ÆäÀÌÁö À̹ÌÁö
PDF
ePub

§ 131. Definition of a power. A power is an authority to do an act in relation to real property, or to the creation or revocation of an estate therein, or a charge thereon, which the owner, granting or reserving the power, might himself lawfully perform.

Formerly section 111, Real Property Law of 1896, chapter XLVI, General Laws:

§ III. Definition of a power.- A power is an authority to do an act in relation to real property, or to the creation or revocation of an estate therein, or a charge thereon, which the owner, granting or reserving the power, might himself lawfully perform.64

Section III was formerly 1 Revised Statutes, 732, section 74:

874. 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 law fully perform.65

Definition of a "Power." Common-law jurisprudents differ in their definition of a power.66 But it is apprehended that such differences are neither wide nor essential. They all agree that a power is a liberty or an authority reserved by or limited to a person, enabling him to dispose of real or personal property for his own benefit or the benefit of another, and operating upon an estate or interest vested either in himself or in some other person; the liberty or authority, however, not being derived out of such derivative estate or interest, but over-reaching it or superseding it, either wholly or partially. The word "power" when used in connection with estates in lands or tenements is generally a technical term. It is a delegated authority cut out of a fee, which embraces all powers.68 It may be said to denote an inseparable attribute of complete dominion over property, according to the rules of the common law.

67

Crabb, adopting a definition of Wilmot,69 states that powers differ from trusts in that powers are never imperative; they leave the act to be done at the will of the party to whom they were given.70 At law powers were never imperative, but in equity when the power was for the benefit of another besides the donee of the power, it was regarded as a trust of a power,71 or as we now say "a power in

64 Repealed by Real Prop. Law of 1909, 8460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

65 Repealed, chap. 547, Laws of 1896.

66 Will. Real Est. & Conv. 249. 671 Chance, Pow. 1; Whart. Conv. 419; 1 Sugd. Pow. 1; Crabb, Real Prop., 1959.

68 Hetzel v. Barber, 69 N. Y. 1, 7; Jennings v. Conboy, 73 id. 230; Fay v. Taylor, 31 Misc. Rep. 32. 69 Wilmot's Opin. 23. 70 Crabb, Real Prop., § 1059. 71 Story, Eq. Juris., § 1061.

trust." 72 Thus in the old law there were mere powers which were not trusts,73 and powers in the nature of trusts, and the latter powers were imperative.74 This division was not, however, exhaustive, as there were powers compounded of both classes, as where there was a trust to be effected by a power.75

76

Definition of the Statute. The above definition, by the Revised Statutes, of a technical "power" does not differ materially from that known to the common law. Yet it is wide enough to define an express trust which includes a power and more.77 A power under this act must always be such as the donor, or grantor, may himself lawfully perform.78 It is also indispensable to its creation that the object or objects to be accomplished by a power shall be specified in the instrument of its creation.79 The essential similarity between powers since the Revised Statutes and powers before the Revised Statutes is then apparent. Both are either powers of appointment or powers of revocation. Both are either "restraining powers," i. e., powers reserved to owners; or "enabling pow ers," i. e., powers enabling persons not enjoying a right of dominion to exercise a deminion sub modo.

What Acts now Valid as "Powers." What acts may be valid as powers, the Article on Powers does not attempt to specify,80 but certain former beneficial powers are now void.81

What Words Necessary to Create Powers. No set form of words is necessary to create or reserve a power,82 and such was the rule at common law.83

72 See below, §§ 138, 157.

73 Sugd. Pow. 158; Farw. Pow. 463; Towler v. Towler, 142 N. Y. 371, 376; Cutting v. Cutting, 20 Hun, 360, 369.

V.

74 Farw. Pow. 463; Brown Higgs, 8 Ves. 561; Harding v. Glyn, 1 Atk. 469; 2 Sugd. Pow. 158.

75 2 Sugd. Pow. 158.

