
    CATHARINE HENRIETTA HASLEN against The Heirs and Administrators of EDWARD KEAN.
    
      Wilson Blount conveyed two tracts of land to Edward ¿ran, by a deed bearing date the 25th 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 Demo-rara, 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, &c. 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 Ca-tharine 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.”
    
      wherea a^tTbya^ deed, auilio-band to a'p-S" point to whom the land shall be conveyed, and in case of h’s death before his wife, authorizing her to do it, thére must be not merely an intention in the husband to appoint, but an cMual appointment, in the precise form required by the power, before tile wife’s right of appointment is defeated.
    Therefore where a phwer requires, amongst other requisites, that the trustee should convey to such person as A shbuld limit or appoint, and A executes afterwards an in! strument of writing, authorizing the trustee to convey to whom lie pleases in his disc-e.” tion, this is not an execution of the power nor a destruction of that subsequently limit* ed to the wife 1 ■
    
      Gn the 5th 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 the 25th of February 1799, between Wilson Blount and Ann his wife, of the one part, and Edward Kean of the other part, two several tracts of land containing about eight hundred acres with the buildings and improvements thereon, lying in Craven county, Were conveyed to the said Edward Kean, &c. And whereas also I, the said John Haslen, intend shortly to undertake a voyage to the colony of Demorara 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, trans. fir and hold lands in the State of North-Carolina''>
    
    
      
      John Haden went to Demorara and died in March, 1804; and Edward Kean died in August of the same year, neither of them having done any thing farther towards the execution of the power.
    
      Catharine H. Haden, 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.
    
      Browne for the Defendant.
    The construction of Powers as to their creation, &c. is the same at law as in equity and according to the substantial intention and purpose of the parties.
    
    If the clause “ qualified—Carolina” is omitted, then it gives Haslen a general power of appointing ad libitum; But if this clause had not been inserted, an alien appointed, could not have compelled an execution of the trust-
    
    This clause was inserted solely to prevent Kean , .. , , . ' b obliged to convey to an alien, which he would not, if it had not been inserted, and Expresio eorum quce tacite insunt nihil operatur.
    
    Such a clause even if it had any operation would still leave the power a fee-simple conditional-
    
    There is this difference between conveyances to an alien v which pass to him the legal possession, and those which must be enforced only by suit: In the first instance, he takes for the benefit of the king; in the latter, he takes not at all, because he cannot support any suit for real property.
    It is however, absolutely necessry for the complainant to maintain that the power gave her an absolute power in fee-simple, over the estate for her own benefit; for she hath appointed that it shall be conveyed to herself.
    
    As the question before the Court does not relate to tire suspension or extinction of the Power, it is unnecessary to tenter into the doctrine of powers collateral to the land, and relating to the land.—This however, was a power reT toting to the land, and might have been released by Has-ien being for his benefit.^ ’ 
    
    T~ . ,• r , , , ft one has a power to dispose of personal or real estate as he pleases, he is in equity considered as the owner.— This is called a general power, 6.
    
    A qualified power, is where the appointees are named an^ then it is considered as the property of the appointees, arKj the appointer only, as a trustee, and if no appoint, - ment, or an illusory one is made, it will be divided equally. 
    
    . buch powers are trusts distinct.
    
    Where the person executing the power parts with a kind'of dominion he has over the estate, as here, his execution shall be construed liberally; but a naked power al- . . . ways strictly.—i-This is nothing more than that the will of the giver shall be observed.
      b
    
    All the cases of naked powers to dispose of to twp or more, and the Court in declaring the execution of such . , , . „ , , , powers void, were perhaps infiuened by the. maxim, U Equality ’s Equity,” and the maker of the power having shewn no preference among the appointees.
    
      . All powers enforced m equity as trusts.
    As to the execution of the Power by Hasten,
    
    
      Kean by the deed from Blount had the power of transmitting it by descent, and the deed from Hasten gave liim the power of selling and conveying at his discretion.
    
