Power

The right, ability, or faculty of ■ doing something. An authority by which one person enables another to do some act for him. 2 Lilly, Abr. 339.

In a more technical sense, an authority vested in one person to dispose of an estate which is vested in another. (1) Inherent powers are those which are enjoyed by the possessors of natural right, without having been received from another. Such are the powers of a people to establish a form of government, of a father to control his children. Some of these are regulated and restricted in their exercise by law, but are not technically considered in the law as powers. (2) Derivative powers are those which are received from another. This division includes all the powers technically so called. They are of the following classes: a) Naked, being a right of authority disconnected from any interest of the donee in the subject matter. 3 Hill (N. Y.) 365. (b) Coupled with an interest, being a right or authority to do some act, together with an interest in the subject on which the power is to be exercised, Marshall, C. J., 8 Wheat. (U. S.) 203. A power of this class survives the person creating it, and, in case of an excess in execution, renders the act valid so far as the authority extends, leaving it void as to the remainder only. It includes powers of sale conferred on a mortgagee. Powers under the Statute of Uses. An authority enabling a person, through the medium of the statute of uses, to dispose of an interest in real property, vested either in himself or another person. 52 N. Hamp. 271. Methods of causing a use, with its accompanying estate, to spring up at the will of a given person. Williams, Real Prop. 245; 2 Washb. Real Prop. 300. The right to designate the person who is to take a use. Co. Litt. 271b, Butler's note, 231, § 3, pi. 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 lawfully perform. Rev. St. N. Y. Powers are divided generally into powers tion, which are to divest or abridge an existing estate. But as every appointment must divest an existing estate, the distinction is of doubtful exactness. They are distinguished as: (1) Appendant, being 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 him. 2 Washb. Real Prop. 304. A life estate limited to a man, with a power to grant leases in possession, is an example. Hardr. 416; 1 Caines, Cas. (N. Y.) 15; Sugd. (Pow. Ed. 1856) 107; Burton, Real Prop. § 179. (2) Collateral, being those in which the donee has no estate in the land. 2 Washb. Real Prop. 305. (3) General, being those by which the donee is at liberty to appoint whom he pleases. (4) Special, being those in which the donee is restricted to an appointment to or among particular objects only. 2 Washb. Real Prop. 307. (5) In gross, being 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; White & T. Lead. Cas. 293; Watk. Conv. 260. (6) Beneficial, when by its terms no person other than the donee has any interest in its execution. See "Beneficial Power." (7) In trust, when any person or class of persons is designated to receive the benefit. Designation of Parties. The person bestowing a power is called the "donor;" the person on whom it is bestowed is called the "donee;" the person who receives the estate by appointment of the donee is called the "appointee." When referred to in connection with the appointee, the donee is sometimes called the "appointor." By statute in New York, the term "grantor of a power" is used to denote the person by whom a power is created, and "grantee of a power" to denote the person in whom it is vested. 4 Rev. St. N. Y. § 135, p. 2451.

In real property law. A power is an authority to do some act in relation to real property, or to the creation or revocation of an estate therein, or a charge thercon, which the owner granting or reserving such power might himself perform for any purpose. Civ. Code Dak. § 298; How. St. Mich. § 5591. "Power" is sometimes used in the same sense as "right," as when we speak of the powers of user and disposition which the owner of property has over it, but, strictly speaking, a power is that which creates a special or exceptional right, or enables a person to do something which he could not otherwise do. Sweet. Technically, an authority by which one person enables another to do some act for him. 2 Lil. Abr. 339. An authority enabling a person to dispose, through the medium of the statute of uses, of an interest, vested either in himself or in another person. Sugd. Powers, 82. An authority expressly reserved to a grantor, or expressly given to another, to be exercised over lands, etc., granted or conveyed at the time of the creation of such power. Watk. Conv. 157. A proviso, in a conveyance under the statute of uses, giving to the grantor or grantee, or a stranger, authority to revoke or alter by a subsequent act the estate first granted. 1 Steph. Comm. 505. See also Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Griffith v. Maxfield, 66 Ark. 513, 51 S. W. 832; Bouton v. Doty, 69 Conn. 531, 37 Atl. 1064; Dana v. Murray, 122 N. Y. 604, 26 N. E. 21; Carson v. Cochran. 52 Minn. 67, 53 N. W. 1130; Law Guarantee & Trust Co. v. Jones, 103 Tenn. 245, 58 S. W. 219.

