JULY TERM, 1818.

#### Catharine H. Haslin, *v.*The Administrator and Heirs of Edward Kean, dec’d.

1 J>From Craven.

Powers. — A. conveyed land to B. upon trust, that he would at any time at the request of J. H. or at the request of C. H. wife of J. H. in case she should survive her husband, or in case J. H. and C, H. should die without making' such request, then at the request of the Executor or Administrator of the survivor of them, convey the land in fee-simple to such person qualified to hold lands in North-Carolina, as J. H. in his lifetime, or *C,*H. in case she should survive him, or the executor or administrator of the survivor, by writing' signed in the presence of one or more credible witnesses, or by last will and testament duly executed should direct, limit, or appoint.

J. H. afterwards reciting the conveyance made by A. to B. and staf ing an intention to go to South-America ; in execution of the pow„ er of appointment reserved to him, directed by deed, attested by ft witness, B. to sell at his discretion to any person qualified to hold real estate in North-Oarolina. J. H. and B. both died within a short time of each other, without haring done any thing further in relation to the power of appointment; and C. II. who survived her husband, directed the lands to be conveyed to herself by writing, e*acutad in the presence of two credible* witnesses.

*310*Held,*that the deed of J. H. to B. is not to be considered ail execution of the power,' so that on his death, no power remained in ills wife, surviving him. It is but amere substitution, by J. íí. ofB. for himself and until B. had sold the lands, as in his discretion he was authorised to do, the power of the wife remained undefeated.

This case coming on to be heard upon the bill, answers and exhibits, it appeared that Wilson Blount, by deed dated the 25th February, 1799, duly conveyed certain lands in the manner following, viz.

*“ State of North-Carolina, Craven County.*

*“*This indenture made the 25th February, 1799, bc-tvveenWilson Bloupt and Anne his wife, of the one part,and Edward Kean of the other part, witnessed), that for and in consideration of the sum of six thousand pounds, current money of the state aforesaid, to the said Wilson Blount and Anne his wife in hand paid, at or before the sealing and delivery of these presents, by the said Edward Kean, the receipt whereof they do hereby acknowledge, and thereof acquit the said Edward Kean, his lieirs, executors and administrators, have granted, bargained, sold, aliened, conveyed, enfeoffed and confirmed, and by these presents do grant, bargain, sell, alien, convey, enfeoff and confirm, unto him the said Edward Kean, his heirs and assigns for ever, ail that certain tract or parcel of latid, lying and being in Craven county, on the south side of Neuse river, being all that tract or parcel of land which was granted to John Lovick, by patent bearing date the 1st. November, 1719, which lies to the eastward of a branch which runs into Bachelor’s creek, above the road which leads from Newborn to Kemp’s ferry, and on which Colonel Wilson had a mill, beginning. &c. Also, one other certain tract, &c. &c. To have and to hold the said several tracts or parcels of land and premises hereby bargained and sold, or intended so to be unto the. said Edward Kean, bis heirs and ■assigns for ever, upon trust that the said Edward Kean, his executors, administrators or assigns, shall *311and will, at any time, át the request of John Haslin, Esquire, of the colony of Demarara, in South-America, or at the'request of Catherine H. Haslin, in case she should survive the said John Haslin, *Esquire;*or in case John and Catherine H. Haslin, his wife, should die without making such request, then at the request of the executors or administrators of the survivor of them, by good and sufficient deeds, such as the counsel of the said John and Catherine his wife, or the executors or administrators as aforesaid, shall advise, convey in fee-simple, to such person or persons qualified to acquire, hold, and transfer lands and other real estate, in the state of North-Carolina., as the said John Haslin during his life, or Catherine H. Haslin, after his death, in case she should survive, or the executors or administrators of the survivor of them, by writing signed in the presence of one or more credible witnesses, or by last will and testament duly executed, shall direct, limit or appoint. And the said Wilson Blount and Anne his wife do hereby covenant with the said Edward Kean, &c. to warrant .the said land unto the said Edward, his heirs, &c, from the claim of all manner of persons, &c. In witness whereof, &c.

WILSON BLOUNT. (Seal.)

ANNE BLOUNT. (Seal.)

*(i,i l ail li,oi red in the presence of*

DANXJBX. CaRTHEY.”

On the 5th of April following, John Haslin executed the following instrument in the presence of one credible witness, viz.

