mankind. His wife and three other persons were appointed executors. The three other persons all died during the life-time of the wife, and no appointment was made or attempted to be made during the life-time of the executors. Held, that the executors were vested with a mere power of appointment with no special trust attached to it; that the executors, having died before the wife's decease, had no power to make the appointment; and that the conditions annexed by the testator having made the appointment impossible, the charity could not be carried out. Fontain v. Ravenal, 17 How., 369.

§ 39. Where a marriage settlement gave a woman the power of appointment to the use of such persons as she might from time to time appoint, during the coverture, by any writing or writings under her hand and seal, attested by three credible witnesses, and she executed a deed which recited that the parties had thereunto set their hands and seals, and which the witnesses attested as having been sealed and delivered, held to be a sufficient execution of the power, although the witnesses did not attest the fact of her signing it. Ladd v. Ladd, 8 How., 10.

§ 40. Where a marriage settlement recited that the woman was possessed of real and personal estate, which it was agreed should be settled to her sole and separate use, with power to dispose of the same by appointment or devise, and then directed that the trustee should permit her to have, receive, take, and enjoy all the interest, rents and profits of the property to her own use, or to that of such persons as she might from time to time appoint during the coverture, or to such persons as she, by her last will and testament, might devise or will the same to, and in default of such appointment or devise, then the estate and premises aforesaid to go to those who might be entitled thereto by legal distribution, held, that this deed enabled her to convey the whole fee, under the power, and not merely the annual interest, rents and profits. Ibid.

§ 41. A power of appointment by will among such of the children of R. and M., and in such proportions as M. may appoint, is an exclusive power. The right in the distributor to select necessarily implies the power to exclude. Hence, no distributee can say his share is illusory, the distributor not being bound to give him anything. Ingraham v. Meade, 3 Wall. Jr., 32.

§ 42. An appointment under a power is an attempt to appoint carried out, and if made by will the intent and its execution are to be sought for through the whole instrument, and if the will contains no expressed intent to exert the power, yet if it may reasonably be gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. Blake v. Hawkins, 8 Otto, 315.

§ 43. Power to make partition.- A testator in Mississippi constituted A. a trustee for his children, and gave him full power to dispose of the property devised in the will that might fall to them, and invest the proceeds in such manner as he might think proper for their benefit. The court, without assuming to lay down a general rule on the subject, followed the clearly expressed opinion of the supreme court of Mississippi on the precise point, to the effect that the trustee had power to make partition. Phelps v. Harris, 11 Otto, 370.

§ 44. A power to sell and exchange lands includes the power to make partition. Ibid. $45. Relief in equity.— A., having devised land to four trustees to sell and dispose of the same at private sale, on such terms as to them should seem meet, one of the trustees died, and another removed from the state. A sale of the land to B. was negotiated by the other two, with the assent of the one who was absent. B. paid the agreed consideration, and it was distributed in accordance with the terms of the will among the legatees, the two resident trustees making a conveyance of the lands to B., all of the parties concerned supposing at the time that such a conveyance was a valid execution of the power. The trustees were discharged by the order of the court, and B. subsequently filed a bill praying a specific performance of the contract of sale by the heirs at law (who were also legatees under the will) and their grantees. Held, (1) that if the non-execution of a power by trustees is occasioned by a misapprehension of the law, ignorance of the law must have been the sole occasion of the mistake, in order to defeat the interference of a court of equity, and if the case involves other facts which present a case for relief, equity is vigilant to lay hold of them in order to protect rights; (2) that when a power is coupled with a trust, which imposes upon the trustee the duty of executing it, equity will compel its execution in performance of the trust, when its aid is invoked by a person standing in a meritorious relation to the power; (3) that in this case all of the trustees having, in legal effect, negotiated the contract of sale, the purchaser, having performed the contract on his part, is entitled to the aid of the court to compel its completion on the part of the others. Long v. Soule,* 22 Int. Rev. Rec., 244; 9 Ch. Leg. N., 33.

§ 46. Although courts of equity may afford relief against the defective execution of a power executed by a party, they cannot afford relief against the defective execution of a power created by law. As where an administrator sells real estate of his intestate without having

previously given the proper bond with sureties approved by the judge of probate, the sale is void and equity cannot relieve. Bright v. Boyd, 1 Story, 478.

§ 47. Although a court of chancery will not aid a defective power, it will relieve from a defective execution of a power. Accordingly, where an executor, empowered to convey real estate of testator, acted, in executing the deed, through an attorney authorized to act by an instrument not under seal, held, to be a case of defective execution of a power from which equity would relieve. Piatt's Heirs v. McCollough's Heirs, 1 McL., 69.