— General and special powers. A power is general when it authorizes the alienation in fee, by means of a conveyance, will, or charge, of the lands embraced in the power to any alienee whatsoever. It is special
(1) when the persons or class of persons to whom the disposition of the lands under the power is to be made are designated, or
(2) when the power authorizes the alienation, by means of a conveyance, will, or charge, of a particular estate or interest less than a fee. Co.ster v. Lorillard, 14 Wend. (N. Y.) 324; Thompson v. Garwood, 3 Wbart. (Pat) 305, 31 Am. Dec. 502.

— General and special powers in trust. A general power is in trust when any person or class of persons other than the grantee of such power ls designated as entitled to the proceeds or any portion of the proceeds or other benefits to result from the alienation. A special power is in trust
(1) when the disposition or charge which it authorizes is limited to be made to any person or class of persons other than the holder of the power, or
(2) when any person or class of persons other than the holder is designated as entitled to any benefit from the disposition or charge authorized by the power. Cutting v. Cutting, 20 Hun (N. Y.) 360; Dana v. Murray, 122 N. Y. 612, 26 N. E. 23; Wilson's Rev. & Ann. St. Okl. 1903, §§ 4107, 4108.

— Ministerial powers. A phrase used la English conveyancing to denote powers given for the good, not of the donee himself exclusively, or of the donee himself necessarily at all, but for the good of several persons, including or not including the donee also. They are so calied because the donee of them is as a minister or servant in his exercise of them. Brown.

— Naked power. One which is simply collateral and without interest in the donee, which arises when, to a mere stranger, authority is given of disposing of an interest, in which he had not before, nor has by the instrument creating the power, any estate whatsoever. Bergen v. Bennett, 1 Caines Cas. (N. Yil 15, 2 Am. Dec. 281; Atwater v. Perkins, 51 Conn. 198; Clark v. Homthal, 47-Miss. 534; Hunt v. Ennis, 12 Fed. Cas. 915.

— Powers appendant and in gross. A power appendant is where a person has an estate in land, and the estate to be created by the power is to, or may, take effect in possession during the tenancy of the estate to which the power is annexed. A power in gross is where the person to whom it is given has an estate in the land, but the estate to be created under or by virtue of the power is not to take effect until after the determination of the estate to which if relates. Wilson v. Troup, 2 Cow. (N. Y.) 236, 14 Am. Dec. 458; Garland v. Smith, 164 Mo. 1, 64 S. W. 188. For other compound terms, such as "Power of Appointment," "Power of Sale," etc., see the following titles. In constitutional law. The right to take action in respect to a particular subject-matter or class of matters, involving more or less of discretion, granted by the constitutions to the severui departments or branches of the government, or reserved to the pcople. Powers in this sense are generally classified as legislative, executive, and judicial See those titles. -implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the con-stitutionni or legislative grant. Ma In the law of corporations. The right or capacity to act or be acted upon in a particular 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.

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.

A power is, in a general sense of the word common in jurisprudence, any authority which one gives to another to act for him; as in speaking of the powers of an agent, or of a corporation; of a power of attorney, &c.

