Atkinson v. Dowling

Citations

• 33 S.C. 414
• 12 S.E. 93
• 1890 S.C. LEXIS 161

Syllabus

<p>1. Query: Where a power of appointment is to be executed by “last will and testamentor other writing executed in the presence of three or more witnesses,’’ must there be three subscribing witnesses, to such other writing ? And if so, would the recital in the instrument of appointment that it had been executed in the presence of three witnesses bo sufficient, where only two persons subscribed their names as witnesses?</p> <p>2. Where an estate is given to one for life with a power of appointment of the remainder in fee, and with valid limitations over if the power is not executed, it is a power collateral or in gross, and is not a power in trust. And such a power may be released or extinguished by the act of the donee, where the intention so to release or relinquish clearly appears.</p> <p>3. Where the donee of a power collateral or in gross professes to execute her power of appointment and then joins in a deed with general warranty, and uses the consideration of such deed in paying off a charge put upon the premises by the donor of the power, she sufficiently evidences her intention of releasing her power of appointment as to the property so conveyed ; and her subsequent will, containing a general appointment under this power, will be construed to refer only to such parts of the donor’s estate as were not embraced in such release.</p> <p>4. Where the remaindermen in fee in default of appointment convey all their interests in the estate to the life,tenant, who has also a power of appointment, is the estate of the life tenant thereby enlarged into an estate in fee ?</p> <p>5. The donee of a power of appointment in gross over several tracts and lots of land, may release her power as to one of thorn' and execute the power as to the others.</p>