Opinion
(January Term, 1818.)
Where a power is created by a deed, authorizing a husband to appoint to whom land shall be conveyed, and, in case of his death before his wife, authorizing her to do it, there must be not merely an intention in the husband to appoint, but an actual appointment, in the precise form required by the power, before the wife's right of appointment is defeated. Therefore, where a power requires among other requisites, that the trustee should convey to such person as the husband should limit or appoint, and the husband executes afterwards an instrument of writing, authorizing the trustee to convey to whom he pleases in his discretion, this is not an execution of the power, nor a destruction of that subsequently limited to the wife.
WILSON BLOUNT conveyed two tracts of land to Edward Kean, by a deed bearing date 25 February, 1799, "upon trust that the said Edward Kean, his executors, administrators, or assigns, shall and will at any time, at the request of John Haslen, Esq., of the colony of Demarara, in South America, or at the request of Catharine Henrietta Haslen, in case she should survive him, or in case both should die without making such request, then at the request of the executors or administrators of the survivor of them by good and sufficient deeds, such as the counsel of the said John or Catharine, his wife, or the executors or administrators as aforesaid shall advise, convey in fee simple the said several tracts or parcels of land, etc., unto such person and persons qualified to acquire, hold and transfer lands and other real estate in the State of North Carolina as the said John Haslen during his life or Catharine H., his wife, after his death, in case she should survive, or the executors or administrators of the survivor of them, by writing signed in the presence of one or more credible witnesses, or by last will and testament duly executed, shall direct, limit, or appoint."
Browne for defendant.
Gaston for complainant.
On 5 April, in the same year, John Haslen executed the following instrument of writing, in the presence of one credible witness: "Whereas, by a deed of bargain and sale bearing date 25 February, 1799, between Wilson Blount and Ann, his wife, of the one part, and Edward (701) Kean of the other part, two several tracts of land containing about 800 acres, with the buildings and improvements thereon, lying in Craven County, were conveyed to the said Edward Kean, etc. And whereas, also, I, the said John Haslen, intend shortly to undertake a voyage to the colony of Demarara in South America, and am apprehensive of the dangers to which my life will be exposed in the said voyage; now, therefore, know all men by these presents, that in consideration and in execution of the above power of appointment to be reserved to me, I do hereby direct, limit, and appoint that the land above recited and referred to may and shall be conveyed, sold, and aliened by the said Edward Kean, at his discretion, to any person or persons qualified to acquire, transfer, and hold lands in the State of North Carolina."
John Haslen went to Demarara, and died in March, 1804; and Edward Kean died in August of the same year, neither of them having done anything further towards the execution of the power.
Catharine H. Haslen, the widow of John, executed soon after his death a deed, in the presence of two credible witnesses, whereby she directed the land to be conveyed to herself; previous to which she had become naturalized in a court of record of the United States, of which she produced authentic testimonials.
It seems to me that this case lies within a narrow compass, and that the whole question settles down into this inquiry, whether the husband by the deed to Kean completely and in due form executed this power. If he did, there is an end to the wife's power; if he did not, she is entitled to appoint. The present controversy (715) is between pure volunteers without any kind of consideration on either side; and the wife is entitled, unless there has been not only an intention to appoint, but an actual appointment, and that in the precise form required by the power. This provision is proven by many authorities, Dormer v. Thurland, in 2 P. Williams; Ross v. Ewen, in 3 Atk.; Darlington v. Pulteney, in Cowp.; Powell on Powers, 150, 163, and many others there cited are directly to that point.
This makes it necessary to inquire in what manner Blount, the donor of this power, declared it should be exercised so as to defeat the right of the wife. He requires it should be by deed executed in the presence of witnesses, and that by this deed Haslen, the husband, should limit and appoint to whom Kean should convey, provided such person should be qualified to take, hold, and transfer lands in North Carolina, then the first question is, Has the husband appointed, and in the manner prescribed? That brings us to the deed by the husband to Kean. Does that appoint to whom Kean shall convey? No; it authorizes Kean to convey to whom he pleases, in his discretion. This is a confidence which Blount did not think proper to confer on Kean, nor does he vest Haslen with such a power. It may be said, however, that Haslen took a beneficial interest under the power; for, as he might appoint whom he pleased, he could consequently appoint himself. That will depend upon a fact which does not appear in this case, namely, whether he was qualified to take, hold, and transfer land in North Carolina. If he was, then he had a beneficial interest; but it is indispensable for those who claim the execution of the power, to show every circumstance necessary therefor.