      All the interest that Hasten had in these lands was derived from the clause in the deed from Blount, binding Kean to convey at his (Hasten sJ discretion. Hasten, by the deed of Feb. 25, 1799, appoints Kean to convey at his (Kean's J discretion. The import of the expressions is the same in the one deed as in the other : and if the one deed does not convey from Hasten to ASfcr, the same interest which the other conveyed from Blount to Hasten, it is very odd, and a plain man must be as much surprised at it as my Uncle Toby was, when he was informed ths*t all the common lawyers and civilians, were unanimously of opinion that the Dutchess of Suffolk was not of kin to her son.
    Whenever-it appears that the person having a power, has done an act with the intention of executing that power, it will be a good execution of the power in equity—altho* the deed does not recite or refer to the power—altho’ it is an improper one for the purpose, and purports to convey as owner,- and altho’ a considerable part of it must be rejected, in order to enable the Court to construe it an appointment : And it will be sufficient evidence of the intention to execute. If the party could not do the act validly, but in virtue of the powers ; or if the power is recited or referred urito.
    
    • The deed of Feb. 25, 1799, recites the power as the foundation and support of what he was about to do. His being about to undertake a sea-voyage, in which he apprehended his life would be exposed to danger, and where he would be without the proper assistance orjwitnesses to enable him to execute his power as the causes of what he was about to do.
    A power of attorney would not have answered his purposes, (and he knew it i for every one is presumed to know the law, even to subject them to penalties and punishment) as his death would have revoked it. Then ‘‘in execution*of the power,” &c. We contend this Was an execution of the power ; they say it was not; What does he himself say ? What does Lord Uardwicke s&y 
      
       And what do they say ? When they dispute the fact or in-tendon, Mr. Haslen contradicts them :—When they dispute the law, Lord Hardwicke contradicts them.
    “ I the said John Haslen J &c. Haslen certainly intended to do soihething in execution of his power. They tell us, as a Power of Attorney it is void for want of Haslen having an authority to delegate; and that as an appointment of the interest, it cannot operate on account of the words, “shall be conveyed, &c.” If this doctrine was correct, the Court would be warranted by the case of Tomlinson v. Dcighton, in rejecting these words, and reading it as a plain appointment.
    Rut, we contend there is no necessity for this. This clause gives him ample power to sell and convey at his discretion, the words “ to any person,” &c. operating nothing as I have already shewn.
    I will just add.—If lands are devised to one to dispose °f at will and pleasure, that gives a fee to the devisee.
    
    Now in wills the intent of the testator to give governs, - ° 1 and here the intent to execute governs. Very like the present case, is Hinton St? als. v. Toue.
      
       J
    
    
      Kean had the possession, the legal fee-simple, and the . , , . 1 . , equitable tee-simple, all united in him, and what more did he want—he had a right to direct a convaeyance to himself. “ L Kean limits and appoints that I. Kean shall convey to I. Kean?' Trust—privity in estate, and confidence in the person
    
    
      ^ devise of any thing to be at the disposal of A. by his last will and testament, gives a fee to A.
    
    
      If money is directed to be turned into land or land into money, for the benefit of any one, he may elect to have the thing without its being turned.
    
    All powers enforced in equity as trusts.
    It is universally true that where the legal and equitable estates meet in the same person, the eijuitable merges in the legal without any act done.
    
