The Old Law Relating to Leases by Trustees. At the common law a trustee's power to lease (in the absence of an express leasing power) depended primarily on the quantity and the quality of the trustee's legal estate. If he had a fee he might make leases of any duration.50 So, if it was an express trust to lease indefinitely, the nature of the trust was such that a fee in trustee was implied.60 But if the trustee had only an estate pur autre vie, then (in the absence of an express power) the implied power to lease was limited correspondingly.

61

Tenant for Life. A tenant for life or pur autre vie could not at common law make leases to last beyond his own life in the one case, or that of cestui que vie in the other,62 and such remains the law at present.63

Tenants in Tail. An ancient English statute enabled tenants in tail to make leases for three lives or twenty-one years.

Corporations. Corporations holding in fee were restricted to the same period by certain other ancient statutes.64

Tenant for Life. If tenant for life created an estate greater than his own, it formerly worked a forfeiture of his estate.65 The Revised Statutes altered the last stated rule by providing that such a conveyance by a tenant for life of a greater estate than his own should not work a forfeiture, but be operative to pass the tenant's interest only.66

Former Law Relating to Leases by Life Tenants. When tenant for life could not make leases for any certain time, or beyond his own life, it became usual to insert a power of leasing in any well-drawn settlement, limited by way of use, and such a power to lease for

59 Nalor v. Arnitt, 1 Russ. & M. 501; Greason v. Kettletas, 17 N. Y. 491; Comyn, Landl. & Ten. 22; Hedges v. Riker, 5 Johns. Ch. 163; Woodfall, Landl. & Ten. (16th ed.) 36.

60 Doe v. Willan, 2 Barn. & Ald. 84; sed cf. Ackland v. Lutley, 9 Ad. El. 879; Dyeing & Printing Estab. v. De Westenberg, 46 Hun, 281; affd., Daily Reg., Feb. 19, 1886; Hawley v. James, 16 Wend. at pp. 153-155.

61 As in Jones v. Lord Say & Seale, 8 Viner's Abr. 262.

62 Doe v. Butcher, 1 Doug. 50; Co. Litt. 47b; Taylor, Landl. & Ten.,

63 Matter of City of New York (10th Street), 81 App. Div. 27; Mulligan v. Cox, 26 Misc. Rep. 709, 711, and see under § 143, infra.

64 See above, under § 30.

65 Cruise, Dig. tit. 5, chap. 2, § 31, note; 2 Black. Comm. 274. Alienations by tenants by the curtesy or in dower regulated by 6 Edw. I, chap. 3; 32 Hen. VIII, chap. 28 re-enacted in New York in 1787, 2 J. & V. 98, IOI; I K. & R. 44; 1 R. L. 52.

661 R. S. 739, § 145; Sparrow v. Kingman, 1 N. Y. 242, 257; Moore v. Littel, 41 id. 66, 78; § 247, infra.

any length of time was good against reversioners or remaindermen.67 But a lease under a power must conform to the power, or it was void in law,68 but good in equity, at least to the actual extent of the power.69

New York Law. Prior to the year 1830, excepting for a period of four years from 1782 to 1786, there seems to have been, in the State of New York, no statutory general restriction upon the power of tenants in fee simple to grant leases.70 The Revised Statutes provided that a power might be granted to tenants for life to make leases of the estate granted for not more than twenty-one years, to commence in possession at any time during such tenants' life. If a trustee had a life estate, he was within the section last denoted.72

Trustees' Leasing Power. The case of Weis v. Barker 73 holds that this section of the Real Property Law was intended to extend and not to restrict the leasing powers of trustees of certain express trusts created before 1896, and consequently that leases by such trustees for terms longer than five years are not void if made without application to the court. But certainly, in view of the unsettled state of the law regulating the quantum of the estates of trustees of trusts created under the 3d subdivision of section 96 of this act, in every case where there is no express leasing power, an application to the court on a trustee's lease beyond five years is desirable. The law concerning the quantum of a trustee's estate under the 3d subdivision of section 96 of this act, is not so definitely determined as it should be eighty years after the Revised Statutes.

