the instrument of execution, in the second, the certificate shall be signed by the party whose consent is required, and be duly proved or acknowledged. When the instrument conveys an estate, or creates a charge, which the grantee of the power would have no right to convey or create, unless by virtue of the power, it shall be deemed a valid execution of the power, although the power be not cited or referred to. Lands embraced in a power to devise, shall pass by a will purporting to convey all the real estate of the testator, unless a contrary intent appears expressly or by necessary implication.a It is the general rule, that a power cannot be exercised before the time in which it was the intention of the grantor *of the power that it should be exercised. This *334 was a principle assumed by Lord Coke; and in Cox v. Day, it was adjudged, that where a power of leasing was given to B., to be exercised after the death of A., it could not be exercised during the life of A. Another rule is, that powers of revocation, and appointment and sale, need not be executed to the full extent of them at once; they may be exercised at different times over different parts of the estate, or over the whole estate, if not to the whole extent of the power. Nor does an appointment by way of mortgage exhaust a power of revocation, for it is only a revocation pro tanto.e the death of his son, his executors should sell his land by the advice of A. and B, and A. dieth in the life of the son, a sale afterwards by the executors would not be good, for the assent of A. as well as of B. was essential. Cro. Eliz. 26. 1 Leon. 286. 2 Ibid. 106. Lee's Case, S. P. Dyer, 219. pl. 8. S. P. " • New-York Revised Statutes, vol. i. 735, 736, 737. sec. 113-116. 118, 119, 120-124. 126. This last paragraph is a declaratory provision; for it was already the settled rule in New-York, that trust estates pass by the usual general words in a will passing other estates, unless there be circumstances in the case to authorize the inference of a different intention in the testator. Jackson v. De Lancey, 13 Johns. Rep. 537. b Co. Litt. 113. a. 13 East's Rep. 118. By the New-York Revised Statutes, vol. ii. 134. sec. 5, if a conveyance be made under a power of revocation, before the time appointed, it be comes valid from the time the power of revocation vests. Digge's Case, 1 Co. 173. Snape v. Turton, Cro. C. 472. Bovey v. Smith, 1 Vern. Rep. 84. Co. Litt. 113. a. (5.) Power need not be referred to. The power may be executed without reciting it, or even referring to it, provided the act shows that the donee had in view the subject of the power.a (1) In the case of wills, it has been repeatedly declared, and is now the settled rule, that in respect to the execution of a power, there must be a reference to the subject of it, or to the power itself; unless it be in a case in which the will would be inoperative, without the aid of the power, and the intention to execute the power became clear and manifest. The general rule of construction, both as to deeds and wills, is, that if there be an interest and a power existing together in the same person, over the same subject, and an act be done without a particular reference to the power, it will be applied to the interest, and not to the power. c If there be any legal interest on which the deed can *335 attach, it will not *execute a power. If an act will work two ways, the one by an interest and the other by a power, and the act be indifferent, the law will attribute it to the interest and not to the authority, for fictio cedit veritati. In Sloane v. Cadogan, it was declared by the master of the rolls, after a full discussion, to be settled, that a general disposition by will would not include property over which the party had only a power, unless an intention to execute the power could be inferred. A will need not contain express evidence of an intention to execute a power. If the will be made without any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power. The intent must be so clear that no other reasonable intent can be imputed to the will; and if the will does not refer to a power, or the subject of it, and if the words of the will may be satisfied without supposing an in Ex parte Caswell, 1 Atk. Rep. 559. New-York Revised Statutes, vol. ii. 134. sec. 4, to the same point. Hunloke v. Gell, 1 Russ. & Mylne, 515. b Sir Edward Clare's Case, 6 Co. 17. b. Holt, Ch. J., Parker v. Kett, 12 Mod. Rep. 469. Hobart, Ch. J., in the Commendam Case, Hob. 159, 160. Andrews v. Emmot, 2 Bro. 297. Standen v. Standen, 2 Ves. jr. 589. Langham v. Nanny, 3 ibid. 467. Nannock v. Horton, 7 ibid. 391. • Cited in Sugden on Powers, 282. (1) Coryell v. Dunton, 7 Barr's R, 580. tention to execute the power, then, unless the intent to execute the power be clearly expressed, it is no execution of it." In construing the instrument, in cases where the party has a power, and also an interest, the intention is the great *object of inquiry; and the instrument is con- *336 strued to be either an appointment or a release; that is, either as an appointment of a use in execution of a power, or a conveyance of the interest, as will best effect the predominant intention of the party. It may, indeed, operate as an appointment, and also as a conveyance, if it be so intended, though the usual practice is to keep these two purposes clearly distinct.c (6.) Powers of revocation. In a deed executing a power, a power of revocation and new appointment may be reserved, though the deed creating the power does not authorize it; and such powers may be reserved toties quoties. A power to be executed by will is always revocable by a subsequent will; for it is in the nature of a will to be ambulatory until the testator's death. But though the original power expressly authorizes the donee to appoint, and revoke his appointment from time to time, yet, if the power be executed by deed, it is held that there must be a power of revocation reserved in the deed, or the appointment cannot be revoked. On every execution of the power, a new power of revocation must be reserved; and a mere ■ Bennett v. Aburrow, 8 Ves. 609. Bradish v. Gibbs, 3 Johns. Ch. Rep. 551. Blagge v. Miles, 1 Story Rep. 426. 