A resignation will not be accepted without good cause shown for it. If the trustees have accepted the trusts, and especially if they have accepted a legacy given upon condition of their executing the trust, the court will not discharge them, on their own motion, unless good and sufficient reasons be shown. (Craig v. Craig, 3 Barb. Ch. 76.)

The acceptance of a resignation of a trustee, and his removal from office by the court, depend on different principles. The first does not imply any delinquency in the trustee; but the last does. This delinquency may have reference to the character or habits of the trustee personally, or his conduct towards the estate. If he refuses to execute a trust for the benefit of creditors, it is a good ground to remove him on the application of the latter. (Matter of the Mechanics' Bank, 2 Barb. 446.) Or it would be proper to order him to do the act imposed upon him by his duty.

A trust estate, it has been already said, will cease when the purposes for which it was created have ceased. (1 R. S. 730, § 67. Sterriker v. Dickinson, 9 Barb. 516.)

It will cease when the legal and equitable estates in land, being co-extensive, unite in the same person. The former, in such a case, is extinguished in the latter. (Nicholson v. Halsey, 1 John. Ch. 417.) There are some exceptions to the rule. Both the rule and the exceptions more frequently are exemplified in the case of mortgage securities than in any other cases. If the situation of the estate, or the interest of the mortgagee, requires that the lien of the legal estate should be kept distinct, or if the mortgagee by reason of some disability is unable to elect, or if there be a decisive intention of the mortgagee to keep them separate, a court of equity will prevent a merger, and preserve the estates distinct. (James v. Johnson, 6 John. Ch. 417. James v. Mowry, 2 Cowen, 246. Russell v. Austin, 1 Paige, 192. Cleft v. White, 2 Kern. 519, reversing previous report, 15 Barb. 70.)

At common law there was no stated or fixed period as to the bringing of actions. Limitations are created by, and derive their authority from, the statute. (The People v. Gilbert, 18 John. 228. Wilcox v. Fitch, 20 id. 472.) Until the revision of 1830, (2 R. S. 395, § 28,) the statute of limitations did not affect the government, nor was there any presumption of payment of demands due to the people, in analogy to the statute. (Fairbanks v. Wood, 17 Wendell, 329.)

Formerly there was no legal bar to an action for a legacy, yet the courts in regard to very stale demands, adopted the provisions of the statute, in the exercise of their discretion. (Arden v. Arden, 1 John. Ch. 313.) No lapse of time is a bar to a direct trust, as between trustee and cestui que trust. (Decouche v. Savetier, 3 John Ch. 190. Goodrich v. Pendleton, Id. 384, 390.) In Souzer v. De Meyer, (2 Paige, 577,) decided in 1831, Chancellor Walworth held that the statute of limitations was a bar to a legacy, unless it was charged on land. He put it upon the ground that courts of law have concurrent jurisdiction with courts of equity to recover such legacies. When there is a concurrent remedy at law, the court thought that time was as absolute a bar to discovery or relief in equity, as it would be in a suit at law. (Humbert v. Trinity Church, 24 Wend. 587, affirmed 7 Paige, 195.)

Since the foregoing decisions were made, the court of chancery has been abolished, and the jurisdiction in matters of equity vested in the same tribunal which takes the cognizance of actions at law. The reasons on which some of those cases are based now fail altogether. In addition to this, the statute of limitations has undergone great changes. It is now incorporated in the code of procedure. In an action for relief, on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery, the action must now be brought within six years, but the time is computed from the discovery, by the aggrieved party, of the facts constituting the fraud. (Code, § 91, sub. 6.) But there seems to be no limitation in the code, to a direct trust, as between trustee and cestui que trust; thus leaving that class of cases to the doctrine as it existed at common law.

CHAPTER II.

OF POWERS.

Powers are of two sorts: first, such as owe their origin to the statute of uses, and which are now defined and regulated by the revised statutes; and secondly, such as existed at common law, being simply powers of attorney, to convey lands in the name and for the benefit of the owner. We shall treat of both these kinds of power, in

their order.

SECTION I

Of Powers under the Statute.

The revisers, in their note to the article on this subject, remark that the law of powers is the most intricate labyrinth in our jurisprudence. To make the doctrine familiar to the capacity of men of common understanding, they began by proposing to abolish powers as they existed at that time, and prior and after that time, (1830,) they proposed that the creation, construction and execution of powers should be governed by the provisions of that article. It was so enacted by the legislature. (1 R. S. 732, §§ 93, 94.)

By the rules of the common law a fee simple could not be limited upon or after a fee, nor could a condition be reserved to a stranger. These difficulties were overcome by means of the statute of uses. We have seen that the law with respect to the first has been changed in this state by the act relative to the creation and division of estates. (1 R. S. 723, § 16.) Hence, independently of the doctrine of powers, a contingent remainder in fee may be created on a prior remainder in fee under certain restrictions. And with respect to the second, and also with respect to a power of revocation, the doctrine of powers has afforded the requisite relief.

