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of powers appendant, and will happen where the exercise of the power would be in derogation of some previous estate or interest, created under the power. This is well illustrated by a leading case in which the facts were as follows: Lord Bolingbroke was tenant for life of certain lands, with a power, if it should be desired to sell them, to revoke the uses to which they were held, and appoint new uses in favor of a purchaser. Lord Bolingbroke, in consideration of £3,000, granted an annuity to last for his lifetime, and, in order to secure its payment, demised the lands to the annuitant for a term which was to expire on his (Lord Bolingbroke's) death. Afterwards, he purported to revoke the uses to which the lands were held, joined in a sale of them, and appointed them to new uses in favor of the purchaser. The latter claimed to hold them free from the lease to the annuitant, which he could, of course, do if Lord Boling broke's revocation of the use to himself for life was effectual. But the Court of Chancery held that the power of revocation was suspended, so far as regarded the estate of the tenant for life, since otherwise he would have been able, by the exercise of his power, to commit a gross fraud in taking away the security for the annuity.2
The extinguishment of powers not simply collateral Extinguishmay occur in the case of either those which are ap- powers. pendant, or those which are in gross. It occurs with powers of the first kind where the donee of the power parts with all his interest in the property subject to his power. For the very definition of an appendant power points to this. Suppose, for instance, that a tenant for life has power to make leases to take effect
1 Goodright v. Cator, 2 Doug. 477.
2 And see Bringloe v. Goodson, 4 Bing. N. C. 726; Hurst v. Hurst, 16 Beav. 372
in possession. If he assigns the whole of his interest to another person, it is clear that any subsequent lease of that property made by him could not take effect out of his interest in the property, since he no longer has any. His power of making leases is, therefore, extinguished. But the rule will not apply where he does not entirely part with his interest in the property; as if he conveys it to trustees, but on trust to hold it for himself, subject to payments, out of the profits of it, to other people.1
Cases in which a power in gross is extinguished do not often happen. For since no estates created by the donee of such a power can affect his own interest, he cannot, by the exercise of the power, prejudice any person to whom he may have transferred his interest; such a transfer cannot, therefore, extinguish his power. But the power is extinguished where he has, subsequently to his acquisition of the power, done some act which would be defeated by any future exercise of the power. Thus, where a tenant for life who had a power of charging the land subject to the power with the payment of a sum of money to other persons, joined in revoking the settlement and making a new one, whereby he was made tenant for life of the property but without a power of charging it; it was held that this power had been extinguished by his joining in the new settlement.2
Both powers appendant and those in gross may be alienated. Where the power is one which the donee may exercise for his own benefit he has, in fact, something reserved to him out of the property subject to his power, and this he may alienate at pleasure, by “ releasing” his power. If, for example, having a power of charging land with the payment of a sum of money to himself, he joins in a conveyance of the land clear of the charge, this will operate as a release of his power. And a power in gross may also be released, although the exercise of such a power cannot confer any benefit on the donee of the power.2 But this is subject to the rule that the release must not be made with the object of obtaining for the donee of the power some benefit which he could not get otherwise. For, in such a case, equity will refuse to give present effect to the release, so far as it would operate in favor of the donee.3
Alienation of powers.
1 Ren v. Bulkeley, 1 Doug. 291 ; Long v. Rankin, Sug. Pow. 895. 2 Savile v. Blacket, 1 P. Wms. 777.
Lastly, a power, the exercise of which can confer Involuntary any benefit on the donee of the power, may be the
alienation. subject of involuntary alienation; it being provided by the Bankruptcy Act 1869,4 that5 the property Bankruptcy of any bankrupt divisible amongst his creditors shall Act 1869. include the capacity to exercise, and to take proceedings for exercising, all such powers in, or over, or in respect of property, as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy, or during its continuance, except the right of nomination to a vacant ecclesiastical benefice.
1 See West v. Berney, 1 Russ. & My. 431, 434.
2 Smith v. Death, 5 Madd. 371; Horner v. Swann, Turn. & Russ. 430.
3 Cunynghame v. Thurlow, 1 Russ. & My. 436 n. 4 32 & 33 Vict. c. 71.
6 S. 16.
OF ESTATES IN JOINT-TENANCY, TENANCY IN COMMON,
HITHERTO we have considered estates in land as be-
Joint-tenancy. The first of these which we will notice is that of an
estate being held in Joint-Tenancy, or by two or more
A joint-tenancy may exist in any kind of estate in land. In order to constitute it, there must be, amongst the tenants, unity of interest, unity of title, unity of time, and unity of possession." In other words, the tenants must have the same quantity of interest (for instance, one cannot hold for life, and another in fee-simple); their estates must be created by the same act, and must commence simultaneously, (except under circumstances to be presently noticed); and each must have entire possession of the land, concurrently with the others; thus constituting one owner and one estate. The exception above referred to occurs where joint-tenants take by way of use, or under a will. Thus, if there be a gift, made either by deed or by will, to the use of the children of
1 2 Bl. Com. 180.
A, or a gift by will to the children of A, those children of A who may be born after the deed or will has come into operation will take, each successively on birth, an estate in joint-tenancy with the others. 1
An estate may be granted to be held in joint- Creation of a
tenancy by any person capable of creating that estate. joint-tenancy. Joint-tenancy cannot arise by operation of law, but may be conferred by parol, when the estate in question can be created by parol; otherwise a deed or will is requisite.
Such an estate occurs where lands are conveyed, Form of or given, to two, or more, persons without any modi- words. fying words. Thus, a grant to A and B, or to A and B and their heirs, will confer upon A and B an estate in joint-tenancy, for life, or in fee-simple, as the case may be. And if the gift is made by deed, it would seem to be doubtful whether the addition of the word “equally," or of the words “equally to be divided between them," or such like, would operate to prevent A and B from taking as joint-tenants. In a will, however, the apparent intention of the donor would, in such a case, be taken into consideration, and each donee would take a separate undivided share.
The incidents of an estate by joint-tenancy will, to Incidents of a a great extent, depend upon the nature of the estate
joint-tenancy. thus held. But since all the tenants constitute in law Charges or but a single owner, charges or grants made by any grants.
. one of them on, or out of, the joint estate will cease with his death, and do not bind the others. For the
1 Shelley's Case, note (Q), 1 Rep. 100b; Kenworthy Ward, 11 Ha. 196.
2 Sug. Pow. 441, but see 1 Wat. Cop. 138, note (2); Fisher v. Wigg, 1 P. Wms. 14.