    
      Vincent & White, 15 East 173. and Larmer v. Learie, 2 Wils. 29. are cases of successive not concurrent or coexisting estates.
    Gaston, for Complainant.
    To decide the first question correctly, it is proper to enquire, 1st, What control has been given to the complainant over the land in question by the deed of Blount l and, 2dly, How is that control effected by Haslen's deed of 5th of April, 1799?
    1st. Blount's deed is a bargain and sale, by which, in consideration of value received from Kean, he conveys to him the fee simple of the land. No interest of any kind is reserved to the bargainor- The entire legal estate passes to the bargainee, because the consideration necessarily raises an use for the bargainee which the statute of uses executes, and none other can be executed by the statute. Besides this use to the bargainee, one other is expressed for the benefit of an unknown person, and on the happening of a future contingency, that is to say an use for such person as John Haslen in his lifetime may direct Kean to convey the land to, or if John should not give such direction, as Mrs. Haslen, the complainant, mav direct. Until such a dirAtion given to Kean, he takes the entire estate both legal and equitable. When such a nomination is made, there is a trust declared that Keart shall convey accordingly. Kean therefore takes the entire legal and equitable estate, subject however to a con* tingent trust for the benefit of an unknown person, which trust is to be called into action by the execution of a power vested in John Haslen for life, and after his death in the complainant—not a contingent use which the statute will execute aS soon as it is raised, but a trust whjch á Court of Equity will carry into execution. This trust is similar to a lf!l use on a feoffment at common law.
      John Haslen, and after his death Catharine Haslen, the complainant, take nothing in %he land by virtue of this deed. The only connection between them.or either of them, and the land itself, or the enjoyment of the land, is through the medium of their Power, by which they can tg^mto action this sleeping trust. It follows then, that according to every definition of legal writers, their Power i§ one “simply collateral.” This Power bears a resem blance to ownership in its almost unlimited ability to direct alienation. In this respect, it is as unlimited as ownership, except that the alienee is required to be a person having a capacity to hold real estate, whefeaá an owner may convey to. one not having such a capacity, and under such a conveyance the alienee shall take though he may not hold the land. From this extensive control over alienation, it may deserve to be called a General Power. But it is utterly dissimilar from ownership in this~respecty that it carries.with it no right whatever to use or enjoyment, and on this account it is simply collateral to the land. Its entire character is that of a “ General Collateral Power of Appointment” in John Haslen for life, and aff ter his death in the complainant Catharine Henrietta Has* len, his widow
    
    2dly. How is the right of control in the complainant over the land conveyed by Blount affected by the deed of the 5th of April, ÍT99?
    The foundation of the argument for the Defendant is m the supposition that this deed was designed as a beneficial appointment in favor of Ream This is utterly denied. On the contrary, the complainant contends it is irresistibly evident that this deed was not intended to operate in itself as an appointment. The recital shews that Hasten knew what was his Power, and states it to be that of naming a person to whom a conveyance should be made. If by this deed such a Power was meant to be finally executed, we should expect to see terms used^Corresponding with the nature of the Power recited. The recital states the reason or motive for the act he is.about to perform, and that is, because he is about to undertake a long and hazardous voyage, and may never return. This has no assignable connection with a beneficial appointment in favor of Kean, and is a strange introduction to such an al£|. If the great end were the selection of Kean as the object of his bounty, it would have been natural to assign á reason for this preference, rathpr than for the execution of the deed at that tim?. The contemplated voyage and thé doubt of returning, may be very sufficient reasons for leaving with some person an authority to do an act which he wished done in his lifetime but might be prevented from doing personally ; and as Kean remained behind'although Hasten went away, he was a fit person to be clothed with' such authority, and might have numerous opportunities of doing what Hasten desired to be done. Nor is this vievS-shaken by the words “ in execution of the P®wer.” These were natural and proper whether Hasten intended an appointment ipso facto or a mere authorization to appoint* as in either alternative having no interest in the land his only claim to act was “ in execution of the Power.5’ The operative words of the deed are unquestionably not words of appointment. They direct that instead of the conveyance being made to a person at Haslen’s discretion, they shall be made to one of Kean's selection. JHad the name of any other than Kean been here used, it could not have been pretended to be an appointment to him-r-it would have been clearly but a substitution of such pei4on in lieu of Hasten to exercise the power. The words must re* taiñ their natural meaning although the ownef of the legal estate be chosen as the substitute of the donee of thé Power. Besides is it imaginable, if this instrument weré designed as an assurance of title to a valuable estate, that such carelessness of manner and laxity of phrase would have occurred ? Would there not have been some words of conveyance—or release—01 discharge—some declaration that Kean might enjoy uncontrolled by thé power—of something manifesting beyond a question Kean was to be benefited by it ? Is ⅜ probable, on that supposition, that this all-important instrument Would have remained unknown nntil after Kean’s death and the present claim preferred, and then only brought for registration and publicity ? Viewing the instrument as intending a substitution of Kean to act for Haslen, and every part of it becomes consistent with the rest and with the conduct of the parties. The recital shews that Haslen had a power Which, under the form of ordering the owner to convey did in part enable him to sell the latidi that he was about to gó to sea on a perilous voyage, before he could make such Sale, and that Kean remained behind who might have nu^ merous opportunities to sell, and was Worthy of all his confidence. Then the deed proceeds, that in execution of this Power he authorises Kean to make such a sale, and delegates to Kean, for this purpose, all the authority he himself possessed. In performing Such an act, Haslen shewed great reliance on Kean’s probity, but this was a reliance proved to be well placed. Kean met with no advantageous opportunity to sell, and therefore did nothing under the instrument, did not even give it publicity. But his representatives, far less scrupulous, in whose probity Hasten did not trust, and who are therefore Unable to do what Kean disdained, to make an appointment in favor of themselves, allege Kean’s inability to perform such an act by means of a conveyance to a third person and reconveyance to himself as equivalent to a performance, and ask a Court of Equity to presume such an Act of Iniquity done, 
      ¡ig an excuse for tjieir refusing to execute the confidence which has devolved on them ! If there be a doubt of the design of Haslen in this deed, that doubt operates against the Defendants. Tahe Complainant’s Power of appointment is as express and complete as John Haslen’s and is not to be annulled by any thing short of an unambiguous exercise of his. ⅛
    Considering the deed as a mere substitution of Kean for haslen, it will hot be denied that it became defunct by the death of Haslen, no act being previously done under it by Kean. A delegation of power (unless acted on) dies with either of the parties. A claimant under a Power , . ,. 11, . r , must claim according to the legal operation of the instrur ment by which the power is execpted. The estate in the land never having been changed since the conveyance of Blount—the dorpiant trust neyer having been wakened during the life of Haslen, there is no impediment to prevent the Complainant from calling it fopth, nor any ex cuse for refusing to obey this call. Nothing less than an appointment actually executed could avail as an objection.
    
