power

The right, ability, authority, or faculty of doing something. Authority to do any act which the grantor might himself lawfully perform. Porter v. Household Finance Corp. of Columbus, D.C.Ohio, 385 F.Supp. 336, 341.

A power is an ability on the part of a person to produce a change in a given legal relation by doing or not doing a given act. Restatement, Second, Agency, No. 6; Restatement, Property, No. 3.

In a restricted sense a "power" is a liberty or authority reserved by, or limited to, a person to dispose of real or personal property, for his own benefit, or benefit of others, or enabling one person to dispose of interest which is vested in another.

See also authority

- beneficial power

- capacity

- concurrent power

- control

- delegation of powers

- donee of power

- enumerated powers

- executive powers

- governmental powers

- judicial power

- legislative power

- police power

- right.

@ appendant or appurtenant powers

@ appendant powers

@ appurtenant powers

Appendant or appurtenant powers.

Those existing where the donee of the power has an estate in the land and the power is to take effect wholly or in part out of that estate, and the estate created by its exercise affects the estate and interest of the donee of the power.

@ collateral powers

Those in which the donee of the power has no interest or estate in the land which is the subject of the power.

Also called naked powers.

@ constitutional powers

The right to take action in respect to a particular subject-matter or class of matters, involving more or less of discretion, granted by the constitution to the several departments or branches of the government, or reserved to the people.

Powers in this sense are generally classified as legislative, executive, and judicial (q.v.); and further classified as enumerated (or express), implied, inherent, resulting, or sovereign powers.

@ commerce powers

Power of Congress to regulate commerce with foreign nations, and among the several states. Art. I, No. 8, Cl. 3, U.S.Const.

@ enforcement powers

The 13th, 14th, 15th, 19th, 23rd, 24th, and 26th Amendments each contain a section providing, in these or equivalent words, that "Congress shall have the power to enforce by appropriate legislation, the provisions of this article."

+ enforcement powers

The 13th, 14th, 15th, 19th, 23rd, 24th, and 26th Amendments to U.S.Const. each contain clauses granting to Congress the power to enforce by appropriate legislation the provisions of such Amendments

@ enumerated powers

@ express powers

@ enumerated or express powers

enumerated or express powers

Powers expressly provided for in Constitution; e.g., U.S.Const. Art. I, No. 8.

+ enumerated powers

The powers specifically delegated by the Constitution to some branch or authority of the national government, and which are not denied to that government or reserved to the States or to the people. The powers specifically given to Congress are enumerated in Article I of U.S. Constitution.

See also power (constitutional powers)

@ implied powers

Such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant.

+ implied powers

Powers not granted in express terms but existing because they are necessary and proper to carry into effect some expressly granted power.

See also constitutional powers.

- enforcement powers

- necessary and proper powers

- penumbra doctrine.

@

Real property law.

An authority to do some act in relation to real property, or to the creation or revocation of an estate therein, or a charge thereon, which the owner granting or reserving such power might himself perform for any purpose. An authority expressly reserved to a grantor, or expressly given to another, to be exercised over lands, etc., granted or conveyed at the time of the creation of such power.

See power of alienation.

For other compound terms, such as power of appointment

- power of sale; etc.

@ inherent powers

Powers which necessarily inhere in the government by reason of its role as a government; e.g. conducting of foreign affairs. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315, 316, 57 S.Ct. 216, 81 L.Ed. 255.

+ inherent powers

/inhirsnt pawarz/

An authority possessed without its being derived from another. A right, ability, or faculty of doing a thing, without receiving that right, ability, or faculty from another. Powers originating from the nature of government or sovereignty, i.e., powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grants; e.g. in the foreign policy area, the Executive's inherent powers have been held to confer authority upon the President to settle the claims of American nationals against a foreign state as part of a diplomatic agreement. Charles T. Main Int'l, Inc. v. Khuzestan Water & Power Author., C.A.Mass., 651 F.2d 800, 80910.

