as plenary; as legislative, judicial, and executive. " The powers not delegated to the United States by the Constitution, nor prohibited by it to" the States, are reserved to the States respectively, or to the people." ' "The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested'-by this Constitution in the Government of the United States, or in any Department or Officer thereof." Executive power; judicial power; legislative power. "Judicial power "is authority to decide controversies and to administer justice; "legislative power," authority to enact laws; "executive power," authority to enforce the laws. In particular, "judicial power" is that power by which judicial tribunals construe the Constitution, the laws enacted by Congress, and the treaties made with foreign powers or with the Indian tribes, and detfermine the rights of the parties in conformity with such construction.* '* Judicial power " is undoubtedly power to hear and determine; but this is not peculiar to the judicial office. Many of the acts of administrative and executive officers involve the exercise of the same power. Boards for the equalization of taxes, of public woi;ks, of county commissioners, township trustees, judges of election, viewers of roads, all, in one form or another, " hear and determine " questions in the exercise of their functions, more or less directly affecting private as well as public rights. It may be conceded that power to hear and determine rights of property and of person between private parties is judicial, and can be conferred only upon the courts. But such a definition does not necessarily include the case of the governor of a State, like that of Ohio, empowered to remove any police commissioner, and cannot, therefore, conflict with the constitutional provision conferring judicial power upon the courts.' See further Judicial. 1 Attorney-General v. Kennon, 7 Ohio St. 556 (1857). Constitution, Amd. Art. X. s Constitution, Art. I, sec. 8, cl. 18. See Civil Eights Cases, 109 U. S. 18 (1883). ' Gilbert v. Priest, 65 Barb. 448 (1873), Mullin, P. J. See also -New Orleans, &c. R. Co. v. Mississippi, 102 U. S. 141 (1880).

Implied power

Such power as is necessary to carry into effect powers expressly granted.

1 See Consxitdtion; Cottrts; Deleqatds, Potestas, etc.; Discretion, 5; Goternment.