in right of his wife (provided the wife joined), power to make leases for definite terms of twenty-one years to commence in possession.98 Where a general power was granted to make leases, it was always construed to authorize leases in possession and not in reversion.99 But a settlor of an estate might, independently of statute, grant a power to make leases, as well in possession as in reversion, and a lease to bind the reversion was then good.1 In such cases the rents followed the reversion or remainder.2

Leases by Trustees of the Statutory Trusts. A most interesting question also arises since the Revised Statutes, concerning leases by trustees of the express or statutory trusts. They are expressly declared to have the whole estate or a fee simple,3 yet in several cases they are treated as tenants pur autre vie. If a trustee of an express trust, mentioned in the 96th section of this act, has an estate pur autre vie, then it is obvious that this section had originally no relation to such estates of trustees, and that it referred wholly to limitations of estates for life of grantee, for it confines. the leases to twenty-one years to commence in possession during the life of tenant for life. This cannot refer to an estate pur autre vie.5

In view of the uncertainty of the law relating to the quantity of the estate taken by trustees of an express trust," every well drawn settlement, either by deed or by will, should contain an express grant of a power to make leases, to bind remaindermen or reversioners, especially when the estate consists of building lots in great cities.?

Leases by Life Tenants in Excess of One and Twenty Years. Before "The Real Property Law of 1896" it was also intimated that leases by life tenant beyond twenty-one years were, under the Revised Statutes, void in toto, and not as to the excess only. The Commis98 32 Henry VIII, chap. 28.

99 Cruise, Dig., tit. 32, chap. 15, $24.

1 Cruise, Dig., tit. 32, chap. 15, 41; 2 Sugd. Pow. 338; Farw. Pow. (1st ed.) 481.

22 Chance, Pow. 220.

3 See above, pp. 486, 488, 489. • Supra, pp. 324, 488, 489, cf. Matter of McCaffrey, 50 Hun, 371, 374; Gomez v. Gomez, 147 N. Y. 195, 200; Matter of Hoysradt, 20 Misc. Rep. 265, 270; Matter of Armory Board,

29 id. 174; Matter of City of New York (110th Street), 81 App. Div.

27.

5 Matter of City of New York (10th Street), 81 App. Div. 27.

6 See above, under 88 96, 100, and 106.

7 Van Norden Trust Co. v. Donohue, 122 App. Div. at p. 56.

8 Root v. Stuyvesant, 18 Wend. 257; cf. Matter of McCaffrey, 50 Hun, 371.

sioners of Statutory Revision remodeled the section so as to make only the term in excess of twenty-one years void.9

Leasing Power not Separately Assignable. It is to be noticed that the the power of a life tenant to make leases is not assignable as a separate interest.10 But a mortgage by life tenant does not extinguish a leasing power.11

Leases of Agricultural Lands. A power to make leases for twentyone years under this section is now overridden by the Constitution in cases of rental leases of agricultural lands.12

* Leases. Leases are the mode in which chattel interests in lands are usually created or acquired.13 If for a longer term than one year they must be in writing.1

14

9 See the note to this section by Commissioners of Statutory Revision, Appendix II, infra.

10 Infra, 155, Real Prop. Law. 11 Infra, § 156, Real Prop. Law. 12 Art. I, Const. 1846; art. I, Const. 1894-5, § 13; see above, pp. 82, 160.

13 Supra, pp. 158, 171.

14 See above, 8 242, Real Prop. Law, and Israelson v. Wollenberg, 63 Misc. Rep. 293.

§ 144. Reservation of a power. The grantor in a conveyance

may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another; and a power thus reserved shall be subject to the provisions of this article, in the same manner as if granted to another.

Formerly section 124, Real Property Law of 1896, chapter XLVI, General Laws:

124. Reservation of a power. The grantor in a conveyance may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another; and a power thus reserved, shall be subject to the provisions of this article, in the same manner as if granted to another.14%

§ 105. The grantor in any conveyance, may reserve o himself any power, beneficial or in trust, which he might lawfully grant to another; and every power thus reserved, shall be subject to the provisions of this article, in the same manner as if granted to another.15

At common law a power

Old Law Concerning Powers of Revocation. of revocation could not be reserved or granted, for it was deemed repugnant to the grant.16 But after the Statute of Uses, powers of revocation might be reserved in almost any conveyance,17 except bargains and sales and covenants to stand seised, which were not effected by transmutation of possession.18 When the statute of 27 Elizabeth, chapter 4, made instruments containing powers of revocation reserved to settlors fraudulent as against subsequent purchasers of the settlor, they fell into disuse in voluntary settlements.19 But they remained in common use in connection with powers of appointment in settlements not voluntary and in devises.20 The likeness between powers of revocation and conditions in deed is sometimes noticed.21

Modern Law Concerning Powers of Revocation. Formerly the power most usually reserved to a settlor was a power of revocation, and this power, although a beneficial power, may be reserved in settle

141⁄2 Repealed by Real Prop. Law of 1909, 8 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 15 Repealed, chap. 547, Laws of 1896.