On any conveyance or devise to trustees, the power of the trustees to grant leases depends primarily on the question whether or not they take a fee, or an estate pur autre vie.74 If the conveyance to them contain a power to trustees to make leases of any duration

67 Cruise, Dig. tit. 32, chap. 15, § 1. 68 Roe ex dem. Brune v. Prideaux, 10 East, 184; et infra, under § 136, Real Prop. Law.

69 Powcey v. Bowen, 1 Chan. Cas. 23; Campbell v. Leach, Amb. 740; cf. § 136, infra; Newton v. Jay, 107 App. Div. 457.

70 Chap. 2, Laws of 1782, confined terms of years to twenty-one. But this act was soon repealed, chap. 12, Laws of 1786. By 2 R. L. 267, Columbia College was restricted to

leases for sixty-three years (2 R. L. 267; and see above, pp. 157, 161; but a lease for lives could not begin in futuro. 2 Sugd. Pow. 344.

71 I R. S. 733, § 87; § 143, infra, Real Prop. Law.

72 See the discussion on this point, supra, pp. 324, 442, 488.

73 104 App. Div. 112; Steuber v. Huber, 107 id. 599.

74 Supra, pp. 324, 488, and see note, 21 Harv. Law Rev. 211.

beyond twenty-one years, then the question arises how far this power is controlled by section 123 of this act,75 restricting tenants for life to leases for twenty-one years. If the settlement is made since 1895, then whether the act of 1895 or this section applies to an express trust with power to make ieases beyond five years, will also have to be considered. The language of this section (106) would seem to confine its operation to those trusts which arise under the 3d subdivision of section 96 of this act, and not to refer to trustees of the trusts arising under the 2d subdivision of section 96.77 It has been held that trustees under the 2d subdivision of section 96 of this act take a fee simple,78 and, therefore, that they may make leases of any duration. 79

If trustees, under the 3d subdivision of section 96, have a base fee, then they undoubtedly fall within the general rule that tenants in fee may make leases of urban lands of definite duration, but subject to the determination of the base fee, under the maxim cessante statu primitivo, cessat derivativus.80 As the base fee

must determine at the expiration of the trusts, the lease could not exceed two lives, which would be an argument for the construction that trustees of such trusts take an estate pur autre vie, and not a qualified or base fee, were it not that the statute vests in the trustee the legal estate, "or the whole estate." 81 If such trustees have only an estate pur autre vie, then certainly the leases may not extend beyond the lives of cestuis que vie,82 independently of the act of 1895 and this section, which are enabling acts, and under them trustees of an estate pur autre vie are authorized to make leases for five years, which will be good against the remaindermen. In a case where the trustee has a fee with general leasing powers, the act of 1895 and this section would be simply supererogatory, and may be construed as intended for the.

75 Real Prop. Law; cf. 1 R. S. 733, § 87.

76 Supra, pp. 438, 450.

77 Supra, pp. 438, 448.

78 Supra, pp. 438, 450.

79 Hawley v. James, 16 Wend. at pp. 153, 155; Matter of McCaffrey, 50 Hun, 371, 375; Corse v. Corse, 144 N. Y. 569, 572; Paollichi v. American Telephone & Telegraph Co., 119 App. Div. 609, 611; cf. Greason v. Kettletas, 17 N. Y. 491, as to common law. 80 Challis, 51, 254; Matter of City

of New York (110th Street), 81 App. Div. 27, 32; Weir v. Barker, 104 id. 112, 115; Pratt v. Clark, 118 id. 633.

81 § 100, Real Prop. Law, supra; cf. § 109, infra.

82 Matter of City of New York (10th Street), 81 App. Div. 27; Matter of McCaffrey, 50 Hun, 371, 374; Gomez v. Gomez, 147 N. Y. 195, 200; Matter of Hoysradt, 20 Misc. Rep. 265; Matter of Armory Board, 29 id. 174, 30 Code Civ. Proc. R. 123.

