not apply. In plain terms, its application depends on a verbal distinction. It is to the work of Mr. Humphreys, from which our quotation is taken, that Mr. Brougham alludes, in his celebrated speech. After speaking of the exertions of Sir Samuel Romilly and Sir James Mackintosh, for the reform of the criminal law, he adds: 'I am sure an almost equal debt of gratitude has been incurred, on the part of the law of real property, to the honest, patient and luminous discussion which it has received from one of the first conveyancers and lawyers this country could ever boast of. Those members of the house that are conversant with our profession, will easily understand that I can only allude to Mr. Humphreys' (Brougham's Speech, p. 4.) Although differing from many of the views of Mr. Humphreys, and by no means inclined to adopt the language, in which he has expressed his proposed enactments, we cheerfully acknowledge, that in the preparation of this chapter, we have derived most important aid from his valuable work."

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"S 69. [§ 68 R. S.] As every trust is founded on a personal confidence reposed in the trustee, it ought naturally, and by the very intention of the party, to cease with the life of the trustee. No reason, it seems to us, can be assigned, why it should pass to his representatives, persons probably unknown to the party creating the trust, and in many cases, very unfit to execute his wishes. In addition to this, there are very serious inconveniences attending the transmission of trusts. It is frequently difficult to determine in whom the trust estate has vested, whether it has passed under a general or residuary devise, (for the estate of the trustee is devisable,) or has descended to heirs. In other cases, the person to whom the estate has passed, cannot be easily discovered, or is absent from the country, or labors under some legal incapacity; and then the alienation of the estate, or execution of the trust by other means, may be suspended for years, until the necessary inquiries are made; or at great expense, a suit in chancery has been instituted, and the proper decree obtained." "The remaining sections do not seem to require any particular observations. They enlarge, in some respects, the powers of the chancellor; but the propriety of the enlargement it is thought will not be doubted."

"ARTICLE III.—Of powers."

Original notes to this Article. "If the first and second Articles of this Title are adopted, a new regulation of powers in relation to lands, becomes indispensable, since it is from the statute of uses that such powers, as they are now constituted, derive their efficacy. We regard it as one of the chief benefits to result from the abolition of uses, that it affords an opportunity of placing the doctrine of powers on rational grounds, by bringing them into harmony with the general system of our laws, and adapting them to the state of our society, and the policy of our institutions.

"The law of powers, as all who have attempted to master it, will readily admit, is probably the most intricate labyrinth in all our jurisprudence. Few, in the course of their studies, have been called to enter it, who have not found it difficult to grope their way in its numerous and winding passages. In plain language, it abounds pre

eminently in useless distinctions and refinements, difficult to be understood, and difficult to be applied, by which a subject, in its own nature free from embarrassment, is exceedingly perplexed and darkened. We encounter this darkness at the very threshold of our inquiries, as the division or classification of powers, (which appears in the beginning of every elementary work on the subject,) seems industriously framed to confound all intelligence of their meaning and utility.

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'Nor is it merely because it is mysterious and complex, that a reform in this part of the law is desirable. It is liable to still more serious objections, since, as will appear in the course of our remarks, it affords the ready means of evading the most salutary provisions of our statutes. It avoids all the formalities wisely required in the execution of deeds and wills, frustrates the protection meant to be given to creditors and purchasers, and eludes nearly all the checks by which secrecy and fraud, in the alienation of lands, are sought to be prevented.

"The present division of powers, is into powers: 1. Appendant or appurtenant. 2. Collateral or in gross. 3. Simply collateral.

"These cabalistic terms, we are aware, must sound like an unknown tongue, to unpractised ears; but our objection is not to the strange phraseology in which this division is expressed, but to the principle on which it is founded. To understand this, the terms must be explained. Powers appendant and in gross, agree in the circumstance that they are both vested in a person having an estate in the lands over which the power is to be exercised. The distinction between them is this: The power is said to be appendant, when it enables the party to create an estate which must attach, in whole or in part, on his own interest. As where a power is given to a tenant for life, to make leases in possession: every lease he executes must, to some extent, take effect out of his own estate. A power is in gross, when it does not attach on the interest of the party, but enables him to create an estate independent of his own, as a power to a tenant for life, to dispose of the reversion. A power is simply collateral, when it is vested in a stranger having no estate or interest in the land.

