POWER. This is either inherent or derivative. The former is the right, ability, or faculty of doing something, without receiving that right, ability, or faculty from another. The people have the power to establish a form of govemment, or to change one already established. A father has the legal power to chastise his son; a master, his apprentice.
2. Derivative power, which is usually known, by the technical name of power, is an authority by which one person enables another to do an act for him. Powers of this kind were well known to the common law, and were divided into two sorts: naked powers or bare authorities, and powers coupled with an interest. There is a material difference between them. In the case of the former, if it be exceeded in the act done, it is entirely void; in the latter it is good for so much as is within the power, and void for the rest only.
3. Powers derived from, the doctrine of uses may be defined to be an authority, enabling a person, through the medium of the statute of uses, to dispose of an interest, vested either in himself or another person.
4. The New York Revised Statute's define a power to be an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform.
5. They are powers of revocation and appointment which are frequently inserted in conveyances which owe their effect to the statute of uses; when executed, the uses originally declared cease, and new uses immediately arise to the persons named in the appointment, to which uses the statute transfers the legal estate and possession.
6. Powers being found to be much more convenient than conditions, were generally introduced into family settlements. Although several of these powers are not usually called powers of revocation, such as powers of jointuring, leasing, and charging settled estates with the payment of money, yet all these are powers of revocation, for they operate as revocations, pro tanto, of the preceding estates. Powers of revocation and appointment may be reserved either to-the original owners of the land or to strangers: hence the general division of powers into those which relate to the land, and those which are collateral to it.
7. Powers relating to the land are those given to some person having an interest in the land over which they are to be exercised. These again are subdivided into powers appendant and in gross.
8. A power appendant is where a person has an estate in land, with a power of revocation and appointment, the execution of which falls within the compass of his estate; as, where a tenant for life has a power of making leases in possession.
9. A power in gross is where a person has an estate in the land, with a power of appointment, the execution of which falls outof the compass of his estate, but, notwithstanding, is annexed in privity to it, and takes effect in the appointee, out of an interest vested in the appointer; for instance, where a tenant for life has a power of creating an estate, to commence after the determination of his own, such as to settle a jointure on his wife, or to create a term of years to commence after his death, these are called powers in gross, because the estate of the person to whom they are given, will not be affected by the execution of them.
10. Powers collateral, are those which are given to mere strangers, who have no interest in the laud: powers of sale and exchange given to trustees in a marriage settlement are of this kind. Vide, generally, Powell on Powers, assim; Sugden on Powers, passim; Cruise, Dig. tit. 32, ch.
13; Vin. Ab. h. t.; C om. Dig. Poiar; 1 Supp. to Ves. jr. 40, 92, 201, 307; 2 Id. 166, 200; 1 Vern. by Raithby, 406; 3 Stark. Ev. 1199; 4 Kent, Com. 309; 2 Lilly's Ab. 339; Whart. Dig. h. t. See 1 Story, Eq. Jur. 169, as to the execution of a power, and when equity will supply the defect of execution.
11. This classification of powers is admitted to be important only with reference to the ability of the donee to suspend, extinguish or merge the power. The general rule is that a power shall not be exercised in derogation of a prior grant by the appointer. But this whole division of powers has been condemned' as too artificial and arbitrary.
12. Powell divides powers into general and particular. powers. General powers are those to be exercised in favor of any person whom the appointer chooses. Particular powers are those which are to be exercised in favor of specific objects. 4 Kent, Com. 311, Vide, Bouv. Inst. Index, h. t.; Mediate powers; Primary powers.