neously called collateral, whereas, according to Lord Hale's definition, it was certainly in gross." The observation, that the power in question was a power in gross, is correct; but it was not erroneously called col lateral as a power in gross, and a power collateral (not simply collateral) is one and the same thing.

There is, however, still an authority behind, which may perhaps be adduced against these observations. The case to which I allude is Tomlinson v. Dighton, reported in many books, which was a devise to A for life, and then to be at her disposal, provided that she disposed of the same to any of her children after her death. She executed the power by lease and release, and a fine; and a question arose as to the due execution of the power. According to the report in Salkeld (p), two questions were made, the second of which was, whether this power could be construed as a power appendant to the estate for life, so as, by the destroying of that, it might be destroyed or extinguished, or a collateral one. Powell, Justice, said this was not a power appendant or appurtenant, nor was it in the nature of an emolument to the estate like a lease for life, with a power to make leases for twenty-one years, for that affects the estate for life, and is concurrent with it, and has its being and continuance, at least for some part, out of it; but this power arises after the estate, and has its effect upon another interest, so that the estate for life is perfect without it, and no ways altered nor affected by the execution of it. Upon an attentive consideration of this case it will appear that the question was, whether the power was apfendant, or in gross; the word "collateral" being, as

(p) 1 Salk. 239.

we

words "in gross."

we have seen, sometimes used as synonymous to the That this was done in the ease before us is proved by Mr. Justice Powell's argument, which is to the same effect as Hale's definition of a power in gross in the case of Edwards v. Slater. Mr. Justice Powell's opinion certainly was, that the power was a power in gross; and it seems so to have been considered by Mr. Peere Williams, who, in his admirable argument in that case (q), in answer to an objection that the power was destroyed, admitted that if the fine had been levied before the lease and release it would have operated as an extinguishment of the power. For he contended, that as the fine came after the release it came too late to do any hurt; and although he afterwards said, that the power seemed collateral, yet he did not rely upon that position, and cited no other authority for it than the old case of a power to executors to sell, which is clearly a power simply collateral. Parker, Chief Justice, in delivering the resolution of the court, said, that as to the first objection, that the power was extinguished by the fine, it might be answered, that if the power was well executed it was executed by the deed which was antecedent to the fine, and, therefore, it was impossible for the power to be extinguished by the fine (r). This appears to be a clear admission by the court, that the power might have been destroyed by fine; as otherwise the answer would have been, not that the fine came too late, but that the power could not have been extinguished by fine.

The late Mr. Powell, however, in his treatise (s) of

(9) See 1 P. Wms. 149. (r) 10 Mod. 72.

(s) Powell on Pow. p. 9. 33.

Powers,

Powers, has considered the power in this case as a power simply collateral. He states broadly, that the court were unanimously of opinion, that the wife had, under the will, an estate for life only, with a power of specification simply collateral.

If the learned reader should think that in Tomlinson v. Dighton the power was deemed a power in gross, that case alone must have considerable influence on the question under consideration, and, indeed, the very system of powers must be overturned to hold the power simply collateral. Should it be determined that a power of this nature cannot be barred by a fine, the intention of many settlements must inevitably be defeated. If an estate be limited to the children of the marriage, as the parent shall appoint by will, or to the children living at the parent's decease, as he shall appoint by deed or will, with a remainder, in either of these cases, to the children in fee; in both these cases no effectual settlement can be made upon, or by a child, until the parent's death. I have put the case of a remainder in fee to the children in default of appointment, because it has been contended, that although the power is simply collateral, yet, where the children are tenants in tail, a recovery suffered by them will over-reach and destroy the power of appointment. The case has been considered similar to that of Page and Hayward (t). To this opinion the author himself once inclined, but further consideration has induced him to consider the point very doubtful. For in Page v. Hayward, although the words expressed a condition, yet they were construed to be a limitation; and, therefore, it is the common case

(1) Page v. Hayward, Pig. App. Com. Rec. 176; 2 Salk. 570.

of

of a vested estate tail, with a limitation over in a certain event, in which case it is quite clear that a recovery suffered before the happening of the event will defeat the limitations over. It is like the case put by Hale, Chief Justice, in Benson v. Hodson (u), of a tenant in tail, with a limitation so long as such a tree shall stand; and he held that a common recovery would bar that limitation: But, in our case, the question would be, whether, during the life of the donee of the power, the estates to be created under the power would not be considered a charge upon the estate tail. Every purpose of such a power might under a contrary construction be sometimes defeated. Suppose a father tenant for life, with an exclusive power of appointment to his children, to sell his life estate, we have seen that he might still execute his power: but if the purchaser were to join with the children in suffering a recovery, the parent would, according to this doctrine, be deprived of the tight for which he stipulated by the settlement of selecting the child to inherit his estate. What would be the consequence of this doctrine if A were tenant for life, remainder to B for life, remainder to his children as he should appoint, remainder to his first and other sons in tail and upon a child coming of age, A, without the concurrence of B, were to join with the child in suffering a recovery? Would not B the father's power be destroyed? There is a wide difference between the donee of the power having ability by a recovery to destroy the power, and the remainder-man in tail having the same right. Again, it has been contended, that although the power cannot be extinguished, yet it may be re

(u) 1 Mod. 108; 2 Lev. 26; and see White v. West, Cro. Eliz. 792.

leased

leased to the remainder-man in exclusion of the objects of the power, as the donee is equally a trustee for them all. This opinion, however, assumes that the donee is a trustee of the power, a doctrine which it would be difficult to support; and even should it be proved, yet ulterior questious would arise. It might be questioned, whether, as he was a trustee, he could bind his discretion during his life; and whether he would not be guilty of a breach of trust in preferring the remainderman to the immediate objects of the power. But it really seems so clear upon principle as well as authority that the power is a power in gross, that it is not thought necessary to pursue our enquiries on points arising out of the doctrine that the power is simply collateral.

VI. It remains only to enquire in what cases a power is merged; although, perhaps, in strictness, merger in the sense it is here used is but a mode of extinguishing a power.

Where an estate was limited to such uses as A should appoint, remainder to himself in fee, great difference of opinion formerly prevailed whether the power was not merged in the fee: latterly, however, it was the universal opinion of conveyancers that the power was not merged.

In the late case of Maundrell v. Maundrell (x), it appeared, that before marriage the estate was limited to such uses as the husband should by any deed or will appoint; and in default of appointment to the use of himself for life, and after his decease to the use of his right heirs. After the marriage, the husband conveyed the estate to a purchaser, and it was contended that the pur