"It is a striking error in this classification, that it overlooks entirely the nature and objects of the power itself, and regards solely the con| nexion between the party exercising the power, and the lands which it embraces. Yet it is obvious that the character, and consequently the construction and execution of the power, may be the same, whether it is vested in an owner or a stranger, or is to take effect out of a present or a future estate. Were this merely a logical mistake, it would scarcely deserve attention; but in fact, it has had an important influence on the law of powers, in all its branches. It is from this arbitrary classification, that rules equally arbitrary have been derived; rules which are first established at common law, and then by an ordinary process, evaded in chancery, through the medium of refinements, reaching circuitously that equity, which ought never to have been disregarded.

"We propose, therefore, an entirely new division of powers, not merely as expressed in terms which at once suggest the reason of their adoption, but because it rests on substantial and practical dis

tinctions. In order to classify powers, we look to their extent, and to the objects which they are meant to attain, since it is from the differences that subsist between them in these respects, that the different rules by which they are governed, are and must be derived. The most important circumstance evidently is, whether the power is to be exercised by the party for his own benefit, or the benefit of others, whether it is an interest or a trust; and it is to this distinction that the regulations we propose have a principal regard.

"Some further observations, however, are necessary, to justify our censures of the doctrines that now prevail, in relation to powers, and to evince the necessity of an alteration. They shall be briefly stated. "1. As to the creation of powers: There are at present no limits; but the owner may separate from the title the whole or any portion of his own authority, in the disposition of his lands, and retain it to himself or vest it in another. Thus a man may convey his estate in fee, and by means of a power of revocation, continue in himself the absolute dominion, leaving only a naked title to the alienee. By this device, the lands are placed effectually beyond the reach both of his own creditors, and of the creditors of the grantee. As to the creditors of the grantee, it is plain they may always be defeated by an exercise of the power of revocation. And to his own creditors, they are equally without redress; for as he has no estate or interest in the lands, but a bare authority to dispose of them as he pleases, there is nothing on which their claims can attach. To treat a mere power as actual property, would be a plain violation of legal principles, and accordingly it is not considered as such, either in law or equity. There is indeed a single case in which the creditors may be relieved. If a man, having a general power of disposition, execute it in favor of a purchaser, not for a valuable consideration, and then die, the purchaser is considered in equity a trustee for the creditors; but as against the debtor in his lifetime, or if he die leaving the power unexecuted, as against the owners of the land, the creditors are without remedy. These distinctions,' Mr. Sugden says, 'may seem refined, but they are well established.' We confess that 'refined' does not seem to us the appropriate word.

"In England, we have the authority of Mr. Humphreys for saying, that powers are often used to defeat the legal rights of creditors, and that by recent statutes, (3 Geo. IV, c. 123; 6 do. c. 16,) a partial remedy has been applied to the evil. By these statutes, it is provided that a general power, vested in a bankrupt or insolvent, shall pass to his assignees, and be exercised by them, for the benefit of the creditors. With us, if English authorities are to be followed, the law remains as we have stated.

"That a change of the existing law is here not merely proper, but necessary, will be admitted by all; and it is probably needless to offere any remarks in favor of the regulations that we propose. In reason and good sense, there is no distinction between the absolute power of disposition and the absolute ownership; and to make such a distinction, to the injury of creditors, may be very consistent with technical rules, but is a flagrant breach of the plainest maxims of equity and justice. There is a moral obligation on every man, to apply his pro

perty to the payment of his debts; and the law becomes an engine of fraud, when it permits this obligation to be evaded by a verbal distinction. It is an affront to common sense to say, that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure. We apprehend the legislature will have no difficulty in declaring, that so far as creditors and purchasers are concerned, the power of disposition shall be deemed equivalent to the actual ownership. It may perhaps be doubted, whether a general power to devise, annexed to a previous estate, should be considered an absolute power of disposition; but there are obvious means, by which, with the aid of this power, the tenant for life or years may acquire, even in his lifetime, the entire dominion of the property.

