§ 142. Capacity of married woman to take power. A general and beneficial power may be given to a married woman, to dispose, during her marriage, and without concurrence of her husband, of real property conveyed or devised to her in fee.

Formerly section 122, Real Property Law of 1896, chapter XLVI, General Laws:

§ 122. Capacity of married woman to take power. A general and beneficial power may be given to a married woman, to dispose, during her marriage, and without concurrence of her husband, of real property conof lands conveyed or devised to her in fee. 61

Section 122 was formerly 1 Revised Statutes, 732, section 80, and 1 Revised statutes, 735, section 110, and 1 Revised Statutes, 736, section 117: § 80. A general and beneficial power may be given to a married woman to dispose, during her marriage, and without the concurrence of her husband, of lands conveyed or devised to her in fee. 2

§ 110. A married woman may execute a power during her marriage, by grant or devise, as may be authorized by the power, without the concurrence of her husband, unless by the terms of the power its execution by her, during marriage, is expressly or impliedly prohibited.63

§ 117. If a married woman execute a power by grant, the concurrence of her husband, as a party, shall not be requisite, but the grant shall not be a valid execution of the power, unless it be acknowledged by her. on a private examination, in the manner prescribed in the third Chapter of this Act, in relation to conveyances by married women.64

The Common Law. While at the common law a married woman was sub potestate viri, and could not dispose of her own estate except by a fine or a recovery (or in the English colonies by a deed, separately acknowledged, after the custom of London),65 yet, as an attorney for another, or by means of a power, she could convey an estate in the same manner as her principal, because the conveyance was considered the deed of the principal, and not of the attorney. But by means of settlements in trust and conveyances to her separate use, the ancient law had been much modified before the Revised Statutes of 1830.07

66

61 Repealed by Real Prop. Law of 19c9, 460, art. 14, chap. 50, Consolidated Laws.

62 Repealed, chap. 547, Laws of 1896.

63 Repealed, chap. 547, Laws of

1896.

64 Repealed, chap. 547, Laws of 1896.

c5 Supra, p. 604, and see under $302, Real Prop Law.

66

I Sugd. Pow. 181.

67 Macqueen, Husband & Wife, chap. 3, pt. 2.

The Revised Statutes. At the date of their taking effect,68 the Revised Statutes made little change in the then existing legal status of a married woman, or in her ability to execute powers.69 Long before 1830, and the subsequent married Women's Enabling Acts, she had come, either at law or in equity, to have dominion over property limited in trust or to her sole and separate use. She might also execute all powers, appendant or collateral, as a feme sole; at least, provided a settlement contained an express dispensation of the disabilities then attending her coverture.70

Object of Revised Statutes, 732, Section 80. It is said that the object of Revised Statutes, 732, section 80,71 was to prevent the husband's common-law rights by curtesy attaching on an absolute conveyance in fee to the wife.72

74

1 Revised Statutes, 735, Section 110, and 1 Revised Statutes, 736, Section 117. 1 Revised Statutes, 735, section 110,73 and 1 Revised Statutes, 736, section 117, generally stated the common-law rules. Such legislation was not an innovation on the common-law,75 excepting, perhaps, as to the mode in which a feme covert should acknowledge a deed in execution of her power, and this acknowledgment was to be in precise conformity to existing law, which in turn was founded on the old law of the province of New York relating to conveyances and the custom of old London. By the terms of a settlement the execution of a wife's power might always be made to depend on the husband's assent, as stated in 1 Revised Statutes, 735, section.

110.

Under the Revised Statutes. Under the Revised Statutes, at least prior to 1848,76 it was held that a married woman might not execute a power over her personal estate by will." If such a rule was intentional it was a departure of the revisers from the common law,

68 Jan. 1, 1830.

69 Wright v. Tallmadge, 15 N. Y. 307, 313; cf. Wadhams V. Amer. Home Miss. So., 12 id. 415, 423; Leavitt v. Pell, 25 id. 474, 478.

701 Chance, Pow. 181; 1 Sugd. Pow. 181, 191; Roper, Husb. & W., chaps. 19, 21; Macqueen, Husb. & W., chap. 3, pt. 2; Notes to Hulme v. Tenant, 1 White & Tudor, Lead. Cas. in Eq. 536, 543; Richardson v. Pulver, 63 Barb. 67; Vines v. Clarke, III App. Div. 12.

71 Supra, p. 605.

72 Wright v. Tallmadge, 15 N. Y. 307, 313.

73 Supra, p. 605.

741 Sugd. Pow. 191.

75 Supra, p. 605, et infra, § 302, Real Prop. Law.

76 Chap. 200, Laws of 1848; chap. 375, Laws of 1849; 2 R. S. 60, § 21.

772 R. S. 60, § 21, Wadhams v. The Amer. Home Miss. So., 12 N. Y. 415.

and in a wrong direction.78 The legislative amendment of 1867, in any event, finally provided that every female might bequeath her personal estate,79 thus explicitly removing any disability of a feme covert to execute a power of appointment or disposition by will of her personal estate.

Married Women's Acts. It was not until after the Constitution of 1846 that a series of acts, beginning with the year 1848, placed a married woman's separate estate on the same basis as the estate of feme sole. These acts made a married woman's power of disposition of her estate as absolute as that of a man's over his estate; indeed, they left her in a better position, for his curtesy initiate can now be defeated by her conveyance or will without her husband's assent,81 whereas he cannot thus defeat her dower inchoate. Under the present law the separate acknowledgment of a married woman in any case is unnecessary.82 This was in accordance with preexisting law. 83

Effect of Section, Supra. In view of the status of a feme covert in the present law,84 it is extremely improbable that this section of the Real Property Law now serves any end, except a declaration of the law otherwise stated.