16 Co. Litt. 237a.

17 Supra, p. 572, under § 130, Real Prop. Law.

18

Sugd. Pow. 160, 177.

19 Supra, p. 573, under § 130, Real Prop. Law.

20 Supra, pp. 572, 573.
21 I Chance, Pow. 106.

24

ments since the Revised Statutes.22 But such a power if absolute, or at the will of the grantor, may still be void as against subsequent purchasers from the donee of the power.23 A conveyance by intending husband to trustees for the benefit of a future wife, with power to settlor to revoke in case the contemplated marriage shall not take place, is, however, a valid reservation. It does not avoid the whole settlement as to creditors of the husband,25 for marriage is the highest consideration known to the law, even as against creditors and under the statutes against fraudulent conveyances. Consequently such a power of revocation is not absolute a marriage settlement.

Powers of Appointment. Powers of appointment may certainly be granted under this article, as under the Revised Statutes,26 and, therefore, may, according to this section, be reserved to grantors in conveyances, unless such powers are purely beneficial and condemned by section 136 of this act.27

Usual Powers in Settlements of Estates. The powers usually inserted in most settlements of estates prior to the Revised Statutes were leasing powers, powers of sale, powers to charge generally, powers to jointure, and powers to make advancements to children. It is apprehended that most of these powers, if not beneficial powers only, may be lawfully granted under this article, and, therefore, may be lawfully reserved to a grantor.28 This would be very clear were it not that all powers are now declared either beneficial or in

22 Belmont v. O'Brien, 12 N. Y. 394, 404; Van Cott v. Prentice, 104 id. 45; Van Hesse v. MacKaye, 136 id. 114; Locke v. F. L. & T. Co., 140 id. 135, 142; Campbell v. Low, 9 Barb. 585; Matter of Masury, 28 App. Div. 580; affd., 159 N. Y. 532; Matter of Bostwick, 160 id. 489; Schreyer v. Schreyer, 43 Misc. Rep. 520, 101 App. Div. 456; Robb v. Washington & Jefferson College, 103 id 327, 353; Matter of Skinner, 45 Misc. Rep. 559; Newton v. Jay, 107 App. Div. 457; Dickey v. Goldschmidt, 60 Misc. Rep. 258; cf. Adams v. Adams, 111 App. Div. 390; $267, Real Prop. Law.

23 §§ 145, 267, Real Prop. Law. 24 This is a "beneficial power," but as it is one mentioned in this article

of this law it is not void under § 136, supra. Marvin v. Smith, 56 Barb. at p. 605; Cutting v. Cutting, 86 N. Y. 522, 534.

25 Cf. § 145, Real Prop. Law, and § 267, ibid.

26 Supra, p. 579; Cutting v. Cutting, 86 N. Y. 522; Genet v. Hunt, 113 id. 158; Hume v. Randall, 141 id. 499; Read v. Williams, 125 id. at p. 569; Wainwright v. Low, 132 id. 313; Matter of Union Trust Co., 179 id. 261, 264; Robb v. Washington & Jefferson College, 103 App. Div. 327, 353; Monjo v. Woodhouse, III id. 80; affd., 185 N. Y. 295.

trust; 29 and that beneficial powers not authorized by this article are declared void.30 But in the case of Cutting v. Cutting,31 it is to be observed that the court declined to place the very narrow construction, there contended for, on the section declaring certain beneficial powers void.32

Leasing Power in Trust. A leasing power, if in trust, is now valid as an express statutory trust,33 or as a power in trust,34 in some cases. So a special beneficial power to make leases may be given to a life tenant.35 Whether a settlor of an estate may now reserve to himself a power to make leases, and receive the rents for his own benefit, where he does not reserve a life estate, is another question. Such a power is certainly a special beneficial power under the 136th section, and it falls under the condemnation of that section.36 The reservation of such a power in a settlement would, however, be tantamount to the reservation of a life estate, or to the grant of a remainder, both valid limitations.37 A leasing power at common law was nothing but a declaration of a future use,38 and the reservation of a leasing power with the right to take the rents would now be a declaration of a use to the grantor, which, if not good as a power, might be good as the reservation of an estate, if less than a fee.39

Distinction Between Reservation of a Power and Reservation of an Estate. The distinction between a reservation of a power and the reservation of an estate is not always clear at the present day.40 A reservation is always construed in favor of a grantee for value.41

39 Towler v. Towler, 142 N. Y. 371, 376. How far a power and a fee may coexist in the same person, considered. I Chance, Pow. 16, 17; Farw. Pow. (1st ed.) 27; 4 Kent, Comm. 348.

40 Towler v. Towler, 142 N. Y. 371; Matter of Brooklyn Trust Co., 34 Misc. Rep. 205; Lewis v. Howe, 64 App. Div. 572; Matter of Skinner, 45 Misc. Rep. 559; Adams v. Adams, 114 App. Div. 390, 395; Boon v. Castle, 61 Misc. Rep. 474, 477.

41 Myers v. Bell Telephone Co., 83 App. Div. 623; Mason v. Thwing, 94 id. 77.