principal. The conveyance is, in fact, the deed of the principal, and it is considered as executed by him. It is, therefore, essential that the deed should be an operative, independent, and substantive conveyance. If it be a feoffment, it must be accompanied with livery of seisin; if it be a bargain and sale, it must be enrolled; and if it be a release, it must be grounded on a bargain and sale for a year under the statute, or a lease at common law with actual entry. And the land may consequently be conveyed to one to uses, and the statute will execute the uses. The estates created will depend simply on the instrument in which they are contained, although the deed itself depends for its validity as a conveyance, upon the letter of attorney, by virtue of which it was executed; for the power must be produced before the deed can be read in a court of justice (a). And we may here dismiss the consideration of letters of attorney, with this one observation, that the deed must be executed in the name of the principal; but where that is done, it is immaterial whether the attorney place his own name first or last. Therefore, an execution thus, "for A. B. (the principal), C. D. (the attorney), L. S. is valid (b).

It is usual to declare in powers of revocation and new appointment, that the donee may revoke, and by the same, or any other deed, appoint new uses; but it is clear, that without this provision, a power of revocation and new appointment may be executed by the same instrument, unless the deed creating the power expressly require distinct deeds. The former uses cease ipso facto by the revocation, without entry or claim (c). The instrument

(4) Johnson v. Mason, 1 Esp. Rep. (6) Wilks v. Backs, 2 East. 142. 89. (c) See post, sect, 8.

is, in construction of law, first, a revocation of the old uses, and then a limitation of the new uses (d). Nor is this the only case in which the law adjudges priority in distinct parts of one and the same deed. It is upon this principle, that a lease and release in the same deed, although certainly a very informal conveyance, has been several times ruled to be a good conveyance, for priority shall be supposed. We have seen that every power is, in effect, a power of revocation and new appointment; and it is, therefore, in many cases of absolute necessity that the powers should be allowed to be executed by the same deed.

Where it is intended not to make an irrevocable appointment, an express power of revocation should be reserved in the deed executing the power: if it be omitted the appointment cannot be revoked (e).

(d) Digges's case, 1 Rep. 164-6 resol. S. C. Mo. 603; Co. Litt. 237 a. (e) Vide infra, sect. 7.

SECT.

SECTION II.

OF THE INSTRUMENT BY WHICH A POWER MAY BE

EXECUTED.

WHERE a power is given generally, without defining

the mode in which it must be executed, it may be exercised either by deed or will; and as the operation of the instrument will simply be to declare the use, to serve which we must assume that a sufficient estate is already legally created, an estate of freehold may be limited without livery of seisin, a bargain and sale for a year, or an actual entry by the appointee; nor is it essential that the power should be executed by deed, a simple note in writing, even unattested, would be a good execution of the power (f). So whether it be a common law authority given by will, or a power operating under the statute of uses, it may be executed by feoffment (g), covenant to stand seised (h), lease and release (i), or lease and release and fine (k). But although all these modes are effectual, yet they are improper appointments. They do not operate as a feoffment, covenant to stand seised, lease and release, or fine; but as an appointment of the

(1) Saunders v. Owen, 2 Salk.

467; and see 3 East 440. (g) Daniel v. Upley, Latch 9, 39,

134; 1 Jo. 137.

(h) Stapleton's case cited by Hale, Chief Justice, 1 Ventr. 228; Dame Hasting's case, Raym. 239; 3 Keb. 511 cited, S. C. Rightv.

Thomas; 3 Burr. 1141. (i) Dyer v. Awsiter, 1 P. Wms.

165 cited, 10 Mod. 34 nom. Gier v. Osseter; Dighton v. Tomlinson, 1 Com.-194, 1 P. Wms. 149.

(k) Vide supra, p. 68.

estate,

estate, or direction, or declaration of use under the power. Therefore, if a power under the statute is, for instance, executed by lease and release, upon which uses are declared, the releasee will be invested with the legal estate by force of the statute, and the real objects of the deed will take mere trust estates.

Although where a power is not restrained to be executed by deed, &c. it may be executed by a simple note in writing; yet, if the power relate to real estate, and the donee exercise it by will, the will, it is said by most writers, must be executed as a proper will, and must consequently be attended with the solemnities required by the statute of frauds.

The cases cited for this position are, Longford v. Eyre (1), and Wagstaff v. Wagstaff (m); but, in the last of these cases, the trust was for A, his heirs and assigns, or to such person or persons as he or they should direct; and Lord Macclesfield held this to be no more than a common trust of lands in fee simple, for the last words were no more than what was implied before, and expressio eorum quæ tacite insunt nihil operatur. And in the first of the above cases, the power was expressly required to be exercised by "will," or, writing in the nature of a will," which words are construed to mean such a will as is proper for the disposition of lands within the statute of frauds; and I have not met with even a dictum in the books that where a power is given generally, and without reference to any instrument, a will made in execution of it must be treated as a proper will of real estate. It seems, indeed, once to have been holden, that if a power, although not required to be

66

() 1 P. Wms. 740.

(m) 2 P. Wms. 258.

so, was executed by bargain and sale, the deed must be enrolled as a proper bargain and sale; but Lord Chief Justice Hale was decidedly against this construction (n). His is certainly the better opinion. And, in regard to a will, it would be rather a refined distinction that the power may be executed by a simple note in writing unattested; but that if it be thrown into the shape of a will, it must be executed in the same manner as a proper will of land. It must be admitted, that a power may be given to appoint real estate by will without any witness (o); and it would, therefore, be a great stretch to hold that three witnesses are necessary in the case under discussion.

(n) Ingram v. Parker, Raym. 239; 3 Keb. 511, 538; 1 Ventr. 290, 291. (0) Vide supra, ch. 2, sect. 1.

SECT.