+ inherent powers

Those which are enjoyed by the possessors of natural right, without having been received from another. Such are the powers of a people to establish a form of government, of a father to control his children. Some of these are regulated and restricted in their exercise by law, but are not technically considered in the law as powers.

Inherent agency power is a term used in the Restatement of Agency to indicate the power of an agent which is derived not from authority, apparent authority or estoppel, but solely from the agency relation and exists for the protection of persons harmed by or dealing with a servant or other agent. Restatement, Second, Agency No.8A.

See also power

- supremacy clause.

@ necessary and proper powers

Art. I, No. 8, Cl. 18 gives Congress power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers (i.e. those enumerated in clauses 117), and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

See also penumbra doctrine

@ preemptive powers

See preemption

- supremacy clause.

@ reserved state powers

@ residual state powers

@ reserved or residual state powers

reserved or residual state powers

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 10th Amend., U.S.Const.

@ resulting powers

Those powers which "result from the whole mass of the powers of the National Government and from the nature of political society." American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 516, 7 L.Ed. 242.

+ resulting powers

Powers of the federal government derived from a combination of several grants or the aggregate of power granted to the federal government.

See power (constitutional powers)

@ spending power

Power of Congress "to pay the debts and provide for the common defense and general welfare of the United States." Art. I, No. 8, Cl. 1, U.S.Const.

@ taxing power

Power of Congress "to lay and collect taxes, duties, imports and excises." Art. I, No. 8, Cl. 1.

+ taxing power

The governmental power to levy and collect taxes. U.S. Const., Art. I, No. 8, cl. 1.

See also Sixteenth Amendment

@ corporate powers

The right or capacity to act or be acted upon in a particular manner or in respect to a particular subject; as, the power to have a corporate seal, to sue and be sued, to make by-laws, to carry on a particular business or construct a given work.

@ general powers

@ special powers

@ general and special powers

General and special powers.

A power is general when it authorizes the alienation in fee, by means of a conveyance, will, or charge, of the lands embraced in the power to any alienee whatsoever.

It is special

(1) when the persons or class of persons to whom the disposition of the lands under the power is to be made are designated, or

(2) when the power authorizes the alienation, by means of a conveyance, will, or charge, of a particular estate or interest less than a fee.

@ general and special powers in trust

A general power is in trust when any person or class of persons other than the grantee of such power is designated as entitled to the proceeds or any portion of the proceeds or other benefits to result from the alienation.

A special power is in trust

(1) when the disposition or charge which it authorizes is limited to be made to any person or class of persons other than the holder of the power, or

(2) when any person or class of persons other than the holder is designated as entitled to any benefit from the disposition or charge authorized by the power.

@

- implied powers

- inherent powers

@ ministerial powers

See ministerial.

@ naked power

One which is simply collateral and without interest in the donee, which arises when, to a mere stranger, authority is given of disposing of an interest, in which he had not before, nor has by the instrument creating the power, any estate whatsoever

@ power of revocation

A power which is to divest or abridge an existing estate

@ powers in gross

Those which give a donee of the power, who has an estate in the land, authority to create such estates only as will not attach on the interest limited to him or take effect out of his interest, but will take effect after donee's estate has terminated.

@ power coupled with an interest

A right or power to do some act, together with an interest in the subjectmatter on which the power is to be exercised. It is distinguished from a naked power, which is a mere authority to act, not accompanied by any interest of the donee in the subject-matter of the power. Arcweld Mfg. Co. v. Burney, 12 Wash.2d 212, 121 P.2d 350, 355

@ power of acceptance

Capacity of offeree, upon acceptance of terms of offer, to create binding contract

@ power of alienation

The power to sell, transfer, assign or otherwise dispose of property

@ power of appointment

A power or authority conferred by one person by deed or will upon another (called the "donee") to appoint, that is, to select and nominate, the person or persons who are to receive and enjoy an estate or an income therefrom or from a fund, after the testator's death, or the donee's death, or after the termination of an existing right or interest. A power of appointment may be exercisable by deed or by will depending upon the terms established by the donor of the power, and is defined, generally, as power or authority given to person to dispose of property, or interest therein, which is vested in person other than donee of the power. In re Conroy's Estate, 67 C.A.Sd 734, 136 CaLRptr. 807, 809.