84

general protection of such trustees. The uncertainty of the power of trustees under the 3d subdivision of section 96 to make leases of definite duration,83 has received emphasis in one or more cases where tenants questioned trustees' power to make leases for years. The abstract question was not, however, decided. In view of the uncertainty denoted, every well drawn settlement of a trust under the 3d subdivision of section 96 of this act should contain an express leasing power to trustees to make leases for long terms of years, or building leases, if such a course is desired by the settlor of the estate. If the trustee, without a special power, can make a lease of five years, he has power to make it for fifty years without application to the court, but if his estate is one pur autre vie, he cannot make leases to last beyond the life of cestui que vie, except under this section.

Is this Section Retroactive or Unconstitutional? How far this section, or chapter 886, Laws of 1895, is retroactive and may lawfully empower trustees to make leases to bind vested estates in remainder, or those future estates limited to take effect after the trustees' own estate has terminated, is sometimes questioned on constitutional grounds.85 The acts enabling life tenants to make leases to bind reversioners and remaindermen are, however, very well known in the common law, and as, where a rent is reserved, it runs with the reversion, it is difficult to perceive how a power of this kind may be said to infringe vested rights. Where the rights in remainder are limited expressly subject to a power to lease, the power overrides the estate in remainder, or the remainder is subject to the power.

This Section Does not Enable Leases of Agricultural Lands Prohibited by the Constitution. As the Constitution restricts leases of agricultural lands to terms of twelve years,86 this section clearly cannot enable trustees of such lands to make leases beyond twelve years, even pursuant to an order of the court, provided for in this section.

Code of Civil Procedure. The section of the Code of Civil Procedure relative to the lease of property of infants and other incompetent persons seems to have no direct reference to leases by trustees of an express trust.

87

83 See the doubt expressed on the contract in Niederstein v. Cusick, 83 App. Div. 36, 178 N. Y. 543.

84 In re Duncan, N. Y. L. J., Feb. 28, 1902, Truax, J.; but see Matter of City of New York (110th Street), 81 App. Div. 27; Neiderstein v. Cusick, 178 N. Y. 543; Weir v. Barker, 104

App. Div. 112; Steuber v. Huber, 107 id. 599.

85 Chapl. Exp. Trusts & Pow., 8 462; Weir v. Barker, 104 App. Div.

I12.

86 Supra, p. 82, 160.

87 § 2348, Code Civ. Proc. and chap. 154, Laws of 1903.

§ 107. Notice to beneficiary and other persons interested where real property affected by a trust is conveyed, mortgaged or leased, and procedure thereupon. The supreme court shall not grant an order under either of the last two preceding sections unless it appears to the satisfaction of such court that a written notice stating the time and place of the application therefor has been served upon the beneficiary of such trust, and every other person in being having an estate vested or contingent in reversion or remainder in said real property at least eight days before the making thereof, if such beneficiary or other person is an adult within the state, or if a minor, lunatic, person of unsound mind, habitual drunkard or absentee, until proof of the service on such beneficiary or other person of such notice as the court or a justice thereof prescribes. The court shall appoint a guardian ad litem for any minor and for any lunatic, person of unsound mind or habitual drunkard who shall not be represented by a committee duly appointed. The application must be by petition duly verified which shall set forth the condition of the trust estate and the particular facts which make it necessary or proper that the application should be granted. After taking proof of the facts, either before the court or a referee, and hearing the parties and fully examining into the matter, the court must make a final order upon the application. In case the application is granted, the final order must authorize the real property affected by the trust or some portion thereof, to be mortgaged, sold or leased, upon such terms and conditions. as the court may prescribe. In case a mortgage or sale of any portion of such real property is authorized, the final order must direct the disposition of the proceeds of such mortgage or sale and must require the trustee to give bond in such amount and with such sureties as the court directs, conditioned for the faithful discharge of his trust and for the due accounting for all moneys received by him pursuant to said order. If the trustee elects not to give such bond, the final order must require the proceeds of such mortgage or sale to be paid into court to be disposed of or invested as