Page:Black's Law Dictionary (Second Edition).djvu/931

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POWER

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 Frellgh v. Saugertles. 70 Hun. 589. 24 N. Y. Supp. 182; In re Lima 5. II. 17‘. Ry. Go., 68 Ilun. 252, 22 N. Y. Supp. 961; Biiitlmore v. Marriott, 9 Md. 160.

POWER COUPLED WITH AN INTEREST. By this phrase is meant a right or power to do some act. together with an interest In the subject-matter on which the power is to be exercised. 1t Is distingiiished from a nolred power, which Is a mere authority to act, not accompanied by any Interest of the donee In the subject-matter of the DOWET.

Is it an interest in the suhject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power?_ W's hold It to be clear that the interest which can protect a povier nfter the death of a person who creates it must be an interest In the thing Itself. In other words, the power must be engr.-ifted on an estate in the thing. The words themselves would seem to import this meaning. “A power coupled with an interest” is a power which accompanies or is connected with an interest. The power and the interest are united in, the same person. But, if we are to understand by the word “interest" an interest in that which is to be produc- ed by the exercise of the power, then they are never united. The power to produce the lu- lerest must be exercised, and by its exercise is extinguished. The power ceases when the Interest comnieuces. rind therefore cannot. in accurate law language, be said to be ‘‘coupled'’ with it. Hunt v. Bousinanier. 8 Wheat. 203. 5 L. Ed. 539. And see Missouri v. V\’alker. 1”’; U. S. 339. 8 Sup. Ct. {V29 31 L. Ed. 7L9: Gri - fith v. Maxfield. 68 Ark. 513. 51 S. W. 332: Johnson v. Johnson. 27 S. C. 309. 3 S. E. 606. 13 Am. St. Rep. 6'36: Yeates v. Pryor. 11 Ark. 78; Alworth v. Seymour. 42 Minn. 526. 44 N. W. ‘I030: Hunt v. Ennis. 12 Fed. Cas. 5315.

POWER O1‘ APPOINTMENT. A pow- er or authority conferred by one person by deed or will upon another (called the "do- nee") to appoint. that is, to select and nom- lnate, the person or persons who are to receive and enjoy an estate or an Income therefrom or from a fund. after the tcst:itor‘s death, or the dances death, or after the termluntion of an existing right or interest. See Helnemann v. De Wolf. 25 B. I. 243. 55 Atl. 707.

Powers are either: Collateral, which are given to strangers: I’. e.. to persons wIio hnve neither a present nor future estate or interest in the land. These are also called simpiy “coliatcral." or powers not coupled with an interest, or powers not being intcrcsis These terms have been adopted to obviate the contu- slon arising from the circumstance that powers ln gross bave been by many caiied powers collateral. Or ey are plmcrs relating to the land. These are called "nppendant“ or “sppurtenant." betause they strictly depend upon the estate iim- [ted to the person to whom they are given. Thus, where an estate for life is iimited to 9. man, with a power to grant leases in possession. a lease granted uniler the power may op-

923

POWER OF SALE

crate 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 he created, which wiil nttach on an interest actually vested in himself. Or they are called. “in gross." it 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 Ii niim seised in fee settles his estate on others, reserving to himself only a particular power, the power is in grass. A power to II. tcnant for life to appoint the estate after his death among his children, a power to jointure a wife after his death, a power to raise a term of years to com- mence from his death, for securing younger children's portions, are all powers in gross. An important distinction is established between ycncral and particular powers. By a g_cneriiI power we understand I1 right to 3111701?! to whomsoever the dance pleases. By a paI'lIl:l1l£I.I' povser it is meant that tho_ dnnee is restricted to some ohjects designated in _the deed creating Liie power, as to his own children. Wharton.

We have seen that a gcueriii power is beneficial when no person other_ than the grantee has, by the terms of lts creation, any_ interest in its execution. A general power is in 1 when any person or class of persons. other than the grantee of such power. is designated as entitled to the proceeds, or any pottion of the proceeds, or other benefits to_ result from the uiicnation. Cutting v. Cutting. £0 Hun (N. Y.) 304. .

When I1 power of appointment _ _ _ requires that each shall have a share. _I_l; is (tail- ed a “distrihutive" or “non-exciu ' DOWN‘: when it authorizes, but does not dire_i~t. a selection of one or more to the exclusion of the others. It is called an.

"exclusive" power, and ls also distributive; when it gives the power of iippoinlin

among a class

to ii, certain_ number of the class. but not to a i, It is exclusive only, and not distributive. Leake. 389. A power authorizing the duuee either. to give_the vshole to one of a class

share than the others) er. Sugd_ Powers. 448. Sweet.

POWER O1‘ ATTORNW. An Instru- ment anthorizlng a person to act as the agent or attorney of the person gfafltlflg it- See Lirrras or Arroannr.

POWER O1‘ DISPOSITION. Every power of disposition Is deemed absolute, by means of which the douee of such power is enabled In his life-tinie to dispose of the entire fee for his own benefit; and, where a general und beueliciai power to devise the lu- herltance is given to a tenant for life or ycais, it is absolute, within the meaning of the statutes of some of the states. Code Ala. 1886, § 1853. See I-‘owns or Arroiuriinnr.

POWER OF SALE. A ciause sometimes Inserted in mortgages and deeds of trust giving the mortgagee (or trustee) the right and power. on defsuit in the payment of the debt secured. to advertise and seii the Lnurtgaged property at pulvilc auction [but without resorting to a court for authority). satisfy the creditor out of the net proceeds. convey by deed to the purchaser. return the surplus, If

any. to the mortgagor, and thereby divest