“ Whereas by a deed of bargain and sale bearing date 25th day of February 1799, between Wilson Blount and Anne his wife, of the one parts and Edward Kean of the other part, two several tracts of land containing about eight hundred acres, with the buildings and improvements thereon, lying in Craven County, on the south side of Neuse River and on Bachelor’s Creek, (all which will *312more fully appear by a reference to said deed, were conveyed to the said Edward Kean and his heirs, upon trust, to convey the same to such person or persons qualified to hold lands in the state of North-Carolina, as I, John Haslin, during my life, by any writing, signed in the presence of one or more credible witnesses, should appoint. And whereas, I, the said John Haslin, intend shortly to undertake a voyage to the colony of Demarara, in South America, and am apprehensive, of the dangers to which my life will be exposed in the said voyage: Now, therefore, know all men by these presents, that in consideration and in execution of the above power of appointment to be reserved to me, I, the said John Haslin, do hereby direct, limit and appoint, that the land and premises above recited and referred to, may and shall be conveyed, sold and aliened by the said Edward Kean, at his discretion, to any person or persons qualified to acquire^ hold and transfer lands and other real estate in thestate of North-Carolina. In witness whereof I have hereunto set my hand and seal this fifth day of April, 1799.

JOHN HASLIN. (Seal.)

*Signed, sealed and delivered in presence of*

Win. Wats ok.

John Haslin departed this life in March, 1804, and Edward Kean in August following, without either the said John Haslin or Edward Kean doing any other or further act' in relation to the execution of the power of appointment created by the said deed of Wilson Blount and Anne his wife. Catherine H. Haslin survived her husband, and by deed duly executed, subsequent to the death of her husband, in the presence of two credible witnesses, directed and appointed the lands in the said deed mentioned to Wilson Blount, to be conveyed to herself; and she produced a record, duly authenticated, of her naturalization in due form of law, in a court of record of the United States. *313Upon these facts, it was submitted to this court to decide, 1st. whether the deed of the 5th April, 1799, is of itself Such an execution of the power of appointment created by the deed of Wilson Blount and wife, that on the death of the said John Haslin, no power to appoint remained in his wife, who survived him. — 2nd, Whether it bo competent for the Defendant to deny the ability of the Complainant to hold land, notwithstanding the record of naturalization, by adducing- proof that she had not such residence in the United States as entitled her to be naturalized *}*and that the facts set forth in the affidavit, upon which she was permitted to be naturalized, were not true, —3rd. Whether it be competent for either of the parties, to give in evidence any other deed executed by John Has-lin in his life time, or his last will and testament, having relation to the deed of the 5th April, 1799, to prove the intention of the said John in said deed.

Seawexi, Judge,

delivered the opinion of the Court;

The main question in this case is, whether John Haslin, by the deed which he executed 1o Kean, completely and in due form executed his power. If he did, there is an end to the Wife’s power ; if he did not, she was entitled to appoint. — The present controversy is betw'een volun-. teers, and the wife is entitled, unless there has been not only an *intention*to appoint, but an *actual*appointment, and that made in the precise form required by the power. This position is proved by many authorities *(a.)***It is then necessary to enquire in what manner Blount, the donor of this power, declared it should be exercised, so as to defeat the right of the wife? fie required that it should, be *hj deed,*executed in the presence of a witness or witnesses, and that by this deed, Haslin the husband, should *limit and appoint to ‘whom Kean should convey,*provi-*314<]ed such person should be qualified to take, hold and transfer lands in North-Carolina — Has the husband ap- . * *pointed,*and *in the manner*prescribed? Docs his deed to Kean appoint *to whom*Kean shall convey ? No *;*it au-thorises Kean to convey to whom *he*pleases in *his discretion.*This is a confidence which Blount did not'confer on Kean, nor did he vest Haslin with a power to confer it. However, it is said, that Haslin took a beneficial interest under the power $ for as lie might appoint whom he pleased, he could consequently have appointed himself. That will depend upon a fact which docs not appear in tin's case, namely, whether lie was qualified to take, hold and transfer lands in North-Carolina. if he were qualified, then he has a beneficial interest *•,*but it is indispensible for those who claim the execution of a power, to shew every circumstance necessary therefor.

