struction as its prototype, for no change was thereby intended.50 Powers of revocation, reserved to settlors for their own benefit, are beneficial powers, and seem still valid under this statute.51

Execution of a Beneficial and General Power. A beneficial and general power is well executed if the grantee of the power appoint to himself.52

Advancements under a Beneficial Power. This subject is now controlled by the Decedent Estate Law and section 2733, Code Civil Procedure.53

Abolition of Beneficial Powers. As stated above the most comprehensive reform instituted by the Revised Statutes in the old English law of powers related to beneficial powers. In their notes to the article on Powers the original revisers say: "We have deemed it very important to limit the authority of the owners, in the creation of beneficial powers. It appears to us, that in this country, it can hardly happen that such a power of disposition will be separated from the legal estate for any purpose that the law ought to favor." 54 It behooves the professional draughtsman, therefore, to consider very seriously what beneficial powers remain authorized by this article on Powers, for if not so authorized, a beneficial power is now made void by this section.

50 Note to section 116 of the former act by Commissioners of Statutory Revision.

51 See the cases cited, infra, under $ 144, 145, this act.

52 Hubbard v. Gilbert, 25 Hun, 596; Farmers' Loan & Trust Co. v. Kip, 192 N. Y. 266.

53 § 96, Decedent Estate Law; Beebee v. Estabrook, 95 N. Y. 246. 54 See below, appendix III, note of original revisers on article on Pow

ers.

§ 137. General power in trust. A general power is in trust, where any person or class of persons, other than the grantee of the power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from its execution.

Formerly section 117, Real Property Law of 1896, chapter XLVI, General Laws:

§ 117. General power in trust.- A general power is in trust, where any person or class of persons, other than the grantee of the power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from its execution.55

Section 117 was formerly 1 Revised Statutes, 734, section 94:

§ 94. 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 result from the alienation of the lands, according to the power.56

Powers in Trust. The definition contained in the foregoing section. coincides with the former equity rule. At law a power was never imperative, but where another than donee had an interest in its execution, the donee of the power was regarded in equity as a trustee.57 Powers in trust have been to some extent considered before under other sections of this act,58 and what is there said need not again be repeated. In our practice powers in trust may be powers of revocation and appointment, powers of distribution, partition, division, or powers of selection. Powers are in trust when the disposition authorized excludes from its enjoyment the grantee of the power,59 or includes others besides himself.00 Both a power and a trust are necessary to constitute a power in trust.61 said in an early case under the Revised Statutes, a power in trust is a mere authority to limit a use, and to constitute it there must always be a person other than the donee, or grantee, of the power, called the appointee, answering to the cestui que trust in a simple * * A power in trust is to be understood in contradistinction to an estate in trust. * * * "" A power in trust imvolves the idea of a trust as much as a trust estate.62

{rust.

*

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

5 Repealed, chap. 547, Laws of i896.

57 Story, Fq. Jurisp., § 1061. 5o See under §§ 97, 99, supra. 59 Downing v. Marshall, 23 N. Y. 366, 379.

As was

60 Smith v. Bowen, 35 N. Y. 83, 89; cf. Towler v. Towler, 142 id. 371. 61 Sweeney v. Warren, 127 N. Y at p. 434; Delaney v McCormack, 88 id. at p. 181.

62 Farmers' Loan & Trust Co. v. Carroll. 5 Barb. 613; Towler v. Towler, 142 N. Y. 371.

What Trusts Valid as Powers. What trust purposes are valid as powers, this act does not (as it does in the case of the four trusts lawful 6) attempt to specify.64 But powers in trust certainly excluded the four purposes specified in the 76th section of this act, and if such are bad as trusts, they are not validated as powers.65 The purposes which may be carried out as trust powers are the usts lawful by the old law;66 but now they must be active in their nature and not mere passive trusts. 67 Where the title to lands is in the person beneficially entitled, a valid power in trust cannot be given to a trustee to receive the rents and profits for the benefit of such person.68 A perpetuity can never be accomplished by means of a power any more than by one of the express statutory trusts; nor can a trust purpose, effected by a power, contravene public policy,70 or violate equity or good morals."1

69

Construction Favors Powers in Trust. The original revisers saw no objection to the retention of trusts of powers, and "powers in trust" are now favored.72 An intention to create an express trust will not be implied when the purpose may be accomplished as a power.73 Thus, in construction, powers in trust are preferred to the four trusts lawful by the 96th section. But where there is a title

63 Supra, § 96, Real Prop. Law. 64 Downing v. Marshall, 23 N. Y. at p. 380; Belmont v. O'Brien, 12 id. at p. 403; Selden v. Vermilya, 3 id. at p. 536; Read v. Williams, 125 id. at p. 569; Hillen v. Iselin, 144 id. at p. 380.