The statute of New York is a brief epitome of the law of powers, as gathered from the systematic treatises on the subject, and the adjudged cases. No two authors entirely agree as to the division of the subject, nor in all their explanations. The legislature adopted that line of discussion of the matter, which seemed the most simple and congenial to our institutions. The simplicity of our modes of conveyance, and our habits and ways of business, have hitherto afforded few occasions for the application of the rules we are called upon to consider.

Writers have not been entirely agreed in their definition of a power. It is defined by one to be an authority retained by, or conferred upon a person to deal with property, so as to affect, more or less, interests or estates therein possessed, either by himself or others, albeit it be underived therefrom. (Wharton's Conveyancing, p. 419.) Mr. Crabbe, in his treatise on the law of real property, says: a power, in the legal sense of the word, is an authority which enables one

person to do an act for another, and it is to be distinguished both from a trust and an interest. Powers, says he, are never imperative; they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party intrusted. Lord Eldon, in Brown v. Higgs, (8 Ves. 570,) in speaking of the distinction between trusts and powers, says: It is perfectly clear that, where there is a mere power of disposing, and that power is not executed, a court of equity cannot execute it. It is equally clear that, wherever a trust is created, and the execution of that trust fails, by the death of the trustee, or by accident, a court of equity will execute the trust. We have seen in the foregoing chapter that the same rule obtains here as to trusts. Equity never permits a trust to fail for the want of

a trustee.

The definition of a power given by the revised statutes is substantially the same. It is defined 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 receiving such power might himself lawfully perform. (1 R. S. 732, § 74.)

The distinction between a trust and a power was exemplified in the case of Tucker v. Tucker, (1 Seld. 410.) The question arose under a will, the seventh clause of which was in these words: "I do authorize and empower my executors to exchange, sell and convey to and with adjoining owners or others, such gores, strips, or pieces of land as they may deem advantageous to my estate, by straightening and equalizing boundary lines, and to execute, deliver and receive sufficient deeds therefor." The question was whether the foregoing clause created a trust in the executors or was merely a power. If a trust, from its connection with other parts of the will it was shown to be void, in consequence of suspending the power of alienation for a longer time than the statute allows. It would be a trust, if it was necessary for the executors to take an estate by implication, in the lands of the testator, in order to effectuate his intention. But the court held that all the duties enjoined upon the executors by the will, in regard to the lands, could be discharged under the power, and that the clause in question merely created such power. It fell within the definition just given. The authority conferred upon the executors by the testator was to do some acts in relation to the lands, which the owner granting the power might himself lawfully do. (1 R. S. 732, § 74.)

In Brewster v. Striker, (2 Comst. 20,) the provisions of the will not only showed, in the opinion of the court, that the testator intended to give the entire and exclusive possession, charge and management of the real estate to the executors; but by the clause that "the said real estate shall not, at any time hereafter, be sold or aliened, but by my said executors and the survivor of them," also intended to withhold from the grandchildren the power to sell, and thus prevent the alienation of the estate, or any incumbrance thereon, until the inheritance should finally vest in fee simple absolute, under the limitations in the will;" and this could not be accomplished unless the title vested in the executors. There was therefore a necessity for holding that a trust term vested in the executors by implication, and by thus holding the intention of the testator was effectual. This, then, was a trust and not a power.

So also, in Dempsey v. Tyler, (3 Duer, 74,) decided in 1854, it was held that during coverture the wife possesses no power to convey by deed to her husband, and is destitute of any testamentary capacity. Such power or capacity cannot be created over lands belonging to herself in fee, by virtue of any agreement made during coverture between herself and her husband. It can only be created or preserved, by an ante-nuptial agreement. Having power to grant or devise, while a feme covert, she may by such agreement reserve a power, by the due execution of which she may make a valid will in favor of her husband. The instruments under which the case arose, were all executed prior to 1848, and it was not supposed that the laws of 1848 and 1849, relative to the estates of married women, affected it in the least. (L. of 1848, p. 307. L. of 1849, p. 528.)

By the last mentioned statute, in connection with the act of 1860, chapter 90, a married woman has the same control and power of disposition during coverture over her estate real and personal, as if she was a feme sole.

It is quite obvious that no person is capable of granting a power, who is not at the same time capable of aliening some interest in the lands to which the power relates. (1 R. S. 732, § 75.) This is a truism, the force of which is not increased by a legislative enactment. That a party must have something himself, before he can bestow it upon others, is quite manifest. (Selden v. Vermilyea, 3 Comst. 536.) Having shown the difference between a power and a trust, it remains to point out the distinction between naked powers, and powers coupled with an interest. A naked power does not, at common