II. When a bare power was given to two or more executors, words might be used, which showed an intention that the power should be annexed to the office of executor; and, in such a case, after the death of any one of them, the survivor or survivors were capable of exercising the power (t). When therefore, a man by will gave a power to his executors, designating them as such without naming them (u), or designating them "his executors hereinafter named" (x), it was held that the power was annexed to the office of executor and might be exercised even by a sole surviving executor. Supposing that a man gave by will a mere power to two or more persons, designating them by their names, without any reference to the office of executor, and in a subsequent part of the will appointed the same persons executors: it would be an exceedingly nice question, to be determined by a consideration of the purposes for which the power was given, whether an intention were shown to annex the power to the office of executor, sufficient to take the case out of the general rule (y).

Power without an interest.

Survivorship of powers given to trustees.

Survivorship of bare powers.

General rule.

Powers given to executors.

(q) Townsend v. Wilson, 1 B. & A. 608.

(r) Stat. 56 & 57 Vict. c. 53, s. 22, apparently extended to executors by s. 50, and replacing 44 & 45 Vict. c. 41, s. 38.

(s) Co. Litt. 112b, 113a; Sug. Pow. 126, 128; Montefiore v. Brown, 7 H. L. 0. 241.

(t) Brassey v. Chalmers, 16 Beav.

233; 4 De G. M. & G. 528; Sug. Pow. 128; Crawford v. Forshaw, 1891, 2 Ch. 261.

(u) Jenk. Cent. 43, case 83.

(x) Brassey v. Chalmers, 4 De G. M. & G. 528, following Houell v. Barnes,Cro.Car. 382; Crawford v. Forshaw, 1891, 2 Ch. 261; contra, Lock v. Loggin, 1 And. 145.

III. Powers of executors, which arose by implication of law, were annexed to the office, and might be exercised after the death of any executor, by the surviving executors for the time being or by a sole surviving executor (z).

IV. If a bare power were given to two or more trustees, and the words used in the instrument creating the trust showed that the power was intended to be annexed to the office of trustee and not to be conferred upon the donees as individuals, it appears that, after the death of one, the survivor or survivors could execute the power (a). But if no such intention appeared, the case fell within the general rule (b).

V. It is said that, if a power be given to three or more persons, by a class designation and not by their names, for instance, "to my trustees," "to my sons," after the death of any of them, the authority will survive so long as the plural number remains (c). This is a doubtful proposition (d). It is submitted that if a man gave a power to his "trustees" without designating them by name, the case would have fallen within the preceding proposition (e).

Powers arising by implication of law.

Powers given to trustees.

Powers given to a class.

(y) See Sug. Pow. 127, 128;

Jenk. Cent. 43 case 83: Hargrave's note (2) to Co. Litt, 113a;

Crawford v. Forshaw, 1891, 2 Ch.

261, 266-269

(z) Dyer. 37lb, case 3; Forbes v. Peacock, 11 M. & W. 630, 639;

Sug. Pow. 128

(a) Romilly, M. R., Byam v.

Byam, 19 Beav. 58, in which case the decision was that a power given to " the undersigned trus-tees could, under the old law, be exercised by trustees appointed by the Court; see above, p. 273, n. (i): Re Smith, 1904, 1 Ch. 1

(b) Townsend v. Wilson, l B &

A. 608; see Hall v Dewes, Jac.

189; Re Bacon, 1907, 1 Ch. 475, 478.

Under the Conveyancing Act of 1881 (f), a person to whom any power, whether coupled with an interest or not, is given may by deed release or contract not to exercise the power. And under the Conveyancing Act, 1882 (g), any power, whether coupled with an interest or not, may be disclaimed by deed, after which the disclaiming party shall not be capable of exercising or joining in the exercise of the power; but the power may be exercised by the other or others, or the survivors or survivor of the others, of the persons to whom the power was given, unless the contrary were expressed in the instrument creating the power. With respect to powers coupled with an interest, these enactments did no more than declare the previous law (h.). But a power simply collateral could not formerly be extinguished or suspended by release or any other means (i).

Release and disclaimer of powers.

(c) Sug. Pow. 128; Lee v. Vin-cent, Cro. Eliz. 26: Co. Litt. 113a.

(d) See Sykes v. Sheard, C. A., 2 De G. J. & S. 6, disapproved by Malins, V.-C, Jefferys v. Marshall, 19 W. R. 95; Farwell on Powers, 456, 2nd ed.

(e) See Re Smith, 1904, 1 Ch. 139

(f) Stat. 44 & 45 Vict. c. 41, 8. 52 (1), applying (by sub-s. 2) to powers created either before or after the commencement of the Act.

(g) Stat. 45 & 46 Vict. c. 39, s. 6 (1, 2), applying (by sub-s. 3) to powers created either before or after the commencement of the Act.

(h) The donee of any power other than a power simply collateral might always release or contract not to exercise it: Sug. Pew. 82 sq.; West v. Berney, 1 R. & M. 431; Smith v. Death, 5 Madd. 371; Horner v. Swann, T. & R. 430; Hurst v. Hurst, 16 Beav. 372; Isaac v. Hughes, L. R. 9 Eq. 191. And if a power coupled with an estate or interest were given to any person, he might disclaim the estate and thus render himself incapable of exercising the power: Sug. Pow. 50; Hawkins v. Kemp, 3 East. 410,437; Niclosonv. Wordsworth, 2 Sw. 365, 369, 370; Adams v. Taunton, 5 Madd. 435.

(i) Sug. Pow. 49, 893; West v. Berney, 1 R. & M. 431, 434. A power simply collateral is a And it appears that the disclaimer of a bare power was formerly ineffectual (k). And where a bare power had been given to two or more persons and one of them had affected to disclaim the power, the power could not, as a rule, be well exercised by the other or others of them (l). But in the case of a power given by will to the testator's executors to sell his lands, if any of the executors refused to take administration of the will, the accepting executors or executor might by statute(m) exercise the power alone. And where a power was annexed to the office of executor, either by implication of law or by the testator's direction (n), an executor who renounced probate could not exercise the power (o); but the executors or executor who proved might well do so (p). If trustees were invested with any power which it would be their duty to exercise, they could not release or contract not to exercise the same or otherwise divest themselves of their authority (q); and the above enactments have not altered the law in this respect (r).