ARTICLE 5. Powers. SECTION 130. Effect of article. 131. Definition of a power. 132. Definitions of grantor, grantee. 134. General power. 135. Special power. 136. Beneficial power. 137. General power in trust. 138. Special power in trust. 139. Capacity to grant a power. 140. How power may be granted. 141. Capacity to take and execute a power. 142. Capacity of married woman to take power. 143. Capacity to take a special and beneficial power. 144. Reservation of a power. 145. Effect of power to revoke. 146. Power to sell in a mortgage. 147. When power is a lien. 148. When power is irrevocable. 149. When estate for life or years is changed into a fee. 150. Certain powers create a fee. 151. When grantee of power has absolute fee. 152. Effect of power to devise in certain cases. 153. When power of disposition absolute. 154. Power subject to condition. 155. Power of life tenant to make leases. 156. Effect of mortgage by grantee. 157. When a trust power is imperative. 158. Distribution when more than one beneficiary. 159. Beneficial power subject to creditors. 160. Execution of power on death of trustee. 161. When power devolves on court. 162. When creditors may compel execution of trust power. 163. Defective execution of trust power. 164. Effect of insolvent assignment. 165. How power must be executed. 166. Execution by survivors. 167. Execution of power to dispose by devise. 168. Execution of power to dispose by grant. 169. When direction by grantor does not render power void. 170. When directions by grantor need not be followed. 171. Nominal conditions may be disregarded. 172. Intent of grantor to be observed. 173. Consent of grantor or third person to execution of power. 174. When all must consent. 175. Omission to recite power. 176. When devise operates as an execution of the power. SECTION 177. Disposition not void because too extensive. 182. Sections applicable to trust powers. §130. Effect of article. Powers, as they existed by law on the thirty-first day of December, eighteen hundred and twentynine, are abolished. Hereafter the creation, construction and execution of powers, affecting real property, shall be subject to the provisions of this article; but this article does not extend to a simple power of attorney to convey real property in the name and for the benefit of the owner. Formerly section 110, Real Property Law of 1896, chapter XLVI, General Laws: § 110. Effect of article.- Powers, as they existed by law on the thirtyfirst day of December, eighteen hundred and twenty-nine, have been abolished. Hereafter the creation, construction and execution of powers, affecting real property, shall be subject to the provisions of this article; but this article does not extend to a simple power of attorney, to convey real property in the name, and for the benefit of the owner.7 Formerly Revised Statutes, 732, section 73, and 1 Revised Statutes, 738, section 134: $73. Powers, as they now exist by law, 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 of this Article.8 $134. The provisions of this Article shall not extend to a simple power of attorney, to convey lands in the name, and for the benefit, of the owner.9 Comment on Section. This section, in its original form, abolished the common-law rules concerning powers over estates in lands.10 It is obvious that not all powers are so abolished, but those only which were connected with property or estates; in other words, technical "powers" or the powers of the lawyers, not the "powers" of the laymen, are affected by this legislation. Before taking up our consideration in detail of this article 11 in both its original 7 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 8 Repealed, chap. 547, Laws of 1895. 9 Repealed, chap. 547, Laws of 1896. 10 As the Revised Statutes and the General Real Prop. Law of 1896 are repealed, it is now this section which abolishes the common law touching "Powers." See note 19, Appendix I, infra. 11 The Article on Powers. and amended forms, let us briefly consider what was meant by "powers" and the place which they occupied in the common law of estates in lands. The com "Powers" before 27 Henry VIII. Prior to the Statute of Uses 27 Hen. VIII, chap. 10) "powers were known only in equity. The semi-feudal law of land which then prevailed in the law courts took no notice of them.12 But in equity, where land was conveyed to feoffees for uses, the donor or feoffor might reserve a power to himself to declare or appoint the future uses, or he might even grant this power to a stranger, and these powers equity would enforce, for such powers were in the nature of trusts.13 mon law of land was thus again evaded by a refinement.14 "Powers" after the Statute of Uses. When the Statute of Uses finally fastened the legal estate to the equitable use, with all its varied incidents, the equitable doctrines of powers passed into the common law of estates in lands.1 These equitable doctrines were much amplified in course of time, by judicial exposition and decisions, and finally "powers" became the most abstruse branch of legal learning. 