then the fine was levied: and, by another deed made at full age, he declared it to be to other uses. The court held, the laft deed fhould be that which should lead the uses.

§ 37. It is also faid, that if a person who is non compos mentis, fuch as an idiot or lunatic, is permitted to levy a fine, his declaration of the ufes of it will be good. But, in cafes of this kind, as well as those of infants, the Court of Chancery will interfere.

§ 38. The right of declaring the uses of a fine or recovery, is precifely co-extenfive with the quantity and nature of the eftate or interest which each of the parties has in the lands. If, therefore, a tenant for life, and the perfon having the remainder or reversion, join in levying a fine or fuffering a recovery, they may declare the uses according to their respective eftates in the land.

§ 39. So, if there be two joint-tenants, who join in levying a fine or fuffering a recovery, and one declares the use in one manner, and the other in another manner: each of them fhall be good for their refpective parts; because the declaration of the ufe fhall be directed and governed according to their several estates and interests.

S 40. It was held, in a modern cafe, that where a fine was levied by tenant for life, remainder-man in tail, and reverfioner in fee, a declaration of uses by the tenant for life, and remainder-man in tail, did not bind the reverfioner.

$ 41. A ufe

S 41. A ufe may be declared on a release as well as on a fine or recovery; and it has been the conftant practice, for this laft century, to make all fettlements by a bargain and fale for a year, and a release to ufes in fuch case, the ufes arise out of the feifin of the releafees, and the uses of the release are usually declared in the fame deed by which the lands are released.

§ 42. It should, however, be observed, that no person can declare the uses of a release, who is not capable of transferring lands by that mode of conveyance; and, therefore, a declaration of the ufes of a release by a married woman, or an infant, would be void.

Ufes may be
Leafe and
Release,
Cafes and

declared on a

Opinions,
v. 2. p. 289.

TITLE XXXII.

DEED.

Vide Tit. 11. ch. 4. f. 4, 5, 6, 7.

Nature of. IT has been stated in a former Title, that powers of revocation and appointment may be inferted in all conveyances which derive their effect from the Statute of Ufes; and, when executed, the ufes originally declared cease, and new uses immediately arise out of the feifin of the cognizees, recoverors, or releasees, to the perfon named in the appointment; and the ftatute transfers the legal estate to the appointees, who, by that means, acquire the legal estate and poffeffion.

§ 2. Powers were foon found to be much more convenient than conditions, and were therefore gene

rally introduced into family settlements; and, although several of these powers are not usually called powers of revocation, fuch as powers of jointuring, leafing, and charging lands with the payment of a fum of money, yet all these are in fact powers of revocation, for they operate as revocations pro tanto of the preceding estates.

§ 3. Powers of revocation and appointment may be referved, either to the original owners of the land, or to mere ftrangers; from whence arifes the general divifion of powers into those which relate to the land, and those which are collateral to it.

§ 4. Powers relating to the land, are those which are given to fome person having an estate or interest in the land, over which they are to be exercised. These powers are again fubdivided into two forts: Powers Appendant, and in Grofs.

S 5. A power appendant, is where a perfon has an estate in land, with a power of revocation and appoint. ment, the execution of which falls within the compafs of his estate; as, where a tenant for life has a power of making leases for a certain number of years.

§ 6. It was refolved in Sir Edward Clere's cafe, that 6 Rep. 18 a. if a man, feised of lands in fee, makes a feoffinent to

the use of such person or perfons, and of fuch eftate and estates as he fhall appoint by his will, that, by

operation of law, the use doth veft in the feoffor, and he is feifed of a qualified fee, that is to fay, till deQ3 claration

1 Inft. 216a. n 2. Vide

Cox v. Chamberlain, in

fra, ch. 16.

Powers in
Grofs.

Powers collateral.

claration and limitation be made according to his

power.

§ 7. A power in grofs is, where a perfon has an estate in the land, with a power of revocation and appointment, the execution of which falls out of the compass of his eftate; but, notwithstanding, is annexed in privity to it, and takes effect in the appointee, out of an intereft vefted in the appointor.

§ 8. Thus, where a tenant for life has a power of creating an eftate, to commence after the determination of his own, fuch as a power to fettle a jointure on his wife, or to create a term for years, to commence in poffeffion after his own death, thefe are called Powers in Grofs; because the estate of the person to whom they are given, will not be affected by the execution

of them.

§ 9. Powers collateral, are those which are given to mere ftrangers, having no eftate or intereft in the Booth's Opin. land. Thus, where powers of fale and exchange are Cafes &Opin. given to trustees in a marriage-fettlement, they are faid to be collateral to the land, being referved to strangers.

vol. 1. 421.

Cowp.R.263.

§ 10. A power relating to the land, is part of the old dominion, and is therefore favourably expounded: whereas a power collateral to the land, being referved to a mere stranger, is confidered in the light of a bare authority, and is therefore conftrued ftrictly.

§ 11. Powers