ART. 3. Estate of life, &c., changed S81. Where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particu- tenant for lar estate, for life or years, such estate shall be changed into when a fee, absolute in respect to the rights of creditors and pur- into a fee. chasers, but subject to any future estates limited thereon, in case the power should not be executed, or the lands should not be sold for the satisfaction of debts. powers cre S82. Where a like power of disposition shall be given to Certain any person to whom no particular estate is limited, such per- ate a fee, son shall also take a fee, subject to any future estates that &c. may be limited thereon, but absolute, in respect to creditors and purchasers. $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, such grantee shall be entitled to an absolute fee. S84. 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. . [733] Effect of vise inheritunce in cer power to de ta in cases. dispose of $85. Every power of disposition shall be deemed absolute, Power to by means of which the grantee is enabled, in his life time, to fee. dispose of the entire fee, for his own benefit. 7 Pai., 399. S 86. Where the grantor in any conveyance shall reserve to Power to himself, for his own benefit, an absolute power of revocation, revoke. such grantor shall still be deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned. Special and powers, S87. A special and beneficial power may be granted, 1. To a married woman, to dispose, during the marriage, beneficial and without the concurrence of her husband, of any estate who may 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 leases for not more than twenty-one years, and to commence in possession during his life. 15 N. Y., 307; 18 W., 270. take. make leases for life. S88. The power of a tenant for life to make leases, is not Power to assignable as a separate interest, but is annexed to his estate, by tenant and will pass, (unless specially excepted) by any conveyance of such estate. If specially excepted in any such conveyance, it is extinguished. $ 89. Such power may be released by the tenant to any per- Release of son entitled to an expectant estate in the lands, and shall such power. thereupon be extinguished. by party $ 90. A mortgage executed by a tenant for life having a Mortgages power to make leases, or by a married woman, by virtue any beneficial power, does not extinguish or suspend the er to lease, of having pow &c. TITLE 2 power; but the power is bound by the mortgage, in the same Effect thereof. Future beneficial powers. [734] Beneficial powers lia manner as the lands embraced therein. $91. The effects of such a lien by mortgage on the power, are, 1. That the mortgagee is entitled, in equity, to an execution of 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 be created, other than such as are already enumerated and defined in this Article, shall be valid. 18 W., 270; 16 W., 324. S93. Every special and beneficial power is liable, in equity, to the claims of creditors, in the same manner as other interble to cred- ests that cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled. itors. General powers, when in trust. Special powers, when in trust. Trust pow tive. S 94. 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 of the lands, according to the power. 5 B., 198, 652; 1 B., 62; 3 Ed., 212; 3 S. S. C., 555. S 95. A special power is in trust, 1. When the disposition which it authorises, is limited to be made to any person or class of persons, other than the grantee of such power. 2. When any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorised by the power. Laws of 1830, ch. 320, § 11; 5 B., 652; 3 Ed., 212; 3 S. S. C., 559; 1 B., 58. S96. Every trust power, unless its execution or non-execuers impera- tion 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. Effect of 12 N. Y., 403; 3 N. Y., 280; 5 B., 198; 8 Pai., 120; 3 Ed., 212; 1 B., 58. S97. A trust power does not cease to be imperative, where right of se- the grantee has the right to select any, and exclude others of the persons designated as the objects of the trust. lection. Construc tain pow ers. $98. Where a disposition under a power is directed to be tion of cer- 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 Ib. ART. 3. 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. S 100. If the trustee of a power, with the right of selection, When chanshall die, leaving the power unexecuted, its execution shall be cute power. decreed in equity for the benefit equally of all the persons designated, as objects of the trust. 25 B., 399; 5 Pai., 468; 3 S. S. C., 559; 2 S. S. C., 515. cery to exe S 101. Where a power in trust is created by will, and the г. testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery. 5 N. Y., 139. of certain $ 102. The provisions contained in the second Article of Application this Title, from section sixty-six to section seventy-one, both prior secinclusive, in relation to express trusts and trustees, shall apply equally to powers in trust, and the grantees of such powers. 25 B., 100. tions. [735] Execution $103. The execution in whole or in part, of any trust power, may be decreed in equity, for the benefit of the trut creditors or assignees of any person entitled as one of the power when objects of the trust, to compel its execution, when the interest by credit of the objects of such trust is assignable. compelled ors, &c. powers, fected by S104. Every beneficial power, and the interest of every Beneficial person entitled to compel the execution of a trust power, shall &c., how af pass to the assignees of the estate and effects of the person insolvent in whom such power or interest is vested, under any assign- ments, &c. ment authorised by the provisions of the fifth Chapter of this Act. assign of powers in S 105. The grantor in any conveyance, may reserve to Reservation himself any power, beneficial or in trust, which he might conveylawfully grant to another; and every power thus reserved, ances. shall be subject to the provisions of this Article, in the same manner as if granted to another. 12 N. Y., 404. S106. A power may be granted, How pow ers to be 1. By a suitable clause contained in a conveyance of some granted. estate in the lands, to which the power relates: 2. By a devise contained in a last will and testament. 5 N. Y., 413; 2 S. S. C., 580. ers to be S107. Every power shall be a lien or charge upon the lands When powwhich it embraces, as against creditors and purchasers in good recorded. faith and without notice, of or from any person having an estate in such lands, only from the time the instrument containing the power shall be duly recorded. As against all other persons, the power shall be a lien from the time the instrument in which it is contained, shall take effect. ers irrevo $108. Every power, beneficial or in trust, is irrevocable, When powunless an authority to revoke it, is granted or reserved in the cable. instrument creating the power. 12 N. Y., 404; 1 B., 62; 2 B., 58; 23 B., 498. TITLE 2. Who to ex S109. A power may be vested in any person capable in law ecute pow- of holding, but cannot be exercised by any person not capable, of aliening lands, except in the single case mentioned in the next section. ers. Married women. Ib. Execution by survivors, &c. How executed. [736] Instru. ments deemed conveyances, Execution of power to 10 B., 604. S 110. A married woman may execute a power during her marriage, 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. 15 N. Y., 307; 12 N. Y., 423; 27 B., 332; 1 B. Ch., 13, 240; 10 B., 597. S 111. No power vested in a married woman, during her infancy, can be exercised by her, until she attains her full age. S 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. 11 N. Y., 397; 1 N. Y., 358; 1 B. Ch., 569; 2 Pai., 197. $113. No power can be executed except by some instrument in 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. 11 N. Y., 398. S 114. Every instrument, except a will, in execution of a power, and although the power may be a power of revocation only, shall be deemed a conveyance within the meaning, and subject to the provisions, of the third Chapter of this Act. 12 N. Y., 404. S115. Where a power to dispose of lands is confined to a dispose by disposition by devise or will, the instrument of execution must be a will duly executed, according to the provisions of the sixth Chapter of this Act. devise. Ib. to dispose by grant. Married women to acknowledge executions. Directions 10 B., 597. S 116. Where a power is confined to a disposition by grant, it cannot be executed by will, although the disposition is not intended to take effect until after the death of the party executing the power. 4 N. Y., 11; 4 B., 412; 3 B., 128. $117. If a married woman execute a power by grant, the concurrence of her husband, as a party, shall not be requisite, but the grant shall not be a valid execution of the power, unless it be acknowledged by her on a private examination, in the manner prescribed in the third Chapter of this Act, in relation to conveyances by married women. $118. Where the grantor of a power shall have directed or by grantor. authorised it to be executed by an instrument not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules before prescribed in this Article. ART. 3. $119. When the grantor shall have directed any formalities Directions to be observed in the execution of the power, in addition to by grantor. those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power. conditions. $120. Where the conditions annexed to a power are merely Nominal nominal, and evince no intention of actual benefit to the party to whom, or in whose favor, they are to be performed, they may be wholly disregarded in the execution of the power. $121. With the exceptions contained in the preceding When disections, the intentions of the grantor of a power, as to the grantor to mode, time and conditions of its execution, shall be observed, ed." subject to the power of the court of chancery, to supply a defective execution, in the cases herein after provided. 2 D., 61. rections of be observ third per power. S 122. When the consent of a third person to the execution Consent of of a power is requisite, such consent shall be expressed in the sons to exeinstrument by which the power is executed, or shall be certified cution of in writing thereon. In the first case, the instrument of execution, in the second, the certificate, shall be signed by the party whose consent is required; and to entitle the instrument to be recorded, such signature must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of lands. 11 N. Y., 401. [737] Certain dis S123. No disposition, by virtue of a power, shall be void in law or in equity, on the ground that it is more extensive positions, than was authorised by the power; but every estate or inter- not void. est so created, so far as embraced by the terms of the power, shall be valid. to recite S 124. Every instrument executed by the grantee of a Omission power, conveying an estate or creating a charge, which such power. grantee would have no right to convey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein. $125. Instruments in execution of a power are affected by Fraud. fraud, both in law and equity, in the same manner as conveyances by owners or trustees. devise, how terms of $126. Lands embraced in a power to devise, shall pass by Power to a will purporting to convey all the real property of the testa- executed by tor, unless the intent that the will shall not operate as an will. execution of the power, shall appear, expressly or by necessary implication. 25 B., 564. tates to be S 127. Every estate or interest given by a parent to a Certain es descendant, by virtue of a beneficial power, or of a power in advancetrust with a right of selection, shall be deemed an advance- ments. ment to such descendant, within the provisions of the second Chapter of this Act. Computa S128. The period during which the absolute right of tion of term |