76 See this section 131, supra; 1 R. S. 732, 74, supra.

77 Selden v. Vermilya, 3 N. Y. 525, 536; Murray v. Miller, 173 id. 316.

78 Woerz v. Rademacher, 120 N. Y. 62, 68; Hillen v. Iselin, 144 id. at p. 380; Root V. Stuyvesant, 18 Wend. at p. 265; Murray v. Miller, 178 N. Y. 316; Matter of Kellogg, 187 id. 355.

79 Sweeney v. Warren, 127 N. Y.

80 Downing v. Marshall, 23 N. Y. at p. 380; Belmont v. O'Brien, 12 id. at p. 403; Read v. Williams, 125 id. at p. 569; Hillen v. Iselin, 144 id. at p. 380.

81 § 136, Real Prop. Law.

82 Dorland v. Dorland, 2 Barb. 63, 80: Hubbard v. Gilbert, 25 Hun, 596; Goetz v. Ballou, 64 id. 490; Towler v. Towler, 142 N. Y. 371, 374; Cahill v. Russell, 140 id. 402; Meehan v. Brennen, 16 App. Div. 396; Salisbury v. Slade, 160 N. Y. 278, 289; cf. Jennings v. Conboy, 73 id. at p. 234, as to powers created by deed, and see pp. 443, 483, as to powers in trust.

83 I Chance, Pow. 31; 1 Sugd. Pow. 117; Farw. Pow. 48; Strahan, Prop. 171.

Powers cannot Suspend Alienation Unlawfully. Powers are subject to the rule against perpetuities,84 and for the purpose of computing the time in which alienation may be lawfully suspended by a power, the power relates back to the time when the instrument creating it took legal inception.85

88

What "Powers" can be Delegated. As all powers are cut out of that aggregation or bundle of rights, known in the English common law as a "fee," both the doctrines of relation (whereby an estate created under a power relates back, in point of time, to the instrument creating the power) 86 and of agency apply to "Powers." 87 Thus the power must be strictly pursued and not deviated from.8 It is a principle of the law of agency, "delegata potestas non potest delegare," or, as otherwise expressed, "vicarius non habet vicarium.80 This principle applies to the execution of those "powers which repose a personal trust or confidence in the donee of the power.90 But this doctrine does not apply to those powers which, in their nature, are neither personal nor a trust or confidence, for the execution of such may be delegated.91 A grantee of a power may employ attorneys to do ministerial acts, and this is not the delegation of a power.92

Title of Appointee. It is true that the title of an appointee may vest in interest at the time of the execution of the power of appointmen, but it relates back and is acquired under the instrument creating the power.93

Cy Pres Doctrine. The doctrine of cy pres does not apply to powers in this State 94 unless the power is now one to appoint to charitable or religious uses, when a more liberal rule is made applicable by statute.95

84 See below, under § 137 of this act. 85 Genet v. Hum, 113 N. Y. 158; Townsend v. Frommer, 125 id. 460. 461; Farmers' Loan & Trust Co. v. Kip, 120 App. Div. 347; affd., 192 N. Y. 266, 285; Salmon v. Stuyvesant, 16 Wend. 324; 1 R. S. 737, § 128, now $178, Real Prop. Law, q. v. 86 § 178, Real Prop. Law.

87 Hillen v. Islin, 144 N. Y. at

p. 374.

88 Pawling Savings Bank v. Washburn, 50 App. Div. 526.

89 Broom, Leg. Max. (ed. 1848, Lond.) 665.

901 Sugd. Pow. 213: Newton v. Bronson, 13 N. Y. 587, 593; Coleman v. Beach, 97 id. 545, 559; Campbell v. Jennings, 22 Misc. Rep. 405.

91 Crooke v. County of Kings, 97 N. Y. 421, 453; Frear v. Pugsley, 9 Misc. Rep. 319; Mayor of N. Y. v. Stuyvesant, 17 N. Y. 34, 42.

