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TITLE 2.

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For what purposes express trusts may be created.

not extend to cases, where the alienee named in the conveyance, shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration, or where such alienee, in violation of some trust, shall have purchased the lands so conveyed, with monies belonging to another person.

18 N. Y., 515; 11 B., 407; 16 B., 376; 17 B., 103. Purchasers $ 54. No implied or resulting trust shall be alleged or estab

lished, to defeat or prejudice the title of a purchaser, for a valuable consideration, and without notice of such trust.

22 N. Y., 566. $ 55. Express trusts may be created, for any or either of the following purposes:

1. To sell lands for the benefit of creditors:

2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon:

3. To receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first

Article of this Title: (729) 4. To receive the rents and profits of lands, and to accumu

late the same, for the purposes and within the limits prescribed in the first Article of this Title.

23 N. Y., 377; 17 N. Y., 567; 12 N. Y., 403; 7 N. Y., 257; 6 N. Y.,

578; 5 N. Y., 413, 557; 2 N. Y., 306; 31 B., 336; 25 B., 395; 23 B., 498; 20 B., 639; 18 B., 473; 9 B., 340, 585; 5 B., 101, 144, 444, 613; 3 B. Chi, 92; 2 B. Ch., 517; 3 H., 101; 5 D., 651; 4 D., 389; 1 D., 57; 7 Pai., 234, 275 ; 5 Pai., 220, 461; 22 W., 486; 14 W., 265; 11 W., 240; 2 Ed., 91; 4 S. Ch., 414; 5 S. S. C., 363; 3 S. S. C., 502; 3 Ab., 403; 13 How. P. R., 157; 8 How. P. R., 389;

Laws of 1830, ch. 320, $ 10; 2 Du., 59. in de $ 56. A devise of lands to executors or other trustees, to be vises in no sold or mortgaged, where the trustees are not also empowered

to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.

18 N. Y., 107; 2 B., 537; 2 Ed., 559; 2 H., 569. Profits of $ 57. Where a trust is created to receive the rents and to creditors profits of lands, and no valid direction for accumulation is

given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable, in equity, to the claims of the creditors of such person, in the same manner as other personal property, which cannot be reached by an execution at law.

6 N. Y., 578; 18 B., 469; 1 B. Ch., 36; 8 Pai., 85; 5 Pai., 586 ; 2 Ed.,

379; 3 S. S. C., 541; 14 N. Y., 41; 11 Pai., 140. Other ex- S 58. Where an express trust shall be created, for any truste, to be purpose not enumerated in the preceding sections, no estate Pouwer's in shall vest in the trustees; but the trust, if directing or autho

trust, to be deemed powers.

in certain cases.

powers in trust.

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rising the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers, contained in the third Article of this Title.

| 12 N, Y., 404; 7 N. Y., 570; 23 B, 499; 9 B., 519; 1 B, 58; 9 Pai.,

116; 8 Pai., 120; 3 S. Ch., 554; 8 W., 661; 18 W., 257; 22 W.,

483. $ 59. In every case where the trust shall be valid as a power, And land, the lands to which the trust relates, shall remain in, or descend, scend to to the persons otherwise entitled, subject to the execution of titled. the trust as a power.

S 60. Every express trust, valid, as such, in its creation, Trustees of except as herein otherwise provided, shall vest the whole trusts to estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose beuefit the trust is created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.

21 N. Y., 576; 17 N. Y., 567; 10 N. Y., 271; 9 N. Y., 413; 6 N. Y.,
| 578; 3 N. Y., 535; 31 B., 336; 25 B, 395; 2 B., 601; 1 B. Ch., 36;

2 Ed., 559; 7 How. P. R., 349; 4 E. D. S., 134; 3 S.'S. C., 531. S 61. The preceding section shall not prevent any person Last section, creating a trust, from declaring to whom the lands to which qualified. the trust relates, shall belong, in the event of the failure or termination of the trust; nor shall it prevent him from granting or devising such lands, subject to the execution of the trust. Every such grantee or devisee shall have a legal estate in the lands, as against all persons, except the trustees and those lawfully claiming under them.

21 N. Y., 576; 31 B., 336; 25 B., 395; 4 E. D. S., 134. $ 62. Where an express trust is created, every estate and Interests interest not embraced in the trust and not otherwise disposed fing of, shall remain in, or revert to, the person creating the trust, rust, or his heirs, as a legal estate.

21 N. Y., 576. S 63. No person beneficially interested in a trust for the [730] receipt of the rents and profits of lands, can assign or in any Powers

over trust, manner dispose of such interest; but the rights and interest of party in

terested. of every person for whose benefit a trust for the payment of a te sum in gross is created, are assignable.

19 N. Y., 455; 12 N. Y., 401; 6 N. Y., 578; 31 B., 336; 26 B., 453; 7

B., 235; 5 B., 198; 1 B. Ch., 36; 8 Pai., 85; 7 Pai., 521; 5 Pai.,
586; 4 Ed., 507; 3 S. Ch., 554; 1 S. Ch., 341; 5 S. S. C., 363; 3 S.
S. C., 541; 22 W., 549; 18 How. P. R., 54; 16 W., 61; 24 W.,

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$ 64. Where an express trust is created, but is not contained Effect of or declared in the conveyance to the trustees, such conveyance trust in conshall be deemed absolute, as against the subsequent creditors veya of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration.

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29 B., 484; 22 B., 97.

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TITLE 2

$ 65. Where the trust shall be expressed in the instrument Certain sales, &c., creating the estate, every sale, conveyance or other act of the by trustees, void. trustees, in contravention of the trust, shall be absolutely void.

20 N. Y., 21; 18 N. Y., 107; 12 N. Y., 394; 6 N. Y., 360; 31 B., 336;

30 B., 321; 20 B., 404; 7 How. P. R., 349. Others not $ 66. No person who shall actually and in good faith pay a to be affected by mis- sum of money to a trustee, which the trustee as such is authoconduct of

rised to receive, shall be responsible for the proper application trustees.

of such money, according to the trust; nor shall any right or title, derived by him from such trustee, in consideration of such payment, be impeached or called in question, in consequence of any misapplication, by the trustee, of the monjes paid.

10 Pai., 282; 12 N. Y., 403; 30 B., 133; 22 B., 99; 7 J. C. R., 150; 16

How. P. R., 357. When es... S 67. When the purposes for which an express trust shall tate of trustee to cease. have been created, shall have ceased, the estate of the trustees shall also cease.

5 Pai., 458; 4 Pai., 404; 2 S. Ch., 296; 9 B., 516. Trast estate $ 68. Upon the death of the surviving trustee of an express scend, &c. trust, the trust estate shall not descend to his heirs, nor pass

to his personal representatives; but the trust, if then unexechancery. cuted, shall vest in the court of chancery, with all the powers

and duties of the original trustee, and shall be executed by some person appointed for that purpose, under the direction of the court.

27 B., 407 ; 9 B., 638; 7 Pai., 107; 5 Pai., 560. When and $ 69. Upon the petition of any trustee, the court of chancery

may accept his resignation, and discharge him from the trust, under such regulations as shall be established by the court for that purpose, and upon such terms, as the rights and interests of the persons interested in the execution of the trust, may require.

- 19 N. Y., 455; 25 B., 99; 1 B. Ch, 568; 3 Pai., 420.

S 70. Upon the petition or bill of any person interested in the execution of a trust, and under such regulations as for that purpose shall be established, the court of chancery may remove any trustee who shall have violated or threatened to violate his trust, or who shall be insolvent, or whose insolvency shall be apprehended, or who, for any other cause, shall be deemed an unsuitable person to execute the trust.

9 N. Y., 176; 2 B., 447; 1 E. D. S., 572. How places $71. The chancellor shall have full power to appoint a new supplíed.

trustee, in place of a trustee resigned or removed ; and when,

in consequence of such resignation or removal, there shall be [731]

no acting trustee, the court, in its discretion, may appoint new trustees, or cause the trust to be executed by one of its officers, under its direction.

25 B., 99; 1 B. Ch., 568; 5 Pai., 47, 560; 11 Ab., 472.

how trustee may resign.

When and how trustee may be removed.

Application

$ 72. The three last sections shall extend only to cases of Ap

ART. 3. express trusts.

of three last See Laws of 1840, ch. 318; 1841, ch. 261; 1846, ch. 74; 1839, ch. 174,

184; 1849, ch. 373; 1845, ch. 112; 1855, ch. 432, ch. 230; 1852, ch. 203.

sections.

ARTICLE THIRD.

OF POWERS.
SEC. 73. Powers as they now exist abolished; future powers to be governed by this

Article.
74. Definition of a power.
75. Who capable of granting powers.
76. Powers, general or special, and beneficial or in trust.
77 & 78. Definitions of general and special powers.
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, &c. creates a fee.
82. Like power to any other, creates absolute fee as to creditors.
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, &c.
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, how 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, &c. of objects of trust, when to compel execution of powers.
104. Effect of assignments under insolvent acts, 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.

1. —86

Powers as they now

Future

form.

Who may grant powers.

TITLE 2 SEC.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. (732)

131. Defective executions of powers, corrected.
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, &c.
135. Definition of the terms "grantor of a power” and “grantee of a power."

S 73. Powers, as they now exist by law, are abolished; and 61- from the time this Chapter shall be in force, the creation, conexist abolished.

struction and execution of powers, shall be governed by the powers provisions of this Article. Definition $74. A power is an authority to do some act in relation to of a power

lands, or the creation of estates therein, or of charges thereon,

which the owner granting or reserving such power, might ' himself lawfully perform.

12 N. Y., 404; 5 N. Y., 413; 1 B., 62; 3 Du., 73. S 75. No person is capable in law of granting a power, who is not at the same time, capable of aliening some interest in the lands to which the power relates.

3 Du., 95. Division of S 76. Powers, as authorised in this Article, are general or powers. special, and beneficial or in trust.

20 B., 238. Definition

$77. A power is general, where it authorises the alienation of general

in fee, by means of a conveyance, will or charge of the lands powers. embraced in the power, to any alienee whatever.

21 B., 52; 1 B., 62. Definition

S 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.

11 N. Y., 402.

$ 79. A general or special power is beneficial, when no perpowers.

son other than the grantee has, by the terms of its creation, any interest in its execution.

20 B., 238; 22 W., 498. Powers to S80. A general and beneficial power may be given to a

married woman, to dispose, during her marriage, and without the concurrence of her husband, of lands conveyed or devised to her in fee.

15 N. Y, 313; 12 N. Y, 423; 7 Pai, 399; 22 , 499; 1 B. Chi, 13, 240.

of special powers.

Beneficial

married women,

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