§ 165. How power must be executed. A power can be executed only by a written instrument, which would be sufficient to pass the estate, or interest, intended to pass under the power, if the person executing the power were the actual

owner.

Formerly section 145, Real Property Law of 1896, chapter XLVI, General Laws:

§ 145. How power must be executed. A power can be executed only by a written instrument, which would be sufficient to pass the estate, or interest, intended to pass under the power, if the person executing the power were the actual owner.28

Section 145 was formerly 1 Revised Statutes, 735, section 113:

§ 113. No power can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner.29

Intent of Section. Since the Statute of Frauds an estate or interest in lands can be passed only by conveyance in writing.30

Prior to the Revised Statutes, where the instrument creating a power required certain formalities to be observed in executing it, the donee of the power must have strictly observed them,31 although in the absence of such a direction the most informal execution of a power answered.32 The former involved rules relating to the execution of powers 33 were intended to be reduced by the Revised Statