§ 134. General power. A power is general, where it authorizes the transfer or incumbrance of a fee, by either a conveyance or a will of, or a charge on, the property embraced in the power, to any grantee whatever. Formerly section 114, Real Property Law of 1896, chapter XLVI, General Laws: § 114. General power.- A power is general, where it authorizes the transfer or encumbrance of a fee, by either a conveyance or a will of or a charge on the property embraced in the power, to any grantee whatever.11 Section 114 was formerly 1 Revised Statutes, 732, section 77: 877. A power is general, where 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.12 General Powers. As stated before, general power was much the same at the common law,13 except that the former definition had reference to the appointees, not to the subject-matter upon which the power acted. In construing powers the end and design of the parties is to govern, and where the intention requires it, a special power has been construed as general, and a general power deemed to be special.14 But a power created by deed must be more formal than one created by will.15 Execution of General Powers. A general power of appointment is well executed by appointing to trustees on valid trusts.16 But as certain trusts, in New York, suspend the power of alienation,17 and the estate created under the power has relation back to the instru 11 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, $ 460. 12 Repealed, chap. 547, Laws of 1896. 13 Supra, pp. 575, 584; Farw. Pow. 7; Whart. Conv. 427; Crabb, Real Prop., 1960; Humph. Observ. Real Prop. 88-91; Kinnier v. Rogers, 42 N. Y. 531, 534; Crooke v. County of Kings, 97 id. 421, 448; Coleman v. Beach, id. 545, 558; Sweeney v. Warren, 127 id. at p. 433; Hume v. Randall, 141 id. 499, 503; Ward v. Stanard, 82 App. Div. 386, 392; 14 Note to Van Vechten v. Van Veghten, 8 Paige, at p. 124; Landon v. Walmuth, 76 Hun, 271. 15 Jennings v. Conboy, 73 N. Y. at p. 234. 16 Maitland v. Baldwin, 70 Hun, 267; Frear v. Pugsley, 9 Misc. Rep. 316; cf. Kemp v. Kemp, 36 id. 79; Matter of Tenney, 104 App. Div. 290. 17 Supra, pp. 291, 455. ment creating the power, care must be taken not to violate the rule against perpetuities, in any appointment to trustees.18 Execution of General Beneficial "Powers." A general beneficial power is well executed by an appointment of the grantee of the power to himself.19 18 § 32, Real Prop. Law; Frear v. Pugsley, 9 Misc. Rep. 316, to the contrary, is not an authority on that point; Chapl. Ex. Trusts & Pow., $ 679; Maitland v. Baldwin, 70 Hun, at p. 271, 272; Farmers Loan & Trust Co. v. Kip, 192 N. Y. at p. 285; $ 178, Real Prop. Law, and cases there cited. 19 Hubbard v. Gilbert, 25 Hun, 596; Farmers' Loan & Trust Co. v. Kip, 192 N. Y. 266, 285. § 135. Special power. A power is special where either: 1. The persons or class of persons to whom the disposition of the property under the power is to be made are designated; or, 2. The power authorizes the transfer or incumbrance, by a conveyance, will or charge, of any estate less than a fee. Formerly section 115, Real Property Law of 1896, chapter XLVI, General Laws: $ 115. Special power.- A power is special where either: 1. The persons or class of persons to whom the disposition of the property under the power is to be made are designated; or, 2. The power authorizes the transfer or encumbrance, by a conveyance, will or charge, of any estate less than a fee.20 Section 115 was formerly 1 Revised Statutes, 732, section 78: $ 78. A power is special, 1. Where the persons or class of persons, to whom the disposition of the lands under the power is to be made, are designated: 2. Where the power authorizes the alienation, by means of a conveyance, will or charge, of a particular estate or interest less than a fee.21 Special Power. This definition of the statute is more enlarged than the definition of the common law. At common law the term applied only where appointees were special,22 and had no reference. to the quantity of the estate to which the power referred. The present section makes an authority to alienate an estate less than a fee a special power,23 although appointees may be general. But in the construction of these powers the courts will take into consideration their end as designed by the donor of the power.24 A power created by deed must be more formal than one created by will.25 Classifications of powers are only important in reference to the rules regulating the donee's power to extinguish or merge them.26 A special power in trust was under consideration in a comparatively recent case.2 27 20 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 21 Repealed, chap. 547, Laws of 1896. 22 Co. Litt. 271b, note 1, § 7; Crabb, Real Prop., 8 1960; Whart. Conv. 426; Farw. Pow. 7; Wright v. Tallmadge, 12 N. Y. 307; Strahan, Prop. 168. 23 Leggett v. Perkins, 2 N. Y. 297, 317; Cutting v. Cutting, 86 id. 522, 531; Delaney v. McCormack, 88 id. 174, 181. 24 Supra, under § 134, Real Prop. Law, p. 585. 25 Jennings v. Conboy, 73 N. Y. at p. 234. 26 Supra, under § 130, Real Prop. Law, pp. 575, 576. 