65 Supra, pp. 481, 482, under § 99; Trowbridge v. Metcalf, 5 App. Div. 318, citing Garvey v. McDevitt, 72 N. Y. 556; Lang v. Ropke, 5 Sandf. at p. 372; Kernochan v. Marshall, 165 N. Y. 472, 479; Staples v. Hawes, 39 App. Div. 548; Murray v. Miller, 178 N. Y. 316.

66 Downing v. Marshall, 23 N. Y. 366, 367; Holly v. Hirsch, 135 id. 590, 594.

67 Townshend v. Frommer, 125 N. Y. 446, 457, 468; De Peyster v. Clendinning, 8 Paige, 295, 303; McComb v. Title Guarantee Co., 36 Misc. Rep. 370, 372.

68 Wood v. Wood, 5 Paige, 596; McComb v. Title Guarantee Co., 36 Misc. Rep. 370, 372; cf. Jennings v. Conboy, 73 N. Y. 230.

69 Belmont v. O'brien 12 N. Y. 395, 403; Everitt v. Everitt, 29 id. 39, 78; Read v. Williams, 125 id. 560, 569; Booth v. Baptist Church, 126 id. 215; Sweeney v. Warren, 127 id. 426, 433; Tilden v. Green, 130 id. 29, 54; Hillen v. Iselin, 144 id. at p. 380; Staples v. Hawes, 24 Misc. Rep. 475, 477.

70 Belmont v. O'Brien, 12 N. Y. at p. 403; Tilden v. Green, 130 id. 29, 54; Van Vechten v. Van Veghten, 8 Paige, 104, 124.

71 Read v. Williams, 125 N. Y. 560, 569; Sweeney v. Warren, 127 id. 426; Hillen v. Iselin, 144 id. at p. 380.

72 See below, Appendix III, notes of original revisers on article on Powers.

73 Heermans v. Robertson, 64 N. Y. 332; Henderson v. Henderson, 113 id. 1, 11; Matter of Conger, 81 App. Div. 493, 499, and see above, p. 483.

by remainder and also title under the execution of a power in trust the legal title will prevail.74

Beneficiaries of Powers in Trust. In order to make an express 75 trust valid as a power in trust, there must be a definite and certain beneficiary entitled to enforce the use or trust,76 unless the limitation is to a charitable, educational, religious or benevolent use, when certain ancient and more liberal rules are now directed to be applied by statute.77

Rule against Perpetuities. Trusts, operative as powers, are subject to the rule against perpetuities, for the same reasons stated in reference to the four trusts lawful,78 or because they suspend the vesting of the ultimate fee.79 The trustee of a power cannot alienate in contravention of the trust,80 and the rule against a perpetuity, therefore, applies with full force to trusts intended to be operative as powers, whenever the power of alienation by the trustee is unduly suspended.81 A power in trust is as imperative as any express trust created under the 96th section.82

While a peremptory power of sale does not, per se, suspend the power of alienation,83 a power to sell and distribute does not necessarily relieve a trust limitation, otherwise invalid, from the effect of suspending the power of alienation.84 So if the execution of even a power of sale is, by any limitation, unduly postponed, such limi

74 Garrett v. Duclos, 128 App. Div. 508.

75 Express is here used in its ordinary meaning. See above, p. 441, note 26.

76 Tilden v. Green, 130 N. Y. 29; Prichard v. Smith, 95 id. 76; Matter of O'Hara, id. at p. 418; Read v. Williams, 125 id. 560; Sweeney v. Warren, 127 id. 426, 433; 60 Harv. Law Rev. 529.

