§ 150. Certain powers create a fee. Where a like power of disposition is given to a person to whom no particular estate is limited, such person also takes a fee, subject to any future estates that may be limited thereon, but absolute in respect to creditors, purchasers and incumbrancers. Formerly section 130, Real Property Law of 1896, chapter XLVI, General Laws: § 130. Certain powers create a fee. Where a like power of disposition is given to a person to whom no particular estate is limited, such person also takes a fee, subject to any future estates that may be limited thereon, but absolute in respect to creditors, purchasers and encumbrancers.30 Section 130 was formerly 1 Revised Statutes, 732, section 82: § 82. Where a like power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee, subject to any future estates that may be limited thereon, but absolute, in respect to creditors and purchasers.31 66 Comment on Section. An absolute power of disposition," within this article, is a general beneficial power to devise given to a tenant for life or years,32 or a general beneficial power to appoint by deed in the lifetime of the grantee of the power.33 Application of Section. This section provides for a case where the grantee of the absolute power of disposition takes no estate whatever in the lands subjected to the power. At common law, such a power was a power simply collateral.34 The beneficial interest a man took under the execution of a power simply collateral, formed part of his estate at common law, and was subject to his debts like other property.35 But where a power simply collateral was a power in the nature of a trust, it was not, of course, a beneficial power at the common law. This distinction is preserved in this section of the Real Property Law. Under this section a grant of an absolutely beneficial power carries a fee even where no estate is given to the grantee of the power.36 But a general beneficial power of 30 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, 8 460. 31 Repealed, chap. 547, Laws of 1896. 32 § 152, Real Prop. Law, et supra, p. 627. 33 153, Real Prop. Law, et supra, p. 627. 34 Supra, p. 575. 35 Sugd. Pow. 27. 36 Kinnier v. Rogers, 42 N. Y. 531, 534; Taggart v. Murray, 53 id. 233, 238; Crooke v. County of Kings, 97 id. 421, 450; Wendt v. Wendt, 164 id. 154; Ullman v. Cameron, 186 id. 339. appointment to be executed by will, given to a beneficiary of a trust fund, it seems, is not within this section, and the same rule applies where the trust is of lands.37 Certain Limitations over Saved. This section does not, however, avoid the vesting of any original limitation over, to take effect in defeasance of the base fee which the statute has thus carried to the grantee of such a power, unless the rights of his creditors, purchasers and incumbrancers have supervened.38 Whether such rights shall or shall not arise is always within the control of the grantee of an absolute and general power, or the power would not be absolute and general. Future estates, overriden by such a power, are thus made contingent upon the exercise of the power,39 but a limitation of such estates does not necessarily suspend the power of alienation unless the estates are limited to persons not in being.40 It must be obvious that no ulterior limitation, which may be defeated at the will of an owner of a prior estate in fee, can now be said to suspend the power of alienation. Such a limitation resembles a limitation of a remainder after an estate in fee tail. At common law a remainder on a fee tail was not void, because it could always be barred.42 43 Power to Beneficiaries of a Trust to Appoint - Cutting v. Cutting. Under our present law the beneficiary of a trust takes no estate, legal or equitable. A general beneficial power to such beneficiary to devise the estate by his last will, even if executed, does not carry the fee to him or as to his creditors.44 The same principle is now applied when the power to the beneficiary of the trust is to appoint. the remainder by deed.45 37 Cutting v. Cutting, 86 N. Y. 522; Hume v. Randall, 141 id. at p. 503; Genet v. Hunt, 113 id. 158; Trask v. Sturgis, 31 Misc. Rep. 195; Farmers' Loan & Trust Co. v. Kip, 120 App. Div. 347, 192 N. Y. 266; and see above, pp. 627, 628. 38 Query, are not incumbrancers creditors? 39 Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175. 40 Supra, pp. 274, 300. 41 Supra, pp. 273, 274 42 Supra, p. 266. 438 100, Real Prop. Law. The last revisers made a mistake in changing the language of this section, but the meaning is clear. 44 Cutting v. Cutting, 86 N. Y. 522; Hume v. Randall, 141 id. 499; Genet v. Hunt, 113 id. 158; Kelley v. Hogan, 71 App. Div. 343; cf. Ullman v. Cameron, 186 N. Y. 339; Solley v. Westcott, 43 Misc. Rep. 188; Dudley v. Peoples' Trust Co., 57 id. 230; supra, p. 627. 45 Farmers' Loan & Trust Co. v. Kip, 120 App. Div. 347; affd., 192 N. Y. 266. § 151. When grantee of power has absolute fee. Where such a power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee is entitled to an absolute fee. Formerly section 131, Real Property Law of 1896, chapter XLVI, General Laws: § 131. When grantee of power has absolute fee.