27 Kemp v. Kemp, 36 Misc. Rep. 79. § 136. Beneficial power. A general or special power is beneficial, where no person, other than the grantee, has, by the term of its creation, any interest in its execution. A beneficial power, general or special, other than one of those specified and defined in this article, is void. Formerly section 116, Real Property Law of 1896, chapter XLVI, General Laws: § 116. Beneficial power. A general or special power is beneficial, where no person, other than the grantee, has, by the term of its creation, any interest in its execution. A beneficial power, general or special, other than one of those specified and defined in this article, is void.28 Section 116 was formerly 1 Revised Statutes, 732, section 79, and 1 Revised Statutes, 733, section 92: § 79. 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.29 § 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.30 32 Beneficial" Powers." The common-law writers did not classify powers with reference to appointees, otherwise than, as already indicated, general and special or particular.31 But, as also stated before, the subdivisions "beneficial” and “in trust," were both logical and convenient.3 All powers connected with estates must now be either beneficial or in trust.33 A power is beneficial when no one else besides the grantee of the power takes any interest, which the law recognizes, in its execution.34 Thus, when a power is conferred on one who is not a trustee of the power it is beneficial,35 and so when the limitation is legally silent as to the persons to be benefited by its execution,36 unless the limitation is otherwise void as a trust.37 28 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Law. See below, § 460. 29 Repealed, chap. 547, Laws of 1896. 30 Repealed, chap. 547, Laws of 1896. 31 Supra, p. 584; cf. Farw. Pow. 186; 2 Sugd. Pow. 27. 32 Supra, p. 584. 33 Jennings v. Conboy, 73 N. Y. 230; Cutting v. Cutting, 86 id. 522, 532, 536; Sweeney v. Warren, 127 id. 426, 434; cf. Towler v. Towler, 142 id. 371. 34 Jackson v. Edwards, 7 Paige, 386, 400; Barber v. Carey, 11 N. Y. 397, 402; Wright v. Tallmadge, 15 id. 307; Cutting v. Cutting, 86 id. 522, 531; Sweeney v. Warren, 127 id. 426, 434; Hume v. Randall, 141 id. 499, 503; Deegan v. Wade, 144 id. 573, 578; Kinnier v. Rogers, 42 id. 531, 534; Weinstein v. Weber, 58 App. Div. 112. 35 Smith v. Floyd, 140 N. Y. 337; Sweeney v. Warren, 127 id. at p. 434; cf. Towler v. Towler, 142 id. 371. 33 Jennings v. Conboy, 73 N. Y. 230. 37 Tilden v. Green, 130 N. Y. 29. The most drastic reform What Beneficial Powers Are now Authorized. of the Revised Statutes, and consequently of this Article, relates to beneficial powers.38 No beneficial power is now valid unless it is one specified in this article. Thus, a leasing power to life tenants to make leases for more than twenty-one years was formerly altogether bad, if a beneficial power.39 It will be readily observed that the condemnation of this section does not, however, extend to powers in trust. Nor would it seem to extend to leasing powers of trustees of an express trust.40 Even if trustees of an express trust take an estate pur autre vie, they are not subject to section 143 of this act.41 42 Among the beneficial powers, recognized by this article, are comprised a power to a married woman to dispose, during her marriage, of lands conveyed to her; a power to a tenant for life to devise generally,43 and a power to tenants for life to make leases for twenty-one years.44 What others are valid beneficial powers 45 it is not always easy to determine; but a general power of appointment, granted by a will or settlement, to a beneficiary of a trust, remains a valid general beneficial power,46 for a beneficiary of a trust is not a life tenant.47 In determining what beneficial powers were valid under the Revised Statutes, the court has placed a liberal construction on the word "enumerated" in the particular sentence declaring beneficial powers not enumerated void.49 The language of the present section is open, at least, to as liberal a con 38 See below, note of revisers of Revised Statutes on the article on Powers, Appendix III. 39 Root v. Stuyvesant, 18 Wend. 257; Salmon v. Stuyvesant, 16 id. 321, 325. This is changed now so as to avoid excess only. § 143, Real Prop. Law; cf. § 106, supra. 40 See under § 106, supra, and § 96, concerning quantity of the estate of trustees of an express trust. 41 As a power to trustees to lease is not, ordinarily, a beneficial power, leases of twenty-one years are independent of § 143 of this act. 421 R. S. 733, § 87; § 143, Real Prop. Law. 43 1 R. S. 733, § 84; § 143, Real Prop. Law. 441 R. S. 733, § 87; § 143, Real Prop. Law; Cutting v. Cutting, 86 N. Y. at p. 533. 45 See section 136 of this act, and note that an "advancement to a child is a beneficial power under § 96, Decedent Estate Law. 46 Cutting v. Cutting, 86 N. Y. 522; Farmers' Loan & Trust Co. v. Kip, 192 N. Y. 266, 279; and see Genet v. Hunt, 113 id. 158, as to a power of appointment reserved in a settlement. 478 100, Real Prop. Law. 48 1 R. S. 733, § 92, now incorporated in § 136, supra. 49 Cutting v. Cutting, 86 N. Y. at p. 535; and see below, discussion under § 144 of this act. |