16 Even Sugden's masterly treatise, published in the last century, failed to make the learning on powers easy of acquisition. The difficulty lay in the application of particular doctrines to complex settlements; for nearly every settlement in England, between 1691 and 1800, contained a power of revocation or a power of appointment. Sir Edward Coke states that powers of revocation were common in his time.18 17 Powers of Revocation. 15 Powers of revocation, which were in use in voluntary settlements prior to the Statute of Uses,19 were recog nized at law subsequently to the Statute of Uses.20 But after the Statute of 27 Elizabeth, chapter 4, made powers of revocation fraudulent, as to purchasers, they fell into disuse in voluntary settlements.2 21 Powers of appointment, or those powers which limited future uses, continued to prevail in practice. In settlements founded on a good or valuable consideration, or not fraudulent under the statutes, powers of revocation were and still are in use.22 For example, a power of revocation and appointment to new uses to take effect on a proposed marriage may still be inserted in a marriage settlement. Powers of revocation are in a sense the antithesis of powers of appointment.23 Introduction of "Powers" in New York, When the English law of estates and the socage tenure were introduced in New York in the year 1664, powers were probably much less used in settlements of estates in England than they were a half-century later.24 As the Statute of Uses was in force in New York, the contemporaneous English law of powers was distinctly relevant to all estates held by the socage tenure, and consequently there was nothing to prevent the application of the law of powers to settlements of estates. in New York.25 But in a new country the refinements of conveyancing are rarely resorted to, as the tendency of all colonies and new plantations is to resort to primitive social conditions and, consequently, to the more primitive stages of the national law. Thus, we find it generally admitted by the early law writers of this country that the English law concerning powers was less frequently applied in America, in practice, than any other doctrine of the English common law.26 That this remained true of New York, even in 1829, there can be no doubt, for the fact was so publicly stated by the original revisers of the present statute in their note to the Article on Powers.27 Yet, as powers were a part of the com 20 Co. Litt. 237a. 211 Sand. Uses, 171, 172; § 231, Real Prop. Law. 22 Belmont v. O'Brien, 12 N. Y. 394, 404; Matter of Masury, 28 App. Div. 580, 582; affd., 159 N. Y. 532; Matter of Bostwick, 160 id. 489, 492; Schreyer v. Schreyer 43 Misc. Rep. 520, 101 App. Div. 456; Newton v. Jay, 107 id. 457; § 267, Real Prop. Law; cf. Gibbs v. N. Y. Life Ins., etc., Co., 13 Abb. N. C. I. 23 Strahan, Prop. 174. 24 Supra, P. 47. 25 Prior to the War of Independence, and for some time after, all estates were of this tenure in New York. See above, p. 57, and Cutting v. Cutting, 86 N. Y. at p. 529. 26 4 Greenl. Cruise, 181, note; 4 Kent, Comm. 315. 27 See that note infra, Appendix III. Even in 1855 Mr. Lalor refers to the little practical importance of the law of powers. Lalor, Real Prop. 206. mon law of estates prior to the Revised Statutes, such common law of Powers was, in legal theory, made a part of the common law of the State of New York by the provisions of the successive Stat Constitutions.28 The Article on Powers in the Revised Statutes was substituted in the place of the relevant portions of the common law concerning Powers. Powers before the Revised Statutes. Let us next consider, briefly, the nature of the powers thus swept away by the Revised Statutes. At common law, and before the adoption of the Revised Statutes, "powers were commonly divided into (1) common-law powers, (2) equitable powers, (3) powers operating under the Statute of Uses.29 Common-law powers were authorities given to one person by another to do an act for the donor. Powers of attorney30 and powers conferred by acts of the Legislature31 were common-law powers. Equitable powers referred wholly to powers over equitable interests.32 34 Powers Operating under the Statute of Uses. Powers operating under the Statute of Uses were either powers to declare future uses or to revoke existing uses.33 When such future uses were duly declared, or duly revoked, the uses themselves were executed in possession by force of the Statute of Uses. The last class of powers then are those intended to be swept away or abolished by the Revised Statutes, although Chancellor Kent states, if taken literally, that the Revised Statutes abolished even common-law powers.35 But it will be observed that powers of attorney were and are expressly excepted from the operation of the Article on Powers,36 while powers conferred by an act of the Legislature have never been subjected in practice to the Revised Statutes.37 So that it is not accu 28 Const. of 1777, § 35; Const. of 1821-1823, art. VII; Cutting v. Cutting, 86 N. Y. 522, 529. 29 This is the classification of the editors of Coke on Littleton, than whom there is no higher authority. See index to their Notes on Powers. 30 It is the execution of powers of attorney, not their creation, which effects the transmutation of estates. Hence, they are mere common-law authorities, not "powers," in a technical sense. 31 Cf. I Chance, Pow. 2; Whart. Conv. 419; Farw. Pow. 1, 2; 1 Sugd. Pow. 1; Crabb, Law of Real Prop., § 1959. |