§ 48. A Connecticut statute authorized the probate court, for reasonable cause, to order the sale of real estate belonging to a minor, on application of his guardian, and to empower him or some other person to make a conveyance of the same. A deed executed under the order of the court, in accordance with this statute, did not refer distinctly to the order of sale nor give its date, the only clause in the deed referring to the order of sale being an averment that the grantor was "authorized by an order of the court of probate for the district of S." to make the conveyance, nor did it show that the notice of sale had been given as required. Held, that there was a defective execution of a valid power, but that equity would interfere in favor of the grantee to aid such defective execution, there being no opposing equities. Segee v. Thomas, 3 Blatch., 11.

§ 49. Deed with power of sale.-Where by the terms of a deed conveying real estate in trust, to be sold for the benefit of the creditor of the grantor, the trustee is directed to sell the property conveyed by public auction, the trustee is bound to conform to this mode of sale, nor is it competent for him to establish any other, although by doing so he might in reality promote the interests of those for whom he acted. Greenleaf v. Queen, 1 Pet., 138. § 50. A temporary injunction will be granted against the sale of mortgaged premises under a power to sell in the conveyance, if the assignee of the mortgagor bought in ignorance of the existence of such a power and the mortgage containing it was not recorded. Platt v. McClure, 3 Woodb. & M., 151.

§ 51. The administrator has no estate in the land of his intestate, but a power to sell under the authority of the court. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it, but it is conferred by the court in a state of things prescribed by the law. The order of the court is a prerequisite, indispensable to the very existence of the power, and if the law which authorizes the court to make the order be repealed the power to sell can never come into existence. Bank of Hamilton v. Dudley, 2 Pet.,

492.

§ 52. Death; substituted trustee.- When a debtor has conveyed to a trustee real estate to be sold for the benefit of creditors, and the trustee dying before the conveyance of the property to a purchaser, another trustee is appointed by the court upon the application of the creditors to execute the trust, in a proceeding relative to the execution of the trust and the conveyance of the estate, it is necessary that the heirs at law of the first trustee shall be parties to the same, as the legal title did not pass to the substituted trustee, by the appointment, but remained in the legal heirs. Greenleaf v. Queen, 1 Pet., 138.

66

§ 53. Death of a trustee; power of survivor.- A testatrix by her will appointed A. and B. trustees and invested them with the whole of the legal estate, to hold the same in trust, to manage, invest and re-invest the same according to their best discretion," and pay over the income to the three children of the testatrix during their lives, and on their decease, the said A. and B., or their "successors, as trustees," were to appoint three or more persons, who should then be informed of the facts by the trustees, whereupon the said trust fund was to be disposed of and distributed, in accordance with the determination of the said persons, among permanently established and incorporated charitable institutions for the benefit of the poor. Held, that, the trustees being invested with the legal estate in order to enable them to discharge the various trusts declared, the power conferred upon them to appoint the donees of the power was a power coupled with an interest, and as such survived the death of one of them and could be executed by the survivor. Lorings v. Marsh, 6 Wall., 337.

§ 54. Courts of equity generally apply to the construction of powers given to executors the principle which applies the construction of other parts of the will to ascertain and carry into execution the intention of the testator. When the power is given to executors, to be executed in their official capacity as executors, and there are no words in the will warranting the conclusion that the testator intended, for safety or some other object, a joint execution of the power, as the office survives, the power ought also to be construed as surviving. And courts of equity will lend their aid to uphold the power, for the purpose of carrying into execution the intention of the testator and preventing the consequences that might result from an extinction of the power. Peter v. Beverly, 10 Pet., 532.

$55. To constitute a power so coupled with an interest in executors that it will survive, it is not necessary that they derive a personal benefit from the devise, for a trust will survive, though in no way beneficial to the trustee. It is the possession of the legal estate, or a right

in the subject over which the power is to be exercised, that makes the interest in question. And when an executor, guardian, or other trusteo, is invested with the rents and profits of land for the use of another, it is still an authority coupled with an interest and survives. Ibid.

§ 56. A power coupled with an interest does not expire with the death of the person creating it. Hunt v. Rousmaniere,* 2 Mason, 244.

$57. A naked power does not necessarily expire with the death of the person creating it. It may be such as can only be exercised after the death of such party, as a power to an executor to sell land to pay debts. Ibid.