But assuming it as a fact that the husband was qualified and could appoint himself, and that, having a beneficial interest, could delegate this power, has Haslen exercised it? He has not. But then it is said, having already the legal estate, with Haslen's power, he might appoint himself. Does Haslen's deed say so? It only authorizes him to bargain, (716) sell, alien, and convey to any persons, in his discretion, who would be qualified to take, hold, and transfer lands in North Carolina. In substance, the deed is that Haslen authorizes him to sell to any person, being, as the deed declares, "about to take a voyage to South America," when, as the purchaser was to be looked for, it was not in the nature of things that Haslen could be present to appoint him. And though Haslen declares in the deed that he transfers that authority in execution of the power, it is only by reference to his power, and is tantamount to saying "in virtue of his power." It seems to me utterly impossible to read this deed and collect anything like the remotest intention in Haslen to effect any other object than a bare substitution. There is nothing in the deed which even implies that Haslen had surrendered or released to Kean the right of appointing; nor can I think there was anything in the deed which prevented Haslen from revoking it the next moment. The substitute, then, must necessarily stand in the shoes of his principal, and until he had bargained and sold the lands, as he was entrusted in his discretion to do, the power of the wife remained undefeated. To consider this deed as an execution of the power, and consequently a destruction of the power limited to the wife, could only be by a presumption very far-fetched, which I think we are not warranted in doing, in favor of a stranger and pure volunteer; especially when, by so doing, we are defeating the wife, who was an object of the donor's bounty. I say the donor's, for if it was the husband's bounty, she has still a stronger claim. And according to the light I have considered this case in, it seems to me that no release, or other act of the husband, save the appointment, either by himself or substitute (if he had a right to delegate his power) could defeat the power of the wife, though he might expressly have declared it in the extinction of the wife's power. When I say "appointment," I wish to be understood that in favor of purchasers, courts of equity, on account of the consideration, will effectuate them, wherever defective, and will consider as done what the parties have agreed to do; but (717) it comes to the same thing at last, and is an appointment in equity.
The result of the whole seems to be that by this deed, if it operated at all, the power of the wife was placed at the mercy of Kean, instead of the husband; and that thereby he acquired the power, and nothing more, of defeating by his own act the claim of the wife, which before he could not; but that in both cases it required the exercise of this power. The consequence is that the wife having become qualified to take, hold, and transfer lands in North Carolina, and having appointed herself, the heirs of Kean, who hold the legal estate, must convey to her.
This case has been a subject of tedious litigation, and I have bestowed upon it all the attention which my time and situation would admit of; and it very possibly may be that through my errors and those of my brethren, who think with me, injustice is done the defendants by this determination; and I ought the more to distrust my own opinion, as it is not in accordance with that of the older in the profession than myself; but being placed here for the purpose of deciding, it is my duty to do so in the best manner I am able.
Many points were made in this case upon the difference in powers and the effect of a release; but from the view I have taken of it, they have become unnecessary to be examined, considering the manifest intention of the deed, to be only a substitution of power. But if it were necessary, I should hold that as those who claim an execution of the power must show it, they must, of consequence, show themselves qualified to be appointed. Aliens can take, so can they transfer; but they cannot hold lands. That, therefore, it does not appear the husband had any beneficial interest. If he had not, that it was then a mere personal confidence, which could not be delegated. And as to a release, that of course would have no effect if he had no interest to give up. But even if he had an interest, as the power of the wife was limited to her by the original donor, to be exercised in default of the appointment of the husband, that both being strangers, and upon an equal footing, the husband, by a release, could only relinquish to the legal owner what he had, and that the only effect would be to lop off one power, in like manner as if it were spent by death; for Blount, who created both powers, (718) and who, as the case appears, is to be considered the benefactor of both, has appointed Kean to hold the estate, subject to the appointment of the wife, in default of any appointment by the husband; and as the release could only destroy what the husband had, as between volunteers, it consequently gave Kean nothing but a dead power; it gave him no ground in equity to oppose the wife's claim; for that must be founded either in regular title, according to the prescribed form, or it must be founded upon moral obligation, which in equity dispenses with form. So long, therefore, as Kean continued to hold the lands, without any appointment being made by the husband, does the power of the wife remain alive.
I readily admit the execution of a power limited to strangers is to be fairly construed, and this I understand the books to mean when they say "liberally" construed, and that they are to be supported if there appears an intention, and the manner employed is within the fair and liberal exposition of that prescribed by the donor; and had the husband clearly evinced such intention by limiting in this deed that Kean should have, hold, and enjoy the estate, or words to that effect, that such appointment would have been sufficiently formal, and would have enabled him to have resisted the wife's power. But that, according to the clear design of the parties, he stood in no other condition than one with a general power of attorney to sell the lands in question to any person in his discretion, except such as could not hold them according to the laws of North Carolina.
RUFFIN, J., and DANIEL, J., concurred.
It is said in Powell on Powers, page 8: "That powers simply collateral are when a person is invested with a capacity of disposing of interest in or of destroying an interest in uses and trusts in which he hath not, nor ever had, any estate, first of creating such estate, as where cestui que use devised that his feoffees should sell his lands, and died. Here the power to sell was merely collateral to the right of the land, for the feoffees take thereby no interest in the land, but (719) are barely empowered to sell.
"Secondly, of destroying such estates, as if there be a feoffment in fee by A., to divers uses, with power that if B. shall revoke them, the uses shall cease, for B. has no interest in the estate subjected to his power, nor can gain any by revoking or not revoking." For this he cites Albany's case, 1 Co., 3, and Digges' case, 1 Co., 174.