- Where such a power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee is entitled to an absolute fee.46 Section 131 was formerly Revised Statutes, 733, section 83: 83. In all cases, where such power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee.47 Former Law. Prior to the Revised Statutes a simple devise or bequest"to the discretion" of another, who had no prior life interest, passed a fee.18 But where a life interest, or a remainder, was limited, the devise was held to be a devise of a power, not of an interest.49 These were cases of informal disposition by wills, and many like cases arose, difficult of construction. The Revised Statutes. The Revised Stautes 50 carefully defined the instances where the donation of a power passes a fee, and these instances this statute perpetuates. An absolute or general beneficial Fower confers a fee on the grantee.51 Power Superadded to a Fee Merges. Sometimes a power of sale is superadded to a fee, usually by a person inops consilii.52 In such cases the power is merged in the fee, although in some cases a power may subsist with a fee.53 The Present Act. Section 14954 provides for a case where the grantee of the power has an estate in the lands. Section 15055 provides for a case where the grantee of the power has no estate in 46 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 47 Repealed, chap. 547, Laws of 1896. 48 Whiskon v. Cleyton, I Leon. 156. 49 Harrington v. Harte, Cox, 131; cf. Smith v. Floyd, 140 N. Y. 337. 50 88 149-153, Real Prop. Law. 51 See $ 149, 150; and supra, p. 625; infra, pp. 634, 636. 52 Jennings v. Conboy, 73 N. Y. 230; Fay v. Taylor, 31 Misc. Rep. 32. 53 Chance, Pow. 16; 2 id. 623; Rankine v. Metzger, 69 App. Div. 264; In re L'Hommedieu, 138 Fed. Rep. 606, 610. 54 Supra, Real Prop. Law. the lands. This section56 furnishes a rule of construction of a limitation containing no special grant of an estate to the donee of such a power, and no grant of a remainder. In such a case an estate might result to the grantor of the power at common law.57 But, under the circumstances specified in this present section, no estate now results, but the mere gift of the power passes a fee to donee of the power.58 The absence of any limitation by way of remainder is thus now made conclusive evidence, that the donee of the power takes an interest, and not a mere power. The gift passes a fee not only as to creditors, purchasers and incumbrancers, but as to all the world.59 General Beneficial Power of Appointment. Under a general and beneficial power of appointment, the grantee may appoint to himself or to any one else he pleases.60 Under such circumstances it is apparent that an absolute power of disposition ought to carry the estate in fee simple absolute, where no remainder is limited by the settlor. Power to Dispose of Corpus. Where a power is given to tenant of a preceding estate to use the corpus if necessary with remainders over, the power does not carry a fee to the grantee. 56 § 151, supra. 57 Sir E. Clere's Case, Co. Litt. IIIb, 271b. 58 Jennings v. Conboy, 73 N. Y. 230, 237; Taggart v. Murray, 53 id. 233, 238; Ward v. Standard, 82 App. Div. 386, 393. 59 Taggart v. Murray, 53 N. Y. at p. 238; Matter of Moehring, 154 id. 423, 427; Ryder v. Lott, 123 App. Div. 685; cf. Swarthout v. Ranier, 61 143 N. Y. 499, and § 577, Chapl. Express Trusts & Pow. 60 Hubbard v. Gilbert. 25 Hun, 596; Matter of Moehring, 154 N. Y. 423, 427; Monjo v. Woodhouse, III App. Div. 80, 185 N. Y. 295; Farmers' Loan & Trust Co. v. Kip, 192 N. Y. 266, 285. 61 See pp. 365, 628, supra; and Harrison v. Knoblauch, 130 App. Div. 378. § 152. Effect of power to devise in certain cases. Where a general and beneficial power to devise the inheritance is given to a tenant for life, or for years, such tenant is deemed to possess an absolute power of disposition within the meaning of and subject to the provisions of the last three sections. Formerly section 132, Real Property Law of 1896, chapter XLVI, General Laws: $132. Effect of power to devise in certain cases.- Where a general and beneficial power to devise the inheritance is given to a tenant for life, or for years, such tenant is deemed to possess an absolute power of disposition with the meaning of and subject to the provisions of the last three sections.62 Section 132 was formerly 1 Revised Statutes, 733, section 84: $84. Where a general and beneficial power, to devise the inheritance, shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections.63 Comment. This section, on its face, is complementary of the provisions contained in the three preceding sections. It points out when a power to devise is an absolute power of disposition within the meaning of those sections. A power to devise must be both beneficial 65 and general, in order to be an absolute power of disposition within such sections, if it be given to one who has a legal estate for life, or for years, in the property subject to the power.67 Where there was a devise to one for life with a general power to devise, but not to convey, it was held that the devisee took an absolute fee under this section.68 But where there is a trust estate and a power to appoint by deed, or to devise generally, given to a beneficiary of the trusts, such 62 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 63 Repealed, chap. 547, Laws of 1896. 64 Real Prop. Law, 88 149, 150, 151. C5 Supra, Real Prop. Law, § 136. 66 Real Prop. Law, § 134; and see the cases cited on p. 628, supra, on absolute power of disposition, § 149. 67 Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175, 178; Cutting v. Cutting, 86 N. Y. 522, 532; Hume v. Randall, 141 id. at p. 505; Kelley v. Hogan, 71 App. Div. 343; Dudley v. People's Trust Co., 57 Misc. Rep. 230. 68 Deegan v. Van Glahn, 75 Hun, 39; Deegan v. Wade, 144 N. Y. 573; cf. Taggart v. Murray, 53 id. at p. 238. |
