amendments to the Law of Charitable Uses in this State.99 But the principle stated in our text, that only valid trust powers, and not invalid trust powers, can fall under this section of the Real Property Law, must be too obvious to require any citation of authority whatever. Only those powers which are recognized as valid in law or equity can devolve by operation of law on the death of the grantee of the power; for devolution of title by operation of law is always sub modo. 99 § 113, Real Prop. Law, chap. 701, Laws of 1893. § 162. When creditors may compel execution of trust power. The execution, wholly or partly, of a trust power may be adjudged for the benefit of the creditors or assignees of a person entitled as a beneficiary of the trust, to compel its execution, where his interest is assignable. Formerly section 142, Real Property Law of 1896, chapter XLVI, General Laws: § 142. When creditors may compel execution of trust power. The execution, wholly or partly, of a trust power may be adjudged for the benefit of the creditors or assignees of a person entitled as a beneficiary of the trust, to compel its execution, where his interest is assignable.1 Section 142 was formerly 1 Revised Statutes, 735, section 103: § 103. The execution in whole or in part, of any trust power, may be decreed in equity, for the benefit of the creditors or assignees of any person entitled as one of the objects of the trust, to compel its execution, when the interest of the objects of such trust is assignable.2 "5 Comment. This section places the creditors of the beneficiary of a trust power in the shoes of the beneficiary, when the interest of such beneficiary is a sum in gross or assignable.3 Before the Revised Statutes powers in trust were imperative and might be enforced in equity for the benefit of all entitled persons "indiscriminately." But no trusts other than charitable uses are enforceable in this State, unless the trust purpose is one recognized as equitable, and there is a definite beneficiary entitled to enforce the trust. If a debtor is not entitled to the benefit of an execution of a power, it is very clear that this section confers no greater right on his creditors. So the creditor's claim must be one established by law, and not one in contention, in order to fall under this section.8 Creditors Aided when Execution Defective. If an execution of a trust power is defective it is clear that creditors, under this section, have a right to the aid of a court of equity, although the following section of this act might, from its present juxtaposition, appear to exclude them. 1 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 2 Repealed, chap. 547, Laws of 1896. 3 § 103, Real Prop. Law; Matter of Gantert, 136 N. Y. 106. 42 Chance, Pow. 555. 52 Chance, Pow. 557, citing Butler's note to Co. Litt. 290b. Read v. Williams, 125 N. Y. 560, 569; cf. § 113, Real Prop. Law, supra. 7 Clark v. Crego, 47 Barb. 599, 614; Marvin v. Smith, 56 id. 600, 606; Cutting v. Cutting, 20 Hun, 260, 369. 8 Marvin v. Smith, 56 Barb. at p. 607; Harvey v. Brisbin, 143 N. Y. 151. 98 163, Real Prop. Law. § 163. Defective execution of trust power. Where the execution of a power in trust is defective, wholly or partly, under the provisions of this article, its proper execution may be adjudged in favor of the person designated as the beneficiary of the trust. Formerly section 143, Real Property Law of 1896, chapter XLVI, General Laws: § 143. Defective execution of trust power. Where the execution of a power in trust is defective, wholly or partly, under the provisions of this. article, its proper execution may be adjudged in favor of the person designated as the beneficiary of the trust.10 Section 143 was formerly 1 Revised Statutes, 737, section 131: 131. Where the execution of a power in trust shall be defective, in whole or in part, under the provisions of this article, its proper execution may be decreed, in equity, in favor of the persons designated as the objects of the trust.11 15 Defective Execution of Powers. At law, defective executions of powers were nugatory. In equity the case was different as to certain persons, and relief was given in favor of general classes of persons: (1) Purchasers; 12 (2) creditors; 13 (3) wife; 14 (4) legitimate children; (5) charity.16 The original revisers of the statutes cannot have contemplated limiting the classes of persons entitled to resort to equity for aid of a defective execution.17 Nor at the time the Revised Statutes were enacted could the Legislature thus have detracted from the equitable jurisdiction of the chancellor who was a constitutional officer. It is rather to be presumed that this section will receive a wider construction so as to aid all, of whatever class, who have any valid interest in the enforcement of the trust power. 18 Void or Defective Execution. The distinction between a void and a defective execution of powers is not changed by this section.19 10 Repealed by Real Prop. Law of 1909, 8 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 11 Repealed, chap. 547, Laws of 1896. 12 2 Chance, Pow. 494; 2 Sugd. Pow. 93; Schenck v. Ellingwood, 3 Edw. Ch. 175. 13 2 Chance, Pow. 494. 14 2 Sugd. Pow. 93. 15 2 Sugd. Pow. 94. 17 Cf. §§ 157, 180, Real Prop. Law. 18 Cf. § 137, Real Prop. Law; Matter of Gantert, 136 N. Y. 106; Marvin v. Smith, 56 Barb. 600, 606; Bostwick v. Beach, 103 N. Y. 414, 421; and see § 180, Real Prop. Law, as to purchasers. 19 Austin v. Oakes, 48 Hun, 492; s. c., 117 N. Y. 577; Hillen v. Iselin, 144 id. at p. 365; cf. Farw. Pow. (1st ed.) 262 seq. Defective Execution Aided. Where the power is not a trust power, the ordinary equitable rules relating to defective executions continue to apply, as the equitable jurisdiction remains unaffected by statutory or constitutional changes.20 Power of Revocation. What constitutes an execution of a power of revocation is specified in a subsequent section of this act.21 20 Monjo v. Woodhouse, 185 N. Y. 21 § 267, Real Prop. Law. 295, 300. § 164. Effect of insolvent assignment. A beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass, respectively, to a trustee or committee of the estate of the person in whom the power or interest is vested, or an assignee for the benefit of creditors. Formerly section 144, Real Property Law of 1896, chapter XLVI, General Laws: § 144. Effect of insolvent assignment.— A beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass, respectively, to a trustee or committee of the estate of the person in whom the power or interest is vested, or an assignee for the benefit of creditors.22 Section 144 was formerly 1 Revised Statutes, 735, section 104: § 104. Every beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass to the assignees of the estate and effects of the person in whom such power or interest is vested, under any assignment authorized by the provisions of the fifth chapter of this act.23 English Acts. The early Bankrupt Acts of England 24 provided for the devolution or execution of certain powers in favor of creditors of a donee of a power.25 The Revised Statutes. The Revised Statutes adopted the same general principles,26 with modifications as to the assignment of certain contingent interests not vesting in possession or interest within three years.27 Committee of Lunatics. Committees of persons adjudged incapable of administering their own affairs fall under this section of the Rea! Property Law, and are entitled to execute a beneficial power vested in the insane or incompetent grantee of the power. As a beneficial power is property of the grantee as much as any visible or tangible thing can be, it is obvious that this section of this act must be liberally construed, even as against persons entitled by way of contingent remainder to the subject-matter of the power. 22 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 23 R. S., pt. 2, chap. 5, relating to assignments of estate; repealed, chap. 245, Laws of 1880; 1 R. S. 735, 104; repealed, chap. 547, Laws of 1896. 19. 24 13 Eliz., chap. 7; 21 Jac. I, chap. 251 Sugd. Pow. 224. 26 Clark v. Crego, 47 Barb. 599, 614; Marvin v. Smith, 56 id. 600, 606; s. c., 46 N. Y. 571. 27 Cutting v. Cutting, 86 N. Y. at P. 543; s. c. below, 20 Hun, 360, 369. |