??Powers are either: Collateral, which are given to strangers; i.e., to persons who have neither a present nor future estate or interest in the land. These are also called simply "collateral," or powers not coupled with an interest, or powers not being interests. Or they are powers relating to the land. These are called "appendant" or "appurtenant," because they strictly depend upon the estate limited to the person to whom they are given. Thus, where an estate for life is limited to a man, with a power to grant leases in possession, a lease granted under the power may operate wholly out of the life-estate of the party executing it, and must in every case have its operation out of his estate during his life. Such an estate must be created, which will attach on an interest actually vested in himself.

Or they are called "in gross," if given to a person who had an interest in the estate at the execution of the deed creating the power, or to whom an estate is given by the deed, but which enabled him to create such estates only as will not attach on the interest limited to him. Of necessity, therefore, where a man seised in fee settles his estate on others, reserving to himself only a particular power, the power is in gross.

An important distinction is established between general and particular powers. By a general power we understand a right to appoint to whomsoever the donee pleases including himself or his estate. By a particular power it is meant that the donee is restricted to some objects designated in the deed or will creating the power. A general power is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution. A general power is in trust when any person or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation.

When a power of appointment among a class requires that each shall have a share, it is called a "distributive" or "non-exclusive" power; when it authorizes, but does not direct, a selection of one or more to the exclusion of the others, it is called an "exclusive" power, and is also distributive; when it gives the power of appointing to a certain number of the class, but not to all, it is exclusive only, and not distributive.

A power authorizing the donee either to give the whole to one of a class or to give it equally among such of them as he may select (but not to give one a larger share than the others) is called a "mixed" power. For the estate tax and gift tax effects of powers of appointment, see I.R.C. No.No. 2041 and 2514.

See also general power of appointment

- illusory appointment;

- limited power of appointment.

@ special power of appointment

A power of appointment that cannot be exercised in favor of the donee or his or her estate but may be exercised only in favor of identifiable person(s) other than the donee.

See also limited power of appointment.

@ testamentary power

A power of appointment that can only be exercised through a will (i.e., upon the death of the holder)

@ power of attorney

An instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal. Complaint of Bankers Trust Co., C.A.Pa., 752 F.2d 874, 885.

An instrument authorizing another to act as one's agent or attorney. The agent is attorney in fact and his power is revoked on the death of the principal by operation of law. Such power may be either general (full) or special (limited).

+ power of attorney

The instrument by which authority of one person to act in place and stead of another as attorney in fact is set forth.

See also power;

- general power of attorney/full power of attorney;

- special power of attorney/limited power of attorney.

@ durable power of attorney

Exists when person executes a power of attorney which will become or remain effective in the event he or she should later become disabled. Uniform Probate Code No. 5-501

See power of attorney

@ power of disposition

Every power of disposition is deemed absolute, by means of which the donee of such power is enabled in his life-time to dispose of the entire fee for his own benefit; and, where a general and beneficial power to devise the inheritance is given to a tenant for life or years, it is absolute, within the meaning of the statutes of some of the states.

See power of appointment

@ power of sale

A clause commonly inserted in mortgages and deeds of trust, giving the mortgagee (or trustee) the right and power, on default in the payment of the debt secured, to advertise and sell the mortgaged property at public auction (but without resorting to a court for authority), satisfy the creditor out of the net proceeds, convey by deed to the purchaser, return the surplus, if any, to the mortgagor, and thereby divest the latter's estate entirely and without any subsequent right of redemption

@ power of termination

The interest left in the grantor or testator after the conveyance or devise of a fee simple on condition subsequent or conditional fee, e.g. "to A on condition that the property be used for church purposes." When such property is no longer used for church purposes, the grantor may enter or commence an action for entry based on the breach of the condition. However, he is not automatically revested. He must enter or commence an action

@