    It is contended by the Defendants, that the deed of the £th of April operated as a release from Haslen to Kean of his Power of Appointment. This would be to assign to it a construction which it not only does not warrant, but which is forbidden by jts terms. There is not one word from which a design can be fairly inferred of an intention to release or forego the Power; but there is unequivocal evidence of a design to execute the Power, and of appointing a proxy to execute it because of the difficulties in ⅛⅜ way of personal execution. But suppose Haslen did release his Power—By a release nothing passetb bpt wh^t the Releasor hath at the time of the release. Where is the authority or the reason to be found to justify the sition that a release can discharge the right or power of one not claiming either by, from or under the release ? The existence or non-existence of Haslen’s Power is ut-terfy immaterial as it regards the Power of the Complain* an£ ; except that its annihilation secures the better against possibility of being defeated by an appointment under it. But in fact Hosier?s power could not be released. A Power however extensive, if uncoupled with an interest cannot be released. The Defendant’s counsel aware of this, have resorted to much learning to prove that a General Power of Appointment is always coupled with an interest-—is in fact tantamount to the actual ownership, and therefore may be released. This might be admitted without injury to the cause of the Complainant, for it leaves in full operation objections to the supposed appointment by virtue of the deed of the ⅜& April thsft are irresistible. Suppose such a power might be released, it does not thence follow that this deed intended an appointment to Kean—■ nor that the deed has in it words of release—nor that a release can extinguish a Bower not belonging to the re-leasor, nor dependant bn his. It would seem therefore ratfíer a matter of curiosity than profit to examine this doctrine, that a General Power of Appointment is necessarily an interest and cannot be collateral. But how is it supported ? Great reliance is placed on a note of Butler's to Goke Littleton 27i ⅞. If that note be examined with attention, it will be seen that the annotator is illustrating the relation which the instrument executing bears to the instrument creating the Power—that he shews this relation is not a relation of time—and thence infers that by the execution of a General Power of Appointment an estate may be limited to a person who could not have taken under the deed creating the Power. He thinks this property belongs to Genera}, as contradistinguished from Special Powers, because the former have not a tendency to a perpetuity, and in this respect resemble absolute own-nership. The correctness of this distinction is questioned by Powell, who assigns for his doubt a reason not readily answered, viz. that until the power be executed, alien? ation is as much suspended in the case of a General as o£ a Special Power. But whether Butler be corrector not in the distinction which he has taken between a General and Special Power of Appointment, it woftld be doing liim palpable injustice to quote him as authority for the position that a General Power cannot be collateral. Until a resemblance in one important circumstance can be confounded with absolute identity, until the old maxim “ nuU him simile est idem” be reversed, the similarity between a General Power and absolute ownership in the control over alienation, will neither make the first an interest, nor the second, a mere power. With a similarity in this respect, there is an infinite dissimilarity in another respect. Own-nership carries with it the right to receive the issues and profits. Power may be wholly unconnected with such a right. Indeed Butler has expressly negatived this doc* trine. In the note to 342 b. he adopts and sanctions the principles laid down by Powell in his Essay on Powers, who states totidem verbis there may be a General Power of Appointment simply collateral and without an interest. My Lord Coke gives as an instance of tfuch a power, a devisee that Executors shall sell lands And in the case Exparte Caszue l before quoted, it was judicially such a power was not an interest to pass in a will under a residuary devise. The cases of Hinton v. Toye,
      