The same doctrine is recognized in other books, and the same authorities relied upon, and it is said that a bare fine, feoffment, or common recovery will not destroy or extinguish them; but that powers appendant, or powers in gross, may be destroyed in either of those ways.
The argument of the plaintiff's counsel has thrown Haslen's power of appointment in the first class of powers, and takes it for granted that he has not exercised it by his deed to Kean, and that consequently that deed cannot be considered as a release of it, or as affecting it in any respect whatever. The correctness of the principle laid down by Mr. Powell may be admitted, but it cannot be admitted that Haslen's power of appointment resembles either of the instances of collateral naked powers by him set forth in the passage above recited. Hargrave in his notes on Co. Lit., 271, B, note 231, says that by a general power of appointment is understood that kind of power which enables the party to appoint the estate to any person he thinks proper, and in this sense it is opposed to a particular or qualified power, which enables the party to appoint to, or among, particular objects only. A general power enables the party to vest the whole fee in himself or any other person; in fact, therefore, giving the person such a power is nearly the same as giving the absolute fee. The only difference is that it enables him to do through the medium of a seisin previously created that which if the fee had been actually limited to him he might do by a conveyance of the land itself. So that in both cases his power of alienation is of the same extent.
Again, where there is a general power given to a person for such uses as he shall appoint, this gives him such a dominion over it as will subject it to his debts. 3 Atk., 656; 1 Atk., 465; 2 Atk., 172; 2 Ves., 10. In this case, could not the creditors of Haslen, if he had any, (720) have subjected these lands to their debts?
It is stated in Co. Lit., 237, A: "That if he that hath the power of revocation hath no present interest in the land, nor by the ceasor of the estate shall have nothing, then his feoffment or fine, etc., of the land is no extinguishment of his power, because it is merely collateral to the land."
Can it be said that upon the ceasor of the estate in Kean, Haslen may not have an interest, in whom there is a general power to direct its course, either to himself or any other person he may think proper? As to powers merely collateral, there is a very good reason given why they should not be destroyed or extinguished, etc., because, says Hargrave, Co. Lit., 342, Note 298, referring to Co. Lit., 265: "Collateral powers are not in the nature of rights or titles, and cannot from their nature be released. But that when powers are given or reserved to any person, having any estate or interest either present or future in the land, the exercise of these powers is considered as advantageous to him, and there is no reason why he should not be allowed to depart with or exclude himself from the benefit of them. But when they are given to strangers, they are intended for the benefit of some third person, and therefore the extinction of them is supposed to be injurious to some person intended to be benefited by them." In this case who can be injured by Haslen's transferring his interest in either of the ways before specified? There are no third persons, as in the case of particular or qualified powers, that can sustain any injury — as, for instance, where the power of appointment is directed to be exercised in favor of the children of a particular marriage, or particular specified friends of the person creating the power. It would, therefore, seem that Haslen might transfer his interest under the power vested in him; for an interest he certainly had — and the deed from him to Kean, if it was not a strictly regular exercise of the power vested in him, ought to be considered as valid and operating in some other way.
But it is said that the deed to Kean operated as a delegation (721) of power, and that it is a maxim that "Delegatus non potest delegare." For this is cited 2 Atk., 88. It will be seen that that was the case of a particular qualified power, to be exercised in favor of particular persons, to wit, children of a particular marriage, where there was a personal confidence and trust reposed. But it can have no analogy to the exercise of a general power, where there is neither confidence nor trust in favor of third persons. But laying these considerations aside, I am of opinion that if there has not been a technical and formal exercise of the power of appointment by the deed from Haslen to Kean, by Haslen, there has been at least a substantial one. He states in that deed that he is acting in conformity to the power of appointment vested in him by the deed from Blount to Kean, and then directs, limits, and appoints that the lands shall be conveyed, etc., by the said Kean, at his discretion, to any person qualified to hold, acquire, and transfer lands. If, then, he had power to convey at pleasure to any person he chose, could he not elect to hold the lands himself? Suppose he had conveyed to some third person, could Haslen, in the face of his own deed, compel the purchaser to give up the lands? The effect of the deed to Kean from Haslen will not depend upon the after conduct of Kean, whether he conveyed or not. If lands are devised to one "to give or to sell," these latter words show the devisor's intention that a fee shall pass; had they not been added, only a life estate would have vested in the devisee. Co. Lit., 9; B. Was. Rep., 266; 1 Wythe's Rep., 6, 88. In this case the legal estate was in Kean, and being there, and he being authorized by Haslen to sell to whom he pleased, I think completed his estate. But it is said that if Haslen's deed to Kean had any effect, it could only be during the life of Haslen; that after his death, the power of appointment survived to Mrs. Haslen. I think that that power was only intended to vest in her in case her husband did not exercise it at all; but, if he has properly exercised the power of appointment, he has done it in toto.
NOTE. — See S. c., but not so fully reported, in 6 N.C. 309.
Cited: Tillett v. Nixon, 180 N.C. 203.
(722)