Hartley Appeal

The opinion of the court was delivered, by

Thompson, J.

There was no error committed by the court below in holding the power of attorney of Hannah Gallion to the. appellants to be revocable. It was an ordinary agency, constituted by letter of attorney, to act for her to enforce a settlement of his accounts by the administrator of her father’s estate, in which she was interested, and to collect any moneys or property that might belong, or be coming to her. For these services the attorneys were to have one-half of the net proceeds of what they might receive or recover for her. The plaintiffs in error suppose that this clause rendered the power irrevocable by their principal, under the idea that it was a power coupled with an interest. This was a mistake, as all the authorities show. To impart an irrevocable quality to a power of attorney in the absence of any express stipulation; and as the result of legal principles alone, there must co-exist with the power an interest in the thing or estate to be disposed of or managed under the power. An instance of frequent occurrence in practice may be given of the assignment of vessels at sea, with a power to sell for the benefit of the holder of the power, or of anybody else who may have advanced money and who it was agreed should be secured in that way. So where securities have been transferred with a power to sell, and generally, I presume, in all cases of property pledged for the security of money where there is an accompanying authority to sell to reimburse the lender or creditor. In Hunt v. Rousmanier, 8 Wheat. 174, this doctrine is clearly and fully elucidated in the opinion of Marshall, C. J. In Bancroft v. Ashhurst, 2 Grant 513, a case tried at Nisi Prius before me, at which my brethren sat as adsessors, there is a pretty full examination of the question herein involved, and all the authorities referred to, and the conclusion is fully in accordance with Hunt v. Rousmanier, and sustains the above view of a power coupled with an interest.

In the case in hand the power and the interest could not coexist. The interest the appellants would have would be in the net proceeds collected under the posver, and the exercise of the power to collect the proceeds would ipso facto extinguish it entirely, or so far as exercised. Hence the appellants’ interest would properly begin when the power ended. This distinction is noticed in Hunt v. Rousmanier ; hut neither by this test, nor any other, was the power of attorney in question irrevocable, and this judgment must be affirmed.

Judgment affirmed.