63

common law was altered by statute in England, so as to require the settlor to specify the amount of the shares designed, and otherwise leaving it to the discretion of the donee of the power, provided he gave something, however small, to each of the appointees. The most trifling amount would satisfy the statute.64

The Revised Statutes. The original revisers of the statutes of New York took up this branch of the law at a time when its reform was greatly mooted, but before the passage of "Sugden's Act" in England. It will be seen that they solved the difficulty in New York much in the same way that it was solved in England.65 Unless the settlor expressly left it to the donee of the power to determine the amount of a share, the Revised Statutes required equality of division.66

Appointment to a Class.

The basis of the execution of all powers of selection or appointment to a class is now equality, unless the settlor leave the amount or share to the absolute discretion of the grantee of the power. In construing such a power the presumption is in favor of equality; and a limitation, to the donee of the power of a discretion as to shares or amounts, must be clear.6s Where a power is given by devise to a donee to appoint property to "all, any or either" of several persons named, or to all, any or either of their lawful issue, the word "or," in the absence of any indication of a contrary intent, has a discretionary, not a substitutional import,69 and the word "issue" includes grandchildren as well as children.70

The donee of a power of appointment to a class may accomplish such division by charging the shares of one in favor of another object of the power, so as to produce equality.71

63 II Geo. IV, and 1 Will. IV, chap. 46.

64 Farw. Pow. 304.

65 I R. S. 734, $$ 98, 99, now 158, Real Prop. Law.

66 See notes of Revisers of the Revised Statutes on the originals of this section of the Real Prop. Law, and 160, Real Prop. Law.

67 Real Prop. Law, § 160; Conner v. Watson, I App. Div. 54; Austin v. Oakes, 117 N. Y. 577, 590; Meldon v. Devlin, 31 App. Div. 146, 157; Monjo v. Woodhouse, 46 Misc. Rep. 352, 11 App. Div. 80; affd., 185 N. Y. 275.

68 Matter of Conner, 6 App. Div.

594; Jones v. Jones, 8 Misc. Rep. 660; Shannon v. Pickell, 2 N. Y. St. Rep. 160; Re-extension of Church Street, 49 Barb. 555; Stuyvesant v. Neil, 67 How. Pr. 16; Stewart v. Keating, 15 Misc. Rep. 44; cf. Real Prop. Law, § 160.

69 Drake v. Drake, 134 N. Y. 220; Meldon v. Devlin, 31 App. Div. at p. 157; 2 White & Tudor, Lead. Cas. in Eq. 1077.

70 Drake v. Drake, 134 N. Y. 220: cf. Matter of Tenney, 104 App. Div. 290.

71 Monjo v. Woodhouse, 185 N. Y. 295.

§ 159. Beneficial power subject to creditors. A special and beneficial power is liable to the claims of creditors in the same manner as other interests that can not be reached by execution; and the execution of the power may be adjudged for the benefit of the creditors entitled.

Formerly section 139, Real Property Law of 1896, chapter XLVI, General Laws:

§ 139. Beneficial power subject to creditors. A special and beneficial power is liable to the claims of creditors in the same manner as other interests that cannot be reached by execution; and the execution of the power may be adjudged for the benefit of the creditors entitled.72

Section 139 was formerly 1 Revised Statutes, 734, section 93:

$93. Every special and beneficial power is liable, in equity, to the claims of creditors, in the same manner as other interests that cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled.73

Comment.

74

The beneficial interest a man took under the execution of a power formed a part of his estate before the Revised Statutes." But the creditor's remedy was not clear. The Revised Statutes declared that certain beneficial powers were estates in fee.76 Where a conversion of a power into a fee now takes place by operation of the statute, this section is not relevant, as the creditor's remedy is plainly against the legal estate by execution. But where such a conversion does not take place, and the power is special, beneficial and vested, the creditors of the grantee of such power may then resort to this section, and have the delinquent judgment debtor decreed to execute the power for the benefit of creditors.77

Married Women. A married woman, since the Married Women's Acts,78 stands in the same position in respect of a beneficial power under this section as a feme sole. Prior to those acts her restricte

72 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Con

solidated Laws.

73 Repealed, chap. 547, Laws of 1896.

742 Sugd. Pow. 27; Cutting v. Cutting, 86 N. Y. 522.

75 2 Sugd. Pow. 158.

761 R. S. 732, §§ 81, 82, 83, 84, 85, now $$ 149, 150, 151, 152, 153, Real Prop. Law.

77 Cutting v. Cutting, 86 N. Y. 522, 536; Kinnan v. Guernsey, 64 How. Pr. 253, 259; cf. Harvey v. Brisbin, 143 N. Y. 151.