       and of Tomlinson v. Deighton
      
       have been pressed into the service to uphold this discovery that a General Power never can be simply collateral. These cases prove only chat a devise to use and sell, or to be disposed of as the devisee pleases—is usually construed as a devise of the entire es-tece. The object in the construction of wills is to effectuate the intention of testators who are not usually exact in employing technical and appropriate terms. When from their words you can fairly collect a design that the devisee shall hold and dispose of the thing given at his pleasure, it is very correct to infer that the thing was designed tq be given in absolute ownership. Of the case of Haynton and Ward
      
      , it has been very properly remarked, ⅛ Holmes v. Coghill 
      
       that it is inaccurately repoj-tecb The report is in fact but a short and imperfectnote, which 0es not even set ^orth the nature of the property over which the power was given. If it were over the personal estate of his wife—and the marginal note calls it his property, and the last remark in the case assimilates it to a power which a man has to dispose by appointment of a reversion to himself in fee—it is clearly without application to the: point under discussion. If the power were over her real estate, then the decision in it brings the case within the range of Lascelles v. Corjvwallis and Townshend v. Wind-ham. These cases, and others that have been quoted, establish the^tinciple, that when a man has a general power of appointment, -which he may execute in favor of himself apd he executes such power in favor of a mere volunteer, a Court of Equity may interpose and render such an appointment primarily subject to the payment of the appoint-er’s debts. Does this prove that such Power is in itself an interest? No—we have seen it will not pass under a devise of the residue of testator’s estate. If the Power ke not executed, if an appointment be not actually made, a Court of Equity cannot act on the Power even in favor of creditors The Power itself is not an interest—but when an appointment is made in favor of a volunteer, a Court of Equity treats it as though it had been first made . , , . ' , , . , in favor of the debtor himself, and then given over to the volunteer. In such a case, when by executing the Power, he gains an interest to himself and attempts to pass it away to others in fraud of his creditors, a Court of Equity, m the language of Lord Hardrvicée,
      