In a more technical sense, in conveyancing, it signifies an authority vested in one person to dispose of an estate which is vested in another. Powers are either common-law authorities, declarations, or directions, operating only on the conscience of the persons in whom the legal interest is vested, or declarations or directions deriving their effect from the statute of uses. A power given by a will to A, an executor, to sell an estate, to whom no estate is devised, and a power given by an act of parliament to sell estates, as in the instance of the land-tax redemption acts, are both common-law authorities. The estate passes by force of the will or act of parliament, and the person who executes the power merely nominates the party to take the estate. A power of attorney is also a common-law authority. A power to dispose of an estate or sum of money, of which the legal estate is vested in another, is a power of the second sort. The legal interest is not divested by the execution of the power; but equity "will compel the persons seised of it to clothe the estate created with the legal right. Powers deriving their effect from the statute of uses are either given to a person who has an estate limited to him by the deed the deed, or to a stranger, to whom no estate is given, but the power is to be exercised for his own benefit, or to a mere stranger to whom no estate is given, and the power is for the benefit of others. Powers are either: Collateral, which are given to strangers; i.e. to persons who have neither a present nor future estate or interest in the land. These are also called simply collateral, or powers not coupled with an interest, or powers not being interests. These terms have been adopted to obviate the confusion arising from the circumstance that powers in gross have been by many called powers collateral. Or relating to the land. These are called appendant or appurtenant, because they strictly depend upon the estate limited 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 possession, a lease granted under the power may operate 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 attach 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, reserving 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 amongst his children, a power to jointure a wife after his death, a power to raise a term of years to commence from his death, for securing younger children's portions, — are all powers in gross. A power may, with reference to the particular estates in the land over which it extends, have different aspects; it may, in regard to one, be a power appendant, in respect to the other, a power in gross. Thus, where an estate is settled to A for life, remainder to B in tail, remainder to A in fee, and A has a power to jointure his wife after his death, this power is in gross as to the estate for life, but appendant or appurtenant as to the remainder in fee. It may affect the latter, but never can attach on the former. 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. Wharton. Powers by the common law were divided into two sorts: naked powers or bare auhis executors shall sell his land, this power is a naked one; that is, the power which the testator so gives to his executors to sell his land is simply a power, and does not vest any interest in the land in the executors; whereas, if a man devises lands to his executors to be sold, this is a power coupled with an interest. The word power retains the same meaning when coupled with other words; thus, a power of attorney, or letter of attorney, signifies an authority which one man gives to another to act for him: and these powers are perhaps of the most frequent occurrence, being resorted to whenever circumstances are likely to occur to prevent a party doing the act desired to be done himself; as, for instance, if it were necessary that a person should sign a deed next week, but which he could not do, being obliged to set out upon a voyage to a foreign country before that time, in this case he might authorize some other person to do it for him, and the instrument by which he would confer that authority would be a power of attorney. Powers are otherwise arranged in the following threefold division; namely, powers simply collateral; powers not simply collateral, but being either, appendant or annexed to an estate, or in gross, not being incident to any estate. A power simply collateral is one which is not, and has never been, annexed to an estate; all other powers are either so annexed, or having once been so have become disannexed, in which latter case they are said to be powers in gross. Where the donee of a power to appoint lands is also the fee-simple owner of the lands, he may convey the lands for any estate, cither in exercise of his power or in virtue of his estate; but, having done so in either of these two ways, he cannot afterwards make any conveyance in the other way; which would be in derogation of his first conveyance, which for that reason is said to have either suspended or extinguished his power, according to the quantity of the estate which he has already created. Broum. Power and authority. Where a statute confers a power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative, and the words power and authority, in such case, may be construed duty and obligation. Coimty Commissioners of Anne Arundel County v. Duckett, 20 Md. 468. Power of appointment. An authority conferred upon some person to direct, that is, appoint, the person or persons ■who shall receive and enjoy landed property or the income of a fund, after the existing estate or right to the income shall have determined. authority of an agent is set forth, when formal written evidence of them is desired; otherwise called letter of attorney. Attorney, in this phrase, signifies agent; attorney in fact, not attorney at law.