SEC. 79. When a general or special power is beneficial. 80. Married women may execute general and beneficial powers. 81. Absolute power of disposition in tenant for life, etc., creates a fee, etc. 83. When grantee of such power entitled to absolute fee. 84. Power to devise inheritance to be deemed absolute power in certain cases. 85. Power to dispose of fee in certain cases, absolute power of disposition. 86. Effect of reserving power of revocation. 87. To whom special and beneficial powers may be granted. 88. Power of tenant for life to make leases, not assignable, etc. 89. To whom it may be released. 90 & 91. Effect of mortgages by persons having power to make leases. 92. Future beneficial powers not herein enumerated, invalid. 93. Liability of beneficial powers in equity, to creditors. 94. When general powers are in trust. 95. When special powers are in trust. 96. Trust powers imperative, unless expressly made optional. 97. Effect of a right of selection by grantee of power. 98 & 99. Powers to distribute among several persons, how to be construed. 100. Chancery to execute power on death of trustee having right of selection. 101. Also where person to execute power is not designated. 102. Certain prior sections to apply to power in trust. 103. Creditors, etc., of objects of trust, when to compel execution of powers. 104. Effect of assignments under insolvent acts, etc., upon beneficial powers. 105. Powers that may be reserved by grantors in conveyances. 106. By what instruments powers may be granted. 107. When powers to be recorded. 108. Powers irrevocable unless authority is expressly reserved. 109. In whom powers may be vested; by whom exercised. 110. Married women, when and how to execute powers. 111. Married women not to execute power until of age. 112. Powers to be executed by all surviving grantors thereof.. 113. By what instruments powers to be executed. 114. Such instruments to be deemed conveyances. 115. Power to dispose by devise, how executed. 116. Power to dispose by grant, cannot be executed by will. 117. Executions by married women, to be acknowledged. 118. Execution governed by preceding rules, although otherwise directed by grantor. 119. Useless formalities directed, dispensed with. 120. Nominal conditions may be disregarded. 121. In other respects, directions of grantor to be observed. 122. Consent of third persons to execution of power, how evidenced. 123. Dispositions not void on account of being too extensive. 124. Instruments executing power valid, although power not recited. 125. Such instruments affected by fraud. 126. General terms in a will sufficient to execute power to devise. 127. Estates given to descendants by virtue of certain powers, to be advancements. 128. How term during which alienation may be suspended, to be computed. 129. Who capable of taking in execution of power. 130. Authority of married women, under powers. 131. Defective executions of powers, corrected in equity. ART. 3. (732) 132. Relief to purchasers under defective executions. 133. Powers to sell in mortgages, to pass to assignees thereof. 134. This article not to extend to simple powers of attorney, etc. 135. Definition of the terms "grantor of a power" and "grantee of a power." exist abol. § 73. Powers, as they now exist by law, are abolished; and from Powers as the time this chapter shall be in force, the creation, construction and they now execution of powers, shall be governed by the provisions of this ished. article. Future powers. 42 N. Y., 534; 29 N. Y, 39, 78; 8 Bosw., 192; 73 N. Y., 230; 28 Hun, 64, 214, 603; 32 Hun, 485; 86 N. Y., 522; 88 N. Y., 174; 92 N. Y., 199, 295, 304, 627. of a power. § 74. A power is an authority to do some act in relation to lands, Definition or the creation of estates therein, or of charges thereon, which the 35 N. Y. owner granting or reserving such power, might himself lawfully 89; 4 Lans., perform. TITLE 2. 234; 7 Barb., 62, 6 Hun, 31; 97 N. Y., Who may grant Bosw., 241; 8 Bosw., 192, 481; 4 Hun, 290; 46 N. Y., 16; 12 N. Y., 404; 5 N. Y., 413; 1 § 75. No person is capable in law of granting a power, who is not Duer, 95; at the same time, capable of aliening some interest in the lands to powers. 