       will arrest it in tran-situ, and apply it to the discharge of his debts. It is superfluous to shew the want of application of this principle to the point in discussion. Here there is no creditor—■ there is no execution of the Power—nay more, it could not have been executed in favor of Hasten. It could have been executed only in favor of one qualified to bold real estate* and he was an alien. His description in Blount's deed is “ *fohn Hasten of Demarara, Esq.” J ^
    If has also been contended by the counsel for the Defendants, that by the deed of the 5th of April Haslen's power became annexed to Kedn's estate—by such annexation the Power merged in the estate—-and this merger operated as an appointment under the power by Kean and a re-conveyance to Kean by the appointee. To this Various answers may be given. The Power could hot be annexed to the estate in Kean's hands, for the Power was not in its nature assignable. No power, whether connected with an interest or merely collateral, can be assigned unless it was made assignable at its creation. If it be connected with an interest it may indeed be released, and the consequence of a release will be, as we have seen, the • ri_ e 1 1 , T . extinction of the power of the releasor only. It may be further answered, to the refined and far fetched reasoning which is now under examination, that there is no analogy between the union of a Power to an estate, and the merger of an equitable in a legal interest. Nothing is better settled than that the proprietor of the fee may, beside his estate, have a distinct and independent power of appointment. This is the case when a conveyance is made such uses as A shall appoint, and until and for want of such appointment to him and his heirs.
    
    'There is therefore no incongruity in permitting Keaii to add to the estate, he already proposed, a power of appointment during the life of Hasten. Whether this Power remained with Hasten, or was transferred to Kean, the Power of Mrs. Hasten remained precisely the same. But supposing such an analogy to exist—equitable estates merge in legal estates not when the equitable estate is partial, and the legal estate entire; for that might work inconvenience and injustice, but only when the two estates are exactly co-eXtensive; and the effect of such a merger is, that the equitable estate then ceases to exist
      Applying this supposed analogy, we might do injustice to K-ean, to merge the partial power of appointment for the life of Haslen in Kean’s fee ; but if it must be merged, and thus cease to exist—Mrs. Hasten's power remains' in full life. The drowning of the one carries not destruc- : tion to the other—on the contrary it ensures to that other, an opportunity for action.
    An attempt has been made to invoke the aid of the Court to supply what is termed the defective appointment under the deed of the 5th April. Even were it a defective appointment, it cannot claim such aid, Equity only helps a defective execution of a Power, where there is a consideration or fraud or accident. But the enquiry is ' , , , , , . . . n . not whether there has been a detective or perfect appointment, but whether there has been any appointment, and equity never supplies the non-execution of a Power.
    
    On the second and third questions referred to the Court, nothing has been said by the Defendant’s Counsel, They are too plain to require or admit an argument.— The grant of the rights of naturalization, like the appointment of an Administrator or the probate of a will, must be recognized as valid until it be annulled ; Nor can it competent for either party to explain the meaning of deed of the 5th of April, by evidence dehors.—Au-thorities analogous to this position are to be found in 1 P. Williams 79, (2 point inBumfield v. Dap ham) 4 Rep. 4, 5. Powell, on Devises, 480, 481, 482—J Salk. 231—2 Vernon 233.
    
      
      
         Doug. 293. Ren vs. Balkely, 2 Bur. 1146, 4 T.R 748. Griffith vs Harrison, 3 T. R. 674 Pomery vs. Partington.
      
    
    
      
      
         Dyer, 2, c. 8. Co Lit. 129, b. Com. Dig. Abatement, E. 4. Alien, C. 4, 5.
      
    
    
      
       Lit. 1. and Coke’s Comment.
      
    
    
      
      
         Co. Lit. 265 b, Ib. 342 3, n. 1. Albanie Case, Rep 1 0,Ib. 173 Dygges Case, Porv. 8, 9.
    
    
      
      
        2 Vern. 465, & Lapells & als v. Cornwallis 1 Atk. 465, Hinton v. Toye 2 Atk. 172, Bainton v. Warde 3 Atk. 656, Troughton v. Troughton. 1 Ves. 9, 10.
      
    
    
      
       2 Ves 643, 2 Br Ch 38, 1 T. R. 435, N 1 Ver. 66, 1 Br. Ch 450 4 Ves Jr. 495, Brown v. Higgs 5 Ves Jr. 849, Kemp v. Kemp.
      
    
    
      
      
        See 1, P. W 157.
      