78 Supra, p. 607, note 80.

power over her separate estate, by the common law, placed her in a peculiar juristic status, and while equity was more liberal than the legal tribunals in affording relief to her creditors, the chancellor could not compel a wife to execute a beneficial power, except under some circumstances.79

79 Cf. L'Amoureux v. Van Rensselaer, 1 Barb. Ch. 34, 37; Rogers v. Ludlow, 3 Sandf. Ch. 104, 109; Mar

vin v. Smith, 56 Barb. 600, 608; s. c.,

46 N. Y. 571; Vines v. Clarke, 111 App. Div. 12.

§ 160. Execution of power on death of trustee. If the trustee of a power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as beneficiaries of the trust.

Formerly section 140, Real Property Law of 1896, chapter XLVI, General Laws:

§ 140. Execution of power on death of trustee. If the trustee of a power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as beneficiaries of the trust.80

Section 140 was formerly 1 Revised Statutes, 734, section 100:

§ 100. If the trustee of a power, with the right of selection, shall die, leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated, as objects of the trust.81

Comment. Before the Revised Statutes it was said, that if the donee of a power was a trustee, and the court acquired jurisdiction of the power, it always decreed an equal distribution, for, although the trustee of the power might exclude some of the appointees, the court could not.82 The design of the original revisers was to abrogate the law sanctioning illusory appointments, and to effect equality of appointments as far as possible.83 The devolution of a trust power was, therefore, expressly made to conform to the devolution of estates held by trustees. That a power in the nature of a trust vested in the chancellor upon the death of a trustee, even before the Revised Statutes, was the opinion of one of the revisers.8 84 The statute made this point clear in every event,85 and, in addition, expressly directs equality of selection and appointment, without regard to the terms of the original limitation, if the trustee of the power die before its execution.86 Such was, however, Sugden's conception of the pre-existing law. Obviously in his opinion the maxim equality is equity" was to be applied, independently of statute, in all cases where a power devolved on a court of equity.87

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

81 Repealed, chap. 547, Laws of 1896. 82 Sed cf. 2 Chance, Pow. 561, criticising Sugden to this effect.

83 See above, p. 649, § 158.

84 Dominick v. Sayre, 3 Sandf. at p. 559.

85 Real Prop. Law, 88 111, 182; Hoey v. Kenny, 25 Barb. 396.

86 Dominick v. Sayre, 3 Sandf. 555; Leggett v. Hunter, 19 N. Y. at p. 459; Delaney v. McCormack, 88 id. 174, 182; Greenland v. Waddell, 116 id. 234, 242; Smith v. Floyd, 140 id. 337; Meldon v. Devlin, 31 App. Div. 46, 157; Wilson v. Van Epps, 38 Misc. Rep. 486, 492.

87 Quoted in 2 Chance, Pow. 561, and criticised.

§ 161. When power devolves on court.

Where a power in

trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its execution devolves on the supreme court.

Formerly section 141, Real Property Law of 1896, chapter XLVI, General Laws:

8 141. When power devolves on court.- Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its execution devolves on the supreme court.88

Section 141 was formerly 1 Revised Stat..tes, 734, section 101:

§ 101. Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery.89

90

Comment. The section furnishes another analogy between trusts, and powers in trust under this statute. The section is really a rule of construction in cases where a limitation of a power is defective. The cy pres doctrine in relation to powers does not prevail in this State, unless the power is to appoint to charity; yet the grant of a power may now arise by implication; 2 and where the person by whom the power is to be executed is impliedly designated, the courts will not interfere. But the trust purpose, under this section, must be one enforceable as a power 94 before the court can act.95

96

93

If no trustee of a power is named by the settlor, the court appoints its agent. Where the beneficiary and the sole trustee are the same person it is presumed that the court will appoint a trustee in order to save the trust.97

Read v. Williams. The case of Reed v. Williams, cited in the notes to this page,98 was, however, a charity case decided before the recent

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

89 Repealed, chap. 547, Laws of 1896.

90 Hillen v. Iselin, 144 N. Y. 365, 374; Holland v. Alcock, 108 id. 312, 330: Cottman v. Grace, 112 id. 299, 306.

91 See above, under § 113, Real Prop. Law.

92 Bogert v. Hertell, 4 Hill, 492; Dorland v. Dorland, 2 Barb. 63; Meakings v. Cromwell, 5 N. Y. 136,

139; Holland v. Alcock, 108 id. 312; s. c., 20 Abb. N. C. 447, 453.

93 Meakings v. Cromwell, 2 Sandf. 512; cf. Crocheron v. Jacques, 3 Edw. Ch. 207.

94 See above, under $8 137, 157, Real Prop. Law.

95 Read v. Williams, 125 N. Y. at

P. 569.

96 Kirk v. Kirk, 137 N. Y. 510; Myers v. McCullagh, 63 App. Div. 321, 327.

97 Supra, pp. 445, 446.

98 Read v. Williams, 125 N. Y. 560.