"Again; we have deemed it very important to limit the authority of the owners, in the creation of beneficial powers. It appears to us, that in this country, it can hardly happen that such a power of disposition will be separated from the legal estate, for any purpose that the law ought to favor. This separation is always a source of inconvenience, by perplexing titles and restraining alienation, and it should therefore only be permitted, when it is clear that the utility outweighs the inconvenience. As to trust powers, they cannot, from their nature, be limited; and subject as they are, to the perpetual control of the chancellor, there is little danger of their abuse; but in respect to beneficial powers, we have not been able to discover that any practical good can result from their permission, except in the cases that we have specified. In other cases, the benefit intended by the power, may be better attained by an enlargement of the estate, or by means of a trust.

"2. As to the extinguishment of powers:

"The rules with respect to the extinction of powers appendant, are, in a great measure, free from objection. Such a power is destroyed by the alienation of the estate, and can never be exercised to the prejudice of any grantee or lessee from the party. The power is however held to be extinguished, upon technical grounds, even by the execution of a mortgage. Lord Mansfield, indeed, held that the power of a tenant for life to make leases, was not destroyed by a mortgage, and that such a construction of an instrument, intended merely as a security for a debt, would be contrary to the intention of all the parties; (Doug. 392;) but this decision of an illustrious judge, who never permitted his reason to be fettered by technical rules, has been reversed, and Mr. Sugden says, it is now clear, that a conveyance of the estate, even by way of mortgage, is an extinguishment of the power.' (Sugden on Powers, p. 57.) It is to guard against this inconvenience, that we have declared the effect of a mortgage; and instead of extinguishing the power, have given to the mortgagee the benefit of its exercise, as a part of his security. With respect to powers in gross, the rules in regard to their extinguishment, though technically sound, are, in their practical operation, singularly capricious and unjust. The terms are strong, but they will be fully justified. A power in gross, it will be recollected, enables a party to convey an estate, distinct from his own; and we select the case of a tenant for life, having a general power to dispose of the reversion in fee, or a

power to devise it to particular persons. If the tenant convey the whole estate, including the fee, by bargain and sale, or other conveyance under the statute of uses, the power is not affected, but remains to be executed at his pleasure thereafter; but if he convey by feoffment, with livery of seisin, the power is destroyed. The grounds of this distinction, we are informed, are, that a bargain and sale is what is technically termed an innocent conveyance, and passes only the actual interest of the party; whereas a feoffment ransacks the whole estate, and passes or extinguishes all rights, conditions or powers belonging to the land, as well as the land itself. (Sugden, p. 64.) To the technical accuracy of this reasoning, there is probably no objection. Let us now look to its practical effects. A tenant for life, with a general power of disposition, sells the whole estate for a full consideration, and conveys to the purchaser a deed of bargain and sale. A life estate only passes, and the tenant, by virtue of his power, conveys the next day the remainder in fee to a third person. This person acquires a valid title, and the first purchaser, by means of an innocent convey-♦ ance, is effectually defrauded. Or, suppose the power to be a power to devise, and to devise only to particular persons; which is a plain trust. The tenant for life, by means of a feoffment, now ransacks the whole estate and extinguishes the power; and then the rights of the persons entitled to the trust are completely sacrificed. It is true, there are some cases in which powers have been considered as trusts in chancery, and executed as such, in case of their non-execution by the party; but no relief has ever been given, where the power was technically extinguished.

"A power simply collateral cannot be varied or extinguished at all, by any act of the party; and if these powers were merely trusts, the rule would be just; but it is obvious that a power simply collateral, may be also beneficial; for a power may be given to a stranger having no estate, to convey or charge lands for his own benefit; and yet, if he release this power for a valuable consideration, to the owner of the land, it would seem that the release is void. But although a simply collateral power cannot be barred, yet if it be vested in several, it is destroyed by the death of any one of them previous to its execution; and although accompanied with a trust, its execution by the survivors would be void, in direct contradiction to the rule, which prevails where the trustees have an estate in the lands.

"The great error, indeed, which pervades the established doctrine in relation to the distinguishment of powers is, that it disregards entirely the distinctions between beneficial and trust powers, and permits the trust to be extinguished, by the same means by which the interest is conveyed. The new regulations that we propose, are, founded on the obvious maxim, that equity will never suffer a trust to be defeated by the death or misconduct of a trustee; and the defects of which we complain are remedied, and the law rendered uniform, by applying to trust powers, the rules that have already been declared, in relation to trust estates.

"3. As to the execution of powers: The subject is so extensive, that we shall select only a few prominent topics. Where, by the terms of the power, no mode of execution is prescribed, it may be executed by