    
    
      
      
        2 Ves. 79. Doug 293, 2 Bur. 1146.
    
    
      
      
         Doug. 293, Bur 1146. Powell on Powers 111, 321 Com. Dig. Poias. C. 1, 5, Uses L. 4, 5 Tomlinson v. Deighton, 1, P. W. 157. 10 Ves. jr 258 1 Atk. 441 3 Br. Ch 230
    
    
      
      
         1 Atk. 441.
    
    
      
      2 Vern. 181 Robinson v. Durgale, 1 P IV 149, 152, 171, Tomlinson v. Deighton 1, Ambler 750, Maskelyne v. Maskelyne. 2 Ves. jr. 589, 594, Standen v. Standen 3 Ves. jr. 470, Langham v. Nenny. 2 Wils. 6, Pearson v. Otway.
      
    
    
      
      
         Com Dig. Devise, N. 4. 2 Wils 6, 1, P. W 151.
    
    
      
       1 Salk. 186 N. 3 Br.Ch. 230, i, Atk. 441.
      
    
    
      
      1 Atk. 465.
    
    
      
       1, Br. Ch 364
    
    
      
      
         Doug. 771 S Ves jr 339
      
    
    
      
       1 P. W 389, 470, 130 3 Atk. 447, 680. Amb 229.
    
    
      
      
        1 Br Chan. 364, Wade v. Paget.
      
    
    
      
      
        Cruise Tit's 12 (Trust) ch. 1 § 11.2 Bl. Com. 335.
    
    
      
      
         See Sanders on Uses and Trusts 218 315.
    
    
      
      
         Powell on Powers 4-6,
    
    
      
      
         Sanders 219 220 226 Powell on Powers, 8, 9, 10, 11, 12, Cruise Title 32 (Deed) ch 15, § 3 to 9 & § 22. Co. Lit Butler's note 342, b.
      
    
    
      
      
         Powell 8 & 9.
    
    
      
      
         Littlet on. 66 Co. Lit. 52, t>.
      
    
    
      
      2 Vesey 75 to 77.
      
    
    
      
      
         Ex parte George Caswell, 1 Atk. 559.
    
    
      
      
        Little Sect. 446
      
    
    
      
       Powell 15. Sanders 219 Co. Lit. 265. b.
    
    
      
      
         See the note from p. 3. § 4.
    
    
      
      
         See Powell's note to 2d. Fearne. 375 to 379
    
    
      
       Page 9.
    
    
      
      
         Co. Lit. 265, b.
      
    
    
      
       1 atk. 464
    
    
      
      
        1 P. Wms. 15
    
    
      
       2 Atk. 172
    
    
      
      
         7 Ves. jr. 499.
    
    
      
      
         Ex-parte Caswell. 1 Atk. 559
    
    
      
      
        1 Fonblanque, 276, 326. Holme v. Coghill, 7 Ves. Jr. 499.
    
    
      
      
         Townsend v. Windham, 2 Ves. 11.
      
    
    
      
      
        Cruise Title 32 Deed c. 16 § Powell on Powers 372, 3, 4. 2 Vesey 643.
    
    
      
      
        See Maundrell v. Maunbundre 10 Ves jr. 263 to 266. Co. Lit. Note 216.
    
    
      
      
         Philips Brydges; Ves jr. 1266
    
    
      
      
        Cruise Title 32, Deed, ch. 19.
    
    
      
      
         Powell on Powers 157 Cruise Supra, §14.
    
    
      
       Allen v. Dundas 3 Term 132.
    
   Seawell, J.

It seems to me that this case lies within a narrow compass; and that the whole question settles down into this enquiry ; 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 is between pure volunteers without any kind of consider-: átlon 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 make it necessary to enquire 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 he 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 authorises 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 hada beneficial interest} but it is indrspensible for those who claim the execution of the power, to shew every circumstance' necessary therefor.