But assuming it as a fact, that the husband was qualified, and could appoint himself, and that having a beneficial interest, he could delegate this power, has Kean exercised it ? — He has not. — But then it is said, that having tiie legal estate, with Haslin’s power, he might appoint himself. Uoes Haslin’s deed say so ? It only authorises him to bargain, sell, alien and convey, to any person in his discretion, who should be qualified to take, hold, and transfer lands in North-Carolina. In substance, the deed is, that Haslin authorises him to sell to any person, being as the deed declares, about to take a voyage to South-America, when as the purchaser was to be looked for, it was not in the nature of things, that Haslin could be present. And though Haslin declares in the deed, that'he transfers that authority *in execution of the power,*it is only by *reference*to his power, and is tantamount to saying, *“*in virtue of his *power.”*— It *seems*impossible to collect from this deed, an intention in Haslin to effect any other object than a bare substitution ; there is nothing in it which even implies, that lie liad surrendered or released to Kean the right of appointing, nor any thing which *315prevented liaslin from revoking it tbe next moment, Tbe substitute must then necessarily stand .in tbe shoes of his principal *;*and until be had bargained and sold the lands, as he was entrusted in bis discretion to do, the, power of the wife remained undefeated. To consider the deed asan execution of the power, and consequently as a destruction of the power limited to the wife,'could only be by a far-fetched presumption, w hich we are not authori-sed to make in favor of a stranger and a pure volunteer j especially when by so doing we are defeating tbe w'ife, who was an object of the donor’s bounty *wesay, donor's*bounty, for if it was tbe husband’s bounty, she has still a stronger claim. And according to the view' of tliocasc which w'e have taken, it seems clear, that the release or other act of tbe husband, since tbe appointment either by himself or the substitute, (if he had a right to delegate his power,) could defeat the power ofthe wife, though he might expressly have declared it in extinction of the wife’s power. In favor of purchasers, courts of equity on account of the consideration, will effectuate appointments wherever defective, and will consider as done, what the parties have agreed to do. But it comes to the same thing at last, and is an appointment in equity.

The result of the whole seems to be, that by this deed, if it operated at all, the power of the wife was placed at the mercy of Kean, instead of the husband ,* and that thereby he acquired the powmr and nothing, more, of defeating by his own act, the claim of the wife, which he could not before : *but that*in both cases it required the exercise of this power. Tbe consequence is, that the wife having become qualified to take, hold and transfer lands in North-Carolina, and having appointed herself, the heirs of Kean, who hold the legal estate, must convey to her. ' ■■

Many points were made in this case, upon the difference in powers, and the effect of a release ; but from the view we have taken of it, this has become unnecessary to be *316examined, considering the manifest intention of the deed to be only a substitution of power. Rut if it were neccs-sary, we should say, that those who claim an execution of the power, must shew *it;*they must, of course, shew themselves qualified to be appointed. Aliens can take j so they can transfer, but they cannot hold lands : that therefore it does not appear the husband had any beneficial interest : if he had not, that it was then a mere personal confidence, which could not be delegated. And as to a release, it would have no effect, if the husband had no interest to give up. But if he had an interest, as the power of the wife was limited to her by the original donor, to be exercised in default of the appointment of the liusband, both being strangers and upon an equal footing, the husband by release, could only relinquish to the *legal*owner, what he bad j and that the only effect would be to lop off one power, in like manner as if it was spent by deatl). For Blount, who created both powers, and who as the case appears, is to be considered the benefactor of both, has appointed Kean to hold the estate subject to the appointment of the wife, in default of any appointment by the husband. And as the release could only destroy what the husband had, as between volunteers, it gave Kean no ground in equity to oppose the wife’s claim *;*for that must be founded cither in regular title, according to the prescribed form, or upon moral obligation, which, in equity dispenses with form. So long therefore as Kean' continued to hold the lands, without any appointment being made by the husband, the power of the wife remained alive.—

It is admitted, that the execution of a power limited to a stranger, is to *ha fairly*construed *;*and this is .what the bookg mean, when they use the phrase, “ liberally construed and that it is to be supported, if there appear an intention, and the manner employed is within the fair and liberal exposition of that prescribed by the donor. And had the husband dearly evinced such intention, by *317limiting in this (Iced, that Kean should have, bold and *enjoy*the. estate, or words to that effect, such appointment would have been sufficiently formal, and enabled him to resist the w ife’s power. But. according to the clear intent of the parties, he stood in no other condition, than one with a general power of attorney to sell the lands to any person in his discretion, except such as could not hold them under the laws of .North-Caro lina.

(a.)

 Dormer vs. Thurland, 2 P. Wms. 506. Darlington vs. Pulteney, Cowp. 260. Powell on Powers, 150, 163, and the cases there ref’ered to.