78 Strong v. Wilkin, 1 Barb. Ch. 9; Moehring v. Mitchell, id. 264.

79 Chap. 782, Laws of 18678

80 Chap. 200, Laws of 1848; chap. 576, Laws of 1853; chap. 375, Laws of 1849; chap. 90, Laws of 1860; repealed by chap. 172, Laws of 1862; chap. 249, Laws of 1879, as amd. by chap. 300, Laws of 1880; chap. 472, Laws of 1880; chap. 381, Laws of 1884; chap. 537, Laws of 1887; chap. 51, Laws of 1890; chap. 594, Laws of 1892; chap. 272, Laws of 1896; chap. 405, Laws of 1905; and see chap. 616, Laws of 1892, as to release of dower by divorced women. See now 'The Domestic Relations Law," chap. 14, Consolidated Laws; repealing and re-enacting most or all of the foregoing acts.

81 Hatfield v. Sneden, 54 N. Y. 280, 287; Burke v. Valentine, 5 Abb. Pr. N. S. 164, 62 Barb. 412; Wells v. Betts, 45 App. Div. 115, 118; Matter of Baird, 30 Misc. Rep. 668; Matter of Clarke, 40 Hun, 237; Spindler v. Gibson, 75 App. Div. 444; Vines v. Clarke, 111 id. 12.

82 § 302, Real Prop. Law.

83 Chap. 249, Laws of 1879; chap. 300, Laws of 1880; Richardson v. Pulver, 63 Barb. 67.

84 The Domestic Relations Law, constituting chap. 48 of the General Laws; chap. 272, Laws of 1896, now chap. 19, Laws of 1909, chap. 14, Consol. Laws.

§ 143. Capacity to take a special and beneficial power. A special and beneficial power may be granted,

1. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the property to which the power relates; or,

2. To a tenant for life, of the real property embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life; and such a power is valid to authorize a lease for that period but is void as to the excess.

Formerly section 123, Real Property Law of 1895, chapter XLVI, General Laws:

§ 123. Capacity to take a special and beneficial power. A special and beneficial power may be granted,

I. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the property to which the power relates; or,

2. To a tenant for life, of the real property embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life; and such a power is valid to authorize a lease for that period but is void as to the excess.85

Section 123 was formerly 1 Revised Statutes, 733, section 87:

§ 87. A special and beneficial power may be granted,

1. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the lands to which the power relates:

2. To a tenant for life of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life.86

Comment on Section. The first subdivision of this section, it should be remembered, was first enacted at a time when the husband's common-law power to make leases of the wife's estate, and to take the rents and profits,87 had not been entirely taken away by the Married Women's Acts.88 Prior to those acts, and when the Revised Statutes were enacted, it was common practice for a settlor of an estate on a female to empower her, when a married woman, to make leases. Even where the property was limited to her sepa

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

86 Repealed, chap. 547, Laws of

87 I Roper, Husb. & W. 55, 90; a Kent, Comm. 130, 133. 88 Supra, p. 607, n. 80.

'rate use, a feme covert could not at common law dispose of it during the marriage otherwise than by fine or recovery; nor could she lease it unless a power to do so was given her by the settlement.89 When she was thus empowered to make leases the husband's concurrence to her appointment was unnecessary.90 When such a power was contained in a settlement, Sugden's opinion generally was that the husband's consent was not necessary in any case to the wife's appointment, assuming the power to be well limited to her.91 Section 143, supra. This section, it will be observed, confines the grant of a special beneficial power to a married woman to such powers as were formerly denominated appendant. It does not in terms authorize or prohibit the giving to her of a special and beneficial power to dispose of an estate or interest not limited to her.9% The first subdivision of this section was originally drawn at a time when a married woman's power of disposition over her own estate was limited. The express retention of this section in this act was, therefore, not indispensable.93 The first subdivision of this section has no relation to powers in trust,94 or to general beneficial powers. It is very common to give a married woman a special or general power in trust, or a general beneficial power, such as a power to appoint estates in fee to her children or husband, or generally to her right heirs at her own will; and such powers need not be appendant or appurtenant, or, in other words, need not depend on the estate of the grantee of the power.96

95

92

Tenant for Life's Leasing Power. In regard to the second subdivision of this section, we should recall that, without statutory authority or the grant of a power, tenants for life had no right to make leases beyond their own lives. They had no authority to bind estates in remainder or reversion.97 A statute in the time of King Henry VIII first gave tenants in tail, and a husband, seised

182;

892 Roper, Husb. & W. Cruise, Dig., tit. 32, chap. 5, § 73; and id., tit. 32, 88 34, 35; cf. Macqueen, Husb. & W. 33, 295.

90 I Sugd. Pow. 191. 91 1 Sugd. Pow. 191.

92 Jackson v. Edwards, 7 Paige, 386, 400; affd., 22 Wend. 498; Cutting v. Cutting, 86 N. Y. 522, 533; Matter of Zefita, Countess de RohanChabot, 167 id. 280.

83 See under preceding section.

94 § 137, Real Prop. Law.

95 Jackson v. Edwards, 22 Wend. 498, 508.

96 Jackson v. Edwards, 22 Wend. 498, 508; Kane v. Astor's Exrs., 9 N. Y. 113; Cutting v. Cutting, 86 id. 522, 532; and see Genet v. Hunt, 113 id. 170, as to power there mentioned in first settlement conceded valid.

97 Smith, Real & Pers. Prop. 528; Taylor, Landl. & Ten., § 113; Mulligan v. Cox, 26 Misc. Rep. 709.