92 Gates v. Dudgeon, 173 N. Y. 426; Forbes v. Reynard, 113 App: Div. 306.

93 § 178, Real Prop. Law; Matter of Stewart, 131 N. Y. 274, 281; Matter of Harbeck, 161 id. 211, revg. 43 App. Div. 188; Matter of Backhouse, 116 id. 737; Farmers' Loan & Trust Co. v. Kip, 52 Misc. Rep. 407, 120 App. Div. 347, 192 N. Y. 266.

94 Hillen v. Iselin, 144 N. Y. 365, 374, and see above, under $ 99, Real Prop. Law.

95 See above, under Prop. Law.

113, Real

§ 132. Definitions of grantor, grantee. The word " grantor is used in this article, in connection with a power, as designating the person by whom the power is created, whether by grant or by devise; and the word "grantee" is so used as designating the person in whom the power is vested, whether by grant, devise or reservation.

Formerly section 112, Real Property Law of 1896, chapter XLVI, General Laws:

§ 112. Definitions of grantor, grantee. The word "grantor" is used in this article, in connection with a power, as designating the person by whom the power is created, whether by grant or by devise; and the word grantee" is so used as designating the person in whom the power is vested, whether by grant, devise or reservation.96

Section 112 was formerly I Revised Statutes, 738, section 135:

[ocr errors]

$135. The term grantor of a power" is used in this Article as designating the person by whom a power is created, whether by grant or devise; and the term grantee of a power," is used as designating the person in whom a power is vested, whether by grant, devise or reservation.97

66

[ocr errors]
[ocr errors]

Comment on Section. At common law a grantor of a power was called a donor," and the grantee, a donee" of a power.98 The change by the statute being purely verbal is inconsequential. Where a settlor reserves to himself a power of revocation, he is both a "grantor" and a grantee" of a power under this section. But the case is provided for elsewhere in the statute, and the person thus reserving to himself is made subject to all those provisions of the article applicable to grantees of powers.99

66

Usage of Term "Donee." The effect of changing the usage of established terms of the common law is not always conducive to precision. Thus the courts continually speak of a "donee of a power" instead of the grantee of a power, and they are entirely within the bounds of propriety when so speaking. But we should expect the Legislature to be consistent at all times, yet even they speak of a grantee of a power as a donee of a power" in the Tax Law.1

[ocr errors]

96 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

97 Repealed, chap. 547, Laws of 1896.

98 Cf. Sugd. Pow. and Chance, Pow. passim.

99 1 R. S. 735, § 105; 8 144, Real Prop. Law.

18 220, chap. 24, General Laws, amended chap. 284, Laws of 1897, now chap. 60, Consolidated Laws.

§ 133. Division of powers. A power, as authorized in this article, is either general or special, and either beneficial or in trust.

Formerly section 113, Real Property Law of 1896, chapter XLVI, General Laws:

§ 113. Division of powers.- A power, as authorized in this article, is either general or special, and either beneficial or in trust.2

Section 113 was formerly 1 Revised Statutes, 732, section 76:

$ 76. Powers, as authorized in this Article, are general or special, and beneficial or in trust.3

Comment on Section. Under section 130 it was stated that powers simply collateral were formerly subdivided into general and special, according as the appointees were unlimited or limited to particular persons, by the grantor of the power. This division is so extremely natural that it was often employed by text writers,5 and was suggested as a proper classification for a reformed code of powers, long prior to the Revised Statutes. A division of powers into "beneficial powers" and "powers in trust" had not been employed by text writers on powers, but it was a well-known division of gifts and voluntary settlements, and was equally applicable to powers. The statutory definitions of these various kinds of powers follow in the succeeding sections of the Real Property Law.8

Common-law Classification. In the former or old law, powers were divided into general and special powers, according as the authority of the donee of the power was to appoint to any one, including himself, or to appoint to a special person or class.9

System of Classification. Systems of classification are important only in respect of the grantee's ability to suspend, extinguish or merge the power.10

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]
« ÀÌÀü°è¼Ó »