Execution of a Power in Trust. class is generally assumed to refer to legal estates; but this is not invariable, and unless restricted, the appointment may it seems be to trustees.9 97 Where there is power to appoint to and among a class, and there is but one survivor of the class, he takes by virtue of the instrument creating the power and not under the power.98 His interest becomes virtually a remainder.99 Power to appoint to and among a 97 Kemp v. Kemp, 36 Misc. Rep. 79, 87; Monjo v. Woodhouse, III App. Div. 80. 98 Kemp v. Kemp, 36 Misc. Rep. at p. 87, 99 Cf. Matter of Lansing, 182 N. Y. 238; Matter of Haggerty, 128 App. Div. 479; Garrett v. Duclos, Id. 508. § 138. Special power in trust. A special power is in trust, where either, 1. The disposition or charge which it authorizes is limited to be made to a person or class of persons, other than the grantee of the power; or, 2. A person or class of persons, other than the grantee, is designated as entitled to any benefit, from the disposition or charge authorized by the power. Formerly section 118, Real Property Law of 1896, chapter XLVI, General Laws: § 118. Special power in trust. A special power is in trust, where either, 1. The disposition or charge which it authorizes is limited to be made to a person or class of persons, other than the grantee of the power; or, 2. A person or class of persons, other than the grantee, is designated as entitled to any benefit, from the disposition or charge authorized by the power.1 Section 118 was formerly 1 Revised Statutes, 734, section 95: § 95. A special power is in trust, I. When the disposition which it authorizes, is limited to be made to any person or class of persons, other than the grantee of such power, entitled to the proceeds or any portion of the proceeds, or other benefit to result from the execution of the power: 2. When any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorized by the power.2 Comment on Section. Having outlined the nature of all powers in trust under prior sections of this act, the reader is referred to what is there said for the commoner principles.3 This section does not alter the essentials of the common law relative to special powers in trust. A power in trust being granted to one who had no estate in the lands affected by the power, was a power simply collateral at the common law,5 but one in the nature of a trust. 1 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 2 Amended, chap. 320, Laws of 1830; repealed, chap. 547, Laws of 1896. 3 §§ 97, 99, 137, Real Prop. Law, pp. 465, 480, 591, supra. ♦ Dominick v. Sayre, 3 Sandf. 555; and see 135, supra. 5 Root v. Stuyvesant, 18 Wend. at p. 284. 6 2. Sugd. Pow. 158, Special Powers in Trust. Powers of sale and distribution among the heirs of the testator, exclusive of one of the donees of the power, are special powers in trust under this section. A special power in trust is well executed by an appointment to trustees of the beneficiary of the power, unless grantee is expressly restricted to legal estates.8 Advancements under a Power in Trust. trolled by the Decedent Estate Law." 7 Smith v. Bowen, 35 N. Y. 83, 89; Cutting v. Cutting, 86 id. 522, 536; Murray v. Miller, 178 id. 316, 323. This subject is now con 8 Kemp v. Kemp, 36 Misc. Rep. 79. 9 Chap. 13, Consolidated Laws 96; § 2733, Code Civ. Proc. § 139. Capacity to grant a power. A person is not capable of granting a power, who is not, at the same time, capable of transferring an interest in the property to which the power relates. Formerly section 119, Real Property Law of 1896, chapter XLVI, General Laws: § 119. Capacity to grant a power.- A person is not capable of granting a power, who is not, at the same time, capable of transferring an interest in the property to which the power relates.10 Section 119 was formerly 1 Revised Statutes, 732, section 75: § 75. No person is capable in law of granting a power, who is not at the same time, capable of aliening some interest in the lands to which the power relates.11 Comment on this Section. The rule stated in this section of the Real Property Law applies in all departments of the law relating te principal and agent. The grantor of a power, in common with other principals, must have the necessary legal dominion over the property to be affected by the power, and also the legal right to delegate an authority in respect of such dominion.12 Alien cannot Grant a Power. Those aliens who cannot hold property as against the State, would appear to be within the condemnation of this section, but whether before office found was originally a question of some refinement.13 But in this State, we must consider that an alien may transfer real property to a citizen so as to defeat the State's escheat.14 Therefore if a power granted by an alien is executed by the grantee, to a citizen, such execution would seem complete to defeat the State's escheat, for the principle, "qui facit per alium facit per se" applies to powers as to all other agencies. 10 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 11 Repealed, chap. 547, Laws of 1896. 12 Selden v. Vermilya, 3 N. Y. 525, 536; Boasberg v. Cronan, 30 N. Y. St. Rep. 438, 9 N. Y. Supp. 664. 13 Cf. Co. Litt. 52a; I Chance, Pow. $ 600, 601. 14 § 15, Real Prop. Law; § 95, Decedent Estate Law. § 140. How power may be granted. A power may be granted either: 1. By a suitable clause, contained in an instrument sufficient to pass an estate in the real property, to which the power relates; or, 2. By a devise contained in a will. Formerly section 120, Real Property Law of 1896, chapter XLVI, General Laws: § 120. How power may be granted. A power may be granted either: 1. By a suitable clause, contained in an instrument sufficient to pass an estate in the real property, to which the power relates; or, 2. By a devise contained in a will.15 Section 120 was formerly I Revised Statutes, 735, section 106: § 106. A power may be granted, 1. By a suitable clause contained in a conveyance of some estate in the lands, to which the power relates: 2. By a devise contained in a last will and testament.16 This Section does not Control Reservation or Revocation of Powers. This section does not control a reservation or a revocation of powers, as they are provided for elsewhere.17 Old Law Relating to Creation of Powers. In the ancient law of England powers were known in connection with uses only, and were enforced solely in equity.18 After the Statute of Uses, powers deriving their effect from that statute might be inserted in almost any instrument of conveyance good under that statute.19 But there were some subtle exceptions in reference to certain powers created by instruments not operating by transmutation of possession, bargains and sales and covenants to stand seised.20 These exceptions it is unnecessary now to mention at large. Powers Created by Will. A power might also be created by will arter the Statute of Wills.21 The Statute of Wills being enacted after the Statute of Uses, there was at first some doubt in England whether a use created by will was affected by the Statute of Uses.22 |