§ 58. A naked power which expires with the death of the party creating it is such as requires the power to be executed in the name and as the act of the grantor and not of the grantee, as a power of attorney to execute an instrument or do other acts in the name of the grantor. Ibid.

§ 59. A power of attorney is not coupled with an instrument, though given as collateral security for a debt; and, although irrevocable by the donor during his life, expires upon his death. Ibid.

$ 60. Where an agreement is made to lend money, and to take collateral security on property, and by mistake a power of attorney only is taken, and the party dies, equity will relieve the creditor, and enforce the original agreement against the administrators, where the estate is insolvent. Ibid.

§ 61. A collateral power expires at the death or bankruptcy of the appointer. Aliter with a power complied with an interest. Hence, as a mortgage in Georgia is merely security for a debt, and passes no title, a power of sale in a mortgage given in that state is not a power coupled with an interest, but is merely a collateral power, and cannot be executed after the mortgagor has been adjudged a bankrupt. Lockett v. Hill, 1 Woods, 552.

§ 62. Where a power of sale given in a mortgage is limited to a specified time, and the mortgagor fails to execute it within that time, the power is gone forever. Ibid.

PRESCRIPTION.

See LIMITATIONS.

PRESIDENT.

See GOVERNMENT. Pardoning Power, see CRIMES.

PRESUMPTIONS.

See EVIDENCE.

PRESUMPTION OF PAYMENT.

See LIMITATIONS.

PRINCIPAL AND AGENT.

See AGENCY.

PRINCIPAL AND SURETY.

See BILLS AND NOTES; BONDS; CONTRACTS.

PRIORITY OF UNITED STATES.
See GOVERNMENT.

PRISONERS.

See CRIMES.

PRISONERS OF WAR.

See WAR.

PRIVATE CARRIERS.

See CARRIERS.

PRIVATEERS.

See WAR.

PRIVATE LAWS.

See CONSTITUTION AND LAWS.

SUMMARY

PRIVILEGE.

[See COURTS.]

·Judges, §§ 1, 3.- Judges, jurors, witnesses and suitors, § 2.- Mode of redress, § 4.- Parties, §§ 5-7.

§ 1. A judge of a state court is privileged from arrest or summons in civil causes while in actual attendance at his court, and while going to or returning from the same. Lyell v. Goodwin, SS 8-12.

§ 2. The privilege of a judge, juror, witness or suitor from arrest while in actual or constructive attendance upon court is not the privilege of the individual but of the public, and is granted to guard the administration of justice, and for this reason it is the duty of the courts to give this privilege their constant protection. Ibid.

§3. A judge, privileged from arrest, when about to set out on his circuit, is not liable to be served with process of summons. Ibid.

§ 4. The mode of redress for a person privileged froin arrest, when arrested, is by motion to the court from which the process issued. Ibid.

§ 5. Parties and witnesses in attendance in good faith before commissioners, whether with or without a writ of protection, are privileged from arrest or civil process during their attendance, and for a reasonable time in going and returning. Larned v. Griffin, §§ 13, 14.

§ 6. A party privileged from arrest on civil process may, if arrested, take advantage of his privilege by motion or by plea in abatement. The privilege secures absolute protection. Ibid. § 7. A party privileged from arrest who submits to an arrest, makes application to give bail, and enters into a bond to appear, does not thereby waive his privilege, but may assert the same notwithstanding, by motion or plea in abatement. Ibid.

[NOTES.-See §§ 15-31.]

LYELL v. GOODWIN.

(Circuit Court for Michigan: 4 McLean, 29-44. 1845.

Opinion by WILKINS, J.

STATEMENT OF FACTS.- A writ of summons having been issued out of this court, and served upon the defendant, the present motion is made by the defendant "That the writ, and the service thereof, and all proceedings thereon, be set aside, quashed and vacated." The defendant sets forth in his affidavit upon which this motion is founded, the following facts, which are not contested:

"That he is now, and for some time has been, one of the justices of the supreme court of this state. That a regular term of said court was, under the provisions of the laws of the state, commenced and held at the city of Detroit, on the first Tuesday of January last past, and which term did not expire until the 27th of March ensuing. That he, the defendant, as one of the justices of the said court, was in attendance upon the said court during and throughout the said term. That the court was in actual session on the 7th of March last, and was adjourned from that day until the 11th of the same month. That on the 20th day of the same month, the deputy marshal of the United States for this district came into the room assigned by the state authorities to the justices of the supreme court, and where the sessions of the said court are held, and while the defendant and two other justices of said court were actually engaged in the performance of judicial duties, and served upon the defendant a writ