445. In this last case the English authorities are largely cited and discussed. Walker v. Mackie, 4 Russell's Rep. 76. Lovel v. Knight, 3 Simons, 275. Lempriere v. Valpy, 5 Simons, 108. Davies v. Williams, 3 Neville & Manning, 821. Doe v. Roake, 2 Bing. Rep. 497. 6 Barnw. & Cress. 720. S. C. on error. In this last case, Lord Ch. J. Best reviewed all the cases, from the great leading authority of Sir Edward Clare's Case, down to the time of the decision; and he deduces the above conclusions with irresistible force. The judgment of the C. B. was reversed in the K. B., on the question of fact whether the intention was manifest. The principles of law were equally recognised in each court. This last case was carried up by writ of error to the house of lords, and the judgment of the K. B. was affirmed, and the principles stated in the text settled. Roake v. Denn, 1 Dow, N. S. 437. b Cox v. Chamberlain, 4 Ves. 631. Roach v. Wadham, 6 East's Rep. 289. Sugden, 301. d Sugden, 321. power of revocation in a deed executing the power, will not authorize a limitation of new uses. a The rule arose from an anxiety to restrain the reservation of such powers of revocation, and, perhaps, from a desire to assimilate powers to conditions at common law; and we are disposed to agree with Mr. Sugden, that there is no good reason why a general power of revocation in the original deed creating the power, should not embrace all future execution, since it is allowed to be affected repeatedly by new powers of revocation, *337 and since a power of revocation in the original settlement is tantamount to a power, not only of revocation, but of limitation of new uses; for he that has a power to revoke, has a power to limit. The New-York Revised Statutes have given due stability to powers that are beneficial, or in trust, by declaring that they are irrevocable, unless an authority to revoke them be granted or reserved in the instrument creating the power. It is further declared,d that where the grantor in any conveyance shall reserve to himself for his own benefit an absolute power of revocation, he shall be deemed the absolute owner of the estate, so far as the rights of creditors and purchasers are concerned. Under the check of this wise provision, preventing these latent and potent capacities from being made instruments of fraud, the statute very safely allowse the grantor, in any conveyance, to reserve to himself any power, beneficial or in trust, which he might lawfully grant to another. (7.) Relates back to the instrument. An estate created by the execution of a power, takes effect in the same manner as if it had been created by the deed which raised the power. The party who takes under the ex Ward v. Lenthal, 1 Sid. v. Bond, Prec. in Ch. 474. Anon. 1 Ch. Cas. 241 Rep. 343. Hatcher v. Curtis, 2 Freem. Rep. 61. Hele Colston v. Gardner, 2 ibid. 46. It may be doubted whether the case of Ward v. Lenthal, mentioned in the preceding note, be sufficient to warrant the doctrine, that a power of revocation in a deed executing a power, will not authorize the limitation of new uses. • Vol. i. 735. sec. 108. Ibid. vol. i. 733, sec. 86. Ibid. vol. i. 735. sec 105. ecution of the power, takes under the authority, and under the grantor of the power, whether it applies to real or personal property, in like manner as if the power, and the instrument executing the power, had been incorporated in one instrument. The principle that the appointee takes under the original deed, was carried to the utmost extent *in Roach v. Wadham, a case which strikingly il- *338 lustrates the whole of this doctrine, and the singularly subtle and artificial mechanism of the English settlementlaw. An estate was conveyed to a trustee in fee to such uses as A. should by deed appoint, and in default of appointment to A. in fee. There was a fee-farm rent reserved in the conveyance to the trustee, and A. covenanted to pay it. It was held, that A. took a vested fee, liable to be divested by the execution of his power of appointment. He sold and conveyed the estate by lease and release, and, also, in the same conveyance, directed and appointed the estate and use to the purchaser. It was further held, that under this conveyance with a double aspect, the purchaser took the estate by the appointment of A., and not by the conveyance from A.; and, consequently, the purchaser was not subject to the covenant for the payment of rent, though it run with the land; for he took as if the original conveyance had been made to himself, instead of being made to the trustee to uses. The rule that the estate, under the power, takes effect under the deed creating the power, applies only to certain purposes, and as between the parties; and it will not be permitted to impair the intervening rights of strangers to the power. The deed under the power must be recorded, when deeds in general are required to be recorded, equally with any other deed. does not take effect by relation, from the date of the power, so as to interfere with intervening rights. The ancient doctrine was, that a naked power could not be barred or extin It Cook v. Duckenfield, 2 Atk. Rep 562-567. a Litt. sec. 169. Co. Litt. 113. a. Marlborough v. Godolphin, 2 Ves. 78. Bradish v. Gibbs, 3 Johns. Ch. Rep. 550. b 6 East's Rep. 289. • Scrafton v. Quincey, 2 Ves. 413. d Lord Hardwicke, in Marlborough v. Godolphin, 2 Ves. 78, and in Southby v. Stonehouse, ibid. 610. |