77 Chap. 701, Laws of 1893; § 113, Real Prop. Law.

78 Supra, pp. 455, 456.

79 Dana v. Murray, 122 N. Y. 604, 613; Booth v. Baptist Church, 126 id. 215, 239, 240.

80 Dana v. Murray, 122 N. Y. 604; Matter of Will of Butterfield, 133 id. 473.

31 Booth v. Baptist Church, 126 N. Y. 215; Matter of Will of Butterfield, 133 id. 473; Dana v. Murray, 122 id. at p. 613; Keyser v. Mead, 53 Misc. Rep. 114.

82 § 157, Real Prop. Law.

83 Garvey v. McDevitt, 72 N. Y. 556, 563; Blanchard v. Blanchard, 4 Hun, 287, 291; Henderson v. Henderson, 113 N. Y. 1, 12; Deegan v. Wade, 144 id. 573; Eells v. Lynch, 8 Bosw. 465, 481; Keyser v. Mead, 53 Misc. Rep. 114.

84 Allen v. Allen, 149 N. Y. 280; Brewer v. Brewer, 11 Hun, 147; Hobson v. Hale, 95 N. Y. 588; Heyden v. Sugden, 48 Misc. Rep. 108, 118; Stewart v. Wooley, 121 App.. Div. 531.

86

85

tation violates the rule against a perpetuity, and is void, unless the power is of such a nature as to be presently extinguished or merged. Where the power may be released by a person entirely sui juris, it would seem not to create a perpetuity.87 It is, however, well settled that where an absolute power of sale is conferred upon an executor, the addition of words suggesting a time for its exercise, or indicating the testator's desire in that regard, does not limit or restrain the action of the executor.88

Acts Lawful as Powers. A power is limited to the creation of such estates and the performance of such acts as the donor of the power could lawfully create or perform.89 For the purposes of the rule against perpetuities a power relates back to the taking effect of the instrument creating it.90

A

Power in Trust, when General, when Special. A general power in trust is contradistinguished from a special power in trust.91 power in trust is general when any person other than the grantee is entitled to the proceeds.92 A general power in trust can never be executed for the benefit of the donee of the power.93 In this respect it partakes of the nature of all trusts.94

Precatory or Implied Powers in Trust. The cases, where property is given to any one with a wish or entreaty to dispose of it in favor of another, may fall under powers in trust.95

Advancements under a Power in Trust. This subject is now controlled by the Decedent Estate Law.96

85 Matter of Will of Butterfield, 133 N. Y. 473; Spitzer v. Spitzer, 38 App. Div. 437; Trask v. Sturges, 31 Misc. Rep. 195; Trowbridge V. Metcalf, 5 App. Div. 318; Stewart v. Wooley, 121 id. 531.

86 Hetzel v. Barber, 69 N. Y. 1; Garvey v. McDevitt, 72 id. 556, 563. 87 Garvey v. McDevitt, 72 N. Y. at p. 563; cf. Matter of Wilcox, 194 id. 288.

88 Deegan v. Wade, 144 N. Y. 573; Robert v. Corning, 89 id. 225; Henderson V. Henderson, 113 id. 1; Chanler v. N. Y. Elevated R. R., 34 App. Div. 305, 307; Keyser v. Mead, 53 Misc. Rep. 114; cf. Stewart v. Wooley, 121 App. Div. 531.

89 Salmon v. Stuyvesant, 16 Wend. 324; Genet v. Hunt, 113 N. Y. 158.

90 Genet v. Hunt, 113 N. Y. at p. 170; Townshend v. Frommer, 125 id. at pp. 461, 462; 1 R. S. 737, § 128, now 178, Real Prop. Law.

91 See next section.

92 Russell v. Russell, 36 N. Y. 581; Kinnier v. Rogers, 42 id. 531, 535; Dana v. Murray, 122 id. 604, 613; Delaney v. McCormack, 88 id. 174, 181; Wright v. Trustees Meth. Epis. Church, 1 Hoff. Ch. 201.

93 Garvey v. McDevitt, 72 N. Y. 556, 563.

94 Cf. Farw. Pow., chap. 12.

95 Supra, pp. 424, 430, 444; cf. Leggett v. Firth, 132 N. Y. 7, II: Thomas v. Wolford, 49 Hun, 145: Wells v. Seeley, 47 id. 109, 112. 98 96, chap. 13, Consolidated Laws; 2733, Code Civ. Proc.