R. S. of N. Y.,
Art. 3, Title 2,
Chap. 1, Part 2.

Powers, except as

provided for in

abolished.

Chapter Sixty-Four of Revised Statutes of 1846.

(2658.) SECTION 1. Powers, except as authorized and pro

this Chapter, vided for in this chapter, are abolished; and from the time this chapter shall be in force, the creation, construction and execution of powers, shall be governed by the provisions herein contained.

Definition of Pow

er.

Who incapable of granting a Power.

Division of Pow

ers.

Definition of General Powers.

Definition of Spe

cial Powers.

Beneficial Pow

ers.

Powers to Mar

ried Women.

Estate of Tenant for life, etc.,

into a fee.

(2659.) SEc. 2. A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power, might himself lawfully perform.

(2660.) SEC. 3. 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.

(2661.) SEC. 4. Powers as authorized in this chapter, are general or special, and beneficial or in trust.

(2662.) SEC. 5. 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 whatever. (2663.) SEC. 6. A power is special:

1. When the person or class of persons to whom the disposition of the lands under the power is to be made, are designated;

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.

(2661.) SEC. 7. A general or special power is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution.

(2665.) SEc. 8. A general and beneficial power may be given to a married woman, to dispose during the marriage, and without the concurrence of her husband, of lands conveyed or devised to her in fee.

(2666.) SEC. 9. When an absolute power of disposition, not when changed 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 respect to the rights of creditors and purchasers, 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.

Certain Powers create a fee, etc.

(2667.) SEC. 10. When 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 thereon, but absolute in respect to creditors and purchasers.

create a fee, etc.

(2668.) SEC. 11. In all cases where such power of disposition Certain Powers 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.

to devise the in

tain cases.

(2669.) SEC. 12. When a general and beneficial power to Efect of Power devise the inheritance, shall be given to a tenant for life or heritance in cerfor 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.

be deemed abso

(2670.) SEC. 13. Every power of disposition shall be deemed What Powers to absolute, by means of which the grantee is enabled, in his life-late. time, to dispose of the entire fee for his own benefit.

(2671.) SEC. 14. When the grantor in any conveyance shall Power to revoke 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.

(2672.) Sec. 15. A special and beneficial power may be special and Benegranted:

1. To a married woman, to dispose, during the marriage, and without the consent 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 leases for not more than twenty-one years, and to commence in possession during his life.

ficial Powers, who may take.

Leases by Tenant

(2673.) Sec. 16. The power of a tenant for life to make rower to make leases, is not assignable as a separate interest, and will pass, bine. unless specially excepted, by any conveyance of such estate; and if specially excepted in any such conveyance, it is extinguished.

Power.

(2674.) SEC. 17. Such power may be released by the tenant Release of such to any person entitled to an expectant estate in the lands, and shall thereupon be extinguished.

ty having Power

(2675.) SEC. 18. A mortgage executed by a tenant for life Mortgage by parhaving a power to make leases, or by a married woman by to lease, etc. virtue of any beneficial power, does not extinguish or suspend the power; but the power is bound by the mortgage, in the same manner as the lands embraced therein.

Effect of Mortgage on Power.

Future Beneficial
Powers.

Beneficial Powers liable to Creditors.

General Powers when in Trust.

Special Powers, when in Trust.

Trust Powers imperative.

selection.

(2676.) SEC. 19. 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.

(2677.) SEC. 20. No beneficial power, general or special, hereafter to be created, other than such as are enumerated and defined in the preceding sections of this chapter, shall be valid.

(2678.) SEC. 21. Every special and beneficial power is liable in equity to the claims of creditors, in the same manner as other interests 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.

(2679.) SEC. 22. 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 arise from the alienation of the lands according to the power.

(2680.) SEC. 23. A special power is in trust:

1. When the disposition which it authorizes, is limited to be made to any particular 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 entitled to any benefit from the disposition or charge authorized by the power.

(2681.) SEC. 24. Every trust power, unless its execution or non-execution 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 right of (2682.) SEc. 25. A trust power does not cease to be imperative when the grantee has the right to select any, and exclude others of the persons designated as the objects of the trust.

Powers in certain cases.

Construction of (2683.) SEC. 26. When 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.

Powers in certain

(2684.) SEC. 27. But when the terms of the power import Construction of that the estate or fund is to be distributed between the persons cases. 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 others.

to execute Pow

(2685.) SEC. 28. If the Trustee of a power, with the right of When Chancery selection, shall die leaving the power unexecuted, its executioners. shall be decreed in the Court of Chancery for the benefit equally of all the persons designated as objects of the trust. (2686.) SEC. 29. When a power in trust is created by will, Ibid. and the testator has omitted to designate by whom the power is to be executed, its execution shall devolve on the Court of Chancery.

certain Sections

Chapter.

(2657.) SEC. 30. The provisions contained in the next pre- Application of celing chapter, from section twenty-two to section twenty- of preceding seven, both inclusive, in relation to express trusts and Trustees, shall apply equally to powers in trust, and the grantees of such powers.

Trust Power

by Creditors, etc.

(2688.) SEC. 31. The execution, in whole or in part, of any Execution of trust power, may be decreed in Chancery for the benefit of when compelled 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.

ers, etc., how afAssignments.

(2689.) SEC. 32. Every beneficial power, and the interest of Beneficial Powevery person entitled to compel the execution of a trust fected by certain power, shall pass to the assignees of the estate and effects of the person in whom such power or interest is vested, under any general assignment of the estate and effects of such person for the benefit of creditors, made pursuant to law.

Powers in con

(2690.) SEC. 33. The grantor in any conveyance may reserve Reservation of to himself any power, beneficial or in trust, which he might veyances. lawfully grant to another; and every power so reserved, shall

be subject to the provisions of this chapter, in the same manner as if granted to another.

(2691.) SEC. 34. A power may be granted:

1. By a suitable clause contained in the conveyance of some How Powers to estate, in the lands to which the power relates;

be granted.

ers, effect of.

2. By a devise contained in a last will and testament; (2692.) SEC. 35. Every power shall be a lien or charge upon Recording Pow the lands which it embraces, as against creditors and purchasers in good faith, and without notice of or from any person having an estate in such lands, only from the time the