But assiiniing it as á fact that the husband was qualified and could appoint himself, and that having a beneficial intérest, could delégate this power, has Haslen exercised it? He' has not. But :Ken 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, sell, alien and convey to any persons in his discretion, who should be qualified to take, hold and transfer lands in North-Carolina : in substance, the deed is, that Hasten authorises 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 Hasten could be present to appoint him. And though Hasten 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 any thing like the remotest intention in Hasten to effect any other object than a bare substitution. There is nothing in the deed which even implies that Hasten had surrendered or released to Kean the right of appointing ; nor can I think there was any thing in the deed which prevented Hasten 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 intrusted 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 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 wile 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 claint 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 one older in the profession than mvself: 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 shew it, they must, pf consequence, shew 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 liad not, that it was then a in ere personal confidence, which could apt 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 was spent by death ; for Blount, who created both powers, 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 husbandj does the power of the wife remain alive. ‘

I readily admjt the execution of a power limited tq ptrangers, is to be fairly construed, and this 1 understand the books to mean when they say “ liberally” construed, and that they are to be supported if there appears an i?ir Sentían, and the manner employed is within the fair and liberal exposition of that prescribed by the donor; and had the husband clearly evinced such intension by limit* jjng in this deed that Kean should have, hold and enjoy th£ «state, or words to that effect, that such appointment would have been sufficiently formal, and would have en. abled him to have resisted the wife’s power. But that* .■according to the clear design of the parties, he stood \ix CO 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 ,tp the laws of North-Carolina.

Ruffin, J, and Daniel, J. concurred.

Hall, J.

It is said in Powell on Powers, page ¾ 4‘That Powers simply collateral, are when a person is invested with/a capacity of disposing of an 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 hjs 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 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, eor can gain any by revoking or not revoking.” For this he cites Albany's case and Digges' case—The same doctrine is recognised 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 thqt Powers appendant, or Powers In gross, may be destroyed jn either of those ways-

The argument of the Plaintiff’s counsel has thrown Ifas-len'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 admited—But it cannot be admited 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 Sn his notes on Co. Lit. 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 difftrence is, that it enables him to*do thro’ 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 thatj 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 giAs him such a dominion over it, as will subject it to his debts. In this Case could not the creditors of Hasten. it he had any, ■ ■ j i have subjected these lands to their debts ?

It is stated in Co. Lit. “ 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, &c, of the land is no extingushment of his power, because it is merely collateral to the land.”

Can it be said, that upon the ceasor of the estate ⅛ Kean, Hasten 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, &c. because says Hargrave, “ collateral powers, are not in the nature of rights or tides, and cannot from their nature be releas-ec'L—t^at wfien powers are given or reserved to any person, having any estate or interest either present or future in the land, tfie exercise of these powers is considered as advantageous to him, and there is no reason why he shou‘d 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 jUasleri’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 powers. It vvould therefore seem, that Hablen might transfer his interest under the power vested in him ; for an interest he certainly had—-and the deed f >m 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 said that the deed to Kean operated as a delegation of power, and that it is a maxim, that u 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 or 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 Has en 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 &c. by the said Kean at his discretion to any person qualified to hold, acquire and transfer lands. If then he had power to cotí-vey at pleasure to any person he chose, could he not elect hold the lands himself. Suppose he had conveyed to some third person, toiild 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.”1 These latter words shew the devisor’s intention that a fee shall pass; had they not been added, only a life estate would have vested in the devisee. In this case the Ie* gai estate was in Kean, and being there, and he being au-thorised by Haslen to sell to whom he pleased, I think compleated his estate. But it is said, that if Has ¡ell’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 poweir 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 totot 
      
      1 Co. 9.
      
     
      
      
        1 Co. 174.
      
     
      
      
         271, B. note 231.
      
     
      
      
        3 Atk 656. 1 Atk. 465—2 Atk. 172—2 Ves 10.
     
      
       237, A.
      
     
      
       Co Lit 342, Note 298, Referring to Co. Lit. 265.
      
     
      
      
         Co. Lit 9, B. Was. Rep. 265, Wythe's Rep. 6, 88
     