8 Bosw., 192; 4 Hun, 744. which the power relates. § 76. Powers, as authorised in this article, are general or special, Division of and beneficial or in trust. powers. 20 Barb., Definition of general 54; 4 Lans., Definition j N. Y., 402; 41 Barb., 69; 8 Bosw., 193; 36 Hun, 170. Beneficial powers. 238; 8 Bosw., 193. § 77. A power is general, where it authorises the alienation in fee, by means of a conveyance, will or charge of the lands embraced in the power, to any alienee whatever. How. Pr. R., 166; 8 Bosw., 193; 69 N. Y., 1; 21 Barb., 52; 1 Barb., 62; 41 Barb., § 78. A power is special, 1. Where the persons or class of persons, to whom the disposition of the lands under the power is to be made, are designated, 2. Where the power authorises the alienation, by means of a conveyance, will or charge of a particular estate or interest less than a fee. § 79. A general or special power is beneficial, when no person 45 How Pr. other than the grantee has, by the terms of its creation, any interest in its execution. R., 166; 20 Barb., 238; 22 Wend., 35 Hun, Powers to married women. 15 N. Y., 313; 12 Ń. Y., 423; 7 Estate of tenant for life, &c., when changed 493; 42 N. Y., 534; 36 N. Y., 581; 49 Barb., 54; 67 N. Y., 63; 73 N. Y., 230; 20 Hun, 360; § 80. A general and beneficial power may be given to a married § 81. Where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular estate, for life or years, such estate shall be changed into a fee, absolute in reinto a fee. spect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be exe45 How.Pr. Cuted, or the lands should not be sold for the satisfaction of debts. N. Y., 518; 2 Abb. Ct. App. Dec., 478; 67 N. Y., 63; 17 Abb. N. C., 340; 4 Dem., 240; 478; 97 N. Y., 433, 558; 100 N. Y., 312. 8 Bosw., 193; 2 Lans., 276; R., 166; 47 37 Hun, Certain powers create a fee, &c. § 82. Where a like power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee, subject to any future estates that may be limited 6T; & thereon, but absolute in respect to creditors and purchasers. 555; N. Id. § 83. In all cases where such power of disposition is given, and no remainder is limited on the estate of the grantee of the power, 534:49 such grantee shall be entitled to an absolute fee. 2 N. Y., Barb., 55; 2 Effect of power to devise in heritance in certain cases. 49 Barb., 55; 2 Lans, 276; 2 Abb. Ct. App. § 84. Where a general and beneficial power, to devise the inheritance, shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections. Dec., 178; 20 Hun, 360; 37 Hun, 478. § 85. Every power of disposition shall be deemed absolute by means of which the grantee is enabled, in his life time, to dispose of the entire fee, for his own benefit. ART. 3. dispose of Power to fee. revoke. Special 399; 6 N. Y. S. C. R. (T. & C.), 555; 69 N. Y., 1; 17 Abb. N. C., 340; 4 Dem., 240; 97 N. Y., § 86. Where the grantor in any conveyance shall reserve to himself, for his own benefit, an absolute power of revocation, such grantor shall still be deemed the absolute owner of the estate conveyed so far as the rights of creditors and purchasers are concerned. § 87. A special and beneficial power may be granted, 1. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the lands to which the power relates: 2. To a tenant for life of the lands embraced in the power, to make wend:. 270; leases for not more than twenty-one years, and to commence in possession during his life. and benefers, who cial pow may take. 15 N. Y., 307; 18 20 Hún, 360. make If tenant for life. § 88. The power of a tenant for life to make leases, is not assign- Power to able as a separate interest, but is annexed to his estate, and will pass, leases by (unless specially excepted) by any conveyance of such estate. specially excepted in any such conveyance, it is extinguished. § 89. Such power may be released by the tenant to any person Release of entitled to an expectant estate in the lands, and shall thereupon be such pow extinguished. er. by party § 90. A mortgage executed by a tenant for life having a power to Mortgages make leases, or by a married woman, by virtue of any beneficial having power, does not extinguish or suspend the power; but the power is power to bound by the mortgage, in the same manner as the lands embraced 56 Barb., therein. lease, &c. 605. thereof. § 91. The effects of such a lien by mortgage on the power, are, Effect 1. That the mortgagee* is entitled, in equity, to an execution of the the power, so far as the satisfaction of his debt may require: 2. That any subsequent estate created by the owner, in execution of the power, becomes subject to the mortgage, in the same manner as if in terms embraced therein. § 92. No beneficial power, general or special, hereafter to created, other than such as are already enumerated and defined this article, shall be valid. 605. beneficial be Future the Wen 324. [734] Beneficial powers lia itors. $93. Every special and beneficial power is liable, in equity, to claims of creditors, in the same manner as other interests that cannot be reached by an execution at law and the execution of the ble to credpower may be decreed for the benefit of the creditors entitled. § 94. A general power is in trust, when any person or class of persons, other than the grantee of such power, is designated as en- powers titled to the proceeds, or any portion of the proceeds, or other trust. benefits to result from the alienation of the lands, according to the power. 5 Barbour, 198, 652; 1 Barb., 62; 3 Edw., 212; 3 Sandf. S. C., 555; 50 N. Y., 431; 42 N. § 95. A special power is in trust, Robt., 109. General when in 241; 69 N. 7 Bosw., Special when in 1. When the disposition which it authorises, is limited to be made powers to any person or class of persons, other than the grantee of such power. trust. 5 Barb., In the first edition of the Revised Statutes, this word is printed "mortgage." Not so in the Sandf. S. original, on file in the office of the secretary of state. TITLE 2. 2. When any person or class of persons, other than the grantee, C., 529; 1 is designated as entitled to any benefit from the disposition or charge [Thus amended by L. 1830, ch. 320, Barb., 58; 35 N. Y., 89; authorized by the power. 6 Hun, 534; 29 Hun, 603. § II.] Trust pow tive. 13 Abb. § 96. Every trust power, unless its execution or non-execution ers impera is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity, for the benefit of the parties interested. Pr. R., N. S, 15; 6 Hun, 534; 12 N. Y., 403; 3 N. Y., 280; 5 Barb., 198; 8 Paige, 120; 3 Edw., 212; 1 Barb., 58; 36 Barb., 44; 50 N. Y., 436; 65 Barb., 250; 4 Lans.,238; 37 Hun, 22; 88 N. Y., 174; 92 N. Y., 539, 551; 97 N. Y., 558. Effect of right of § 97. A trust power does not cease to be imperative, where the selection. grantee has the right to select any, and exclude others of the persons designated as the objects of the trust. Construction of certain powers. 41 Barb., 69. Id. When chancery § 98. Where a disposition under a power is directed to be made. to or among or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion. § 99. But when the terms of the power import that the estate or fund is to be distributed between the persons so designated, in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons, in exclusion of the other. § 100. If the trustee of a power, with the right of selection, shall to execute die, leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated, as objects of the trust. power. 25 Barb., 399; 5 Paige, 468; 3 Sandr. S. Id. C., 559; 2 Sandf. S. C., 515. § 101. Where a power in trust is created by will, and the testator 5 N. Y., 139. has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery. Applica tion of cer- Barb., 133; 23 Barb., 498; 15 Abb. [735] Execution of trust power when com pelled by affected by insolvent assign ments, &c. 47 Barb., 613, 67; 56 Barb., 606. Reserva tion of § 102. The provisions contained in the second article of this title, from section sixty-six to section seventy-one, both inclusive, in relation to express trusts and trustees, shall apply equally to powers in trust, and the grantees of such powers. N. C., 123; 98 N. Y., 39; 88 N. Y., 174. § 103. The execution in whole or in part, of any trust power, may be decreed in equity, for the benefit of the creditors or assignees of any person entitled as one of the objects of the trust, to compel its execution, when the interest of the objects of such trust is assignable. 47 Barb., 613; 56 Barb., 606; 8 Bosw., 186; 7 Robt., 109; 79 N. Y., 478. § 104. Every beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass to the assignee of the estate and effects of the person in whom such power or interest is vested, under any assignment authorised by the provisions of the fifth chapter of this act. § 105. The grantor in any conveyance may reserve to himself any powers in power, beneficial or in trust, which he might lawfully grant to another; and every power thus reserved, shall be subject to the provisions of this article, in the same manner as if granted to another. convey ances. 12 N. Y., 1. By a suitable clause contained in a conveyance of some estate in the lands, to which the power relates: 2. By a devise contained in a last will and testament. ART. 3. 5 N. Y. 413; 2 Sandf. S. C., 580; 4 Lans., 238; 36 N. Y., 583; 28 Hua, 64; 92 N. Y., 627. ers to be 4 Hun, 290; 188; 6 T. & § 107. Every power shall be a lien or charge upon the lands which When powit embraces, as against creditors and purchasers in good faith and recorded. without notice, of or from any person having an estate in such lands, 8 Bosw., only from the time the instrument containing the power shall be duly C., 555; 6 recorded. As against all other persons, the power shall be a lien Hun, 534; 11 from the time the instrument in which it is contained, shall take effect. § 108. Every power, beneficial or in trust, is irrevocable, unless ers irrevoan authority to revoke it, is granted or reserved in the instrument 12 N. Y., creating the power. 404;1 Barb., 62; 2 Barb., 58; 23 Barb.,498; 46 N. Y., 577; 65 Barb., 250; 11 Daly, 96. Daly, 97. When pow. cable. ecute women. 25 N. Y.. 307; 12 478; 15 N. N. Y., § 109. A power may be vested in any person capable in law of Who to exholding, but cannot be exercised by any person not capable, of alien- powers. 10 Barb., ing lands, except in the single case mentioned in the next section. 604. § 110. A married woman may execute a power during her mar- Married riage, by grant or devise, as may be authorised by the power, without the concurrence of her husband, unless by the terms of the power its execution by her, during marriage, is expressly or impliedly prohibited. § 111. No power vested in a married woman, during her infancy, can be exercised by her, until she attains her full age. § 112. Where a power is vested in several persons, all must unite in its execution; but if previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors. 123; 27 Barb., 332; 1 Barb. Ch., 13, 240; 10 Barb., 597. Bradf, 114. Execution by surviv Barb., 250; 5 N. ors, etc. Y. S. C. Pr., N. S., 296; 11 N. Y., 397; 1 N. Y., 358; 1 Barb. Ch., 569; 2 Paige, 197; 1 Sweeny, 69; 3 Han, 51. cuted § 113. No power can be executed except by some instrument in How exe. writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner. [736] 11 N. Y., 398; 65" Barb., 258; 28 Hun, 603. ments § 114. Every instrument, except a will, in execution of a power, Instru and although the power may be a power of revocation only, shall be deemed deemed a conveyance within the meaning, and subject to the pro-ances visions, of the third chapter of this act. convey. 12 N. Y.. 404. § 115. Where a power to dispose of lands is confined to a dispo- Execution sition by devise or will, the instrument of execution must be a will of power to dispose by duly executed, according to the provisions of the sixth chapter of devise. this act. 10 Barb., 597; 41 Barb., 69; 97 N. Y. 556. pose by § 116. Where a power is confined to a disposition by grant, it Id., to dis cannot be executed by will, although the disposition is not intended grant. to take effect until after the death of the party executing the power. Barb, 4 N. Y., 11; 412; 3 Barb., 128; 97 N. Y., 556. women to edge exe. § 117. If a married woman execute a power by grant, the concur- Married rence of her husband, as a party, shall not be requisite, but the grant acknowl shall not be a valid execution of the power, unless it be acknowledged cutions. by her on a private examination, in the manner prescribed in the third 6 Barb., chapter of this act, in relation to conveyances by married women. [See L. 1879, ch. 249, as amended by L. 1880, ch. 300, post.] 258; 63 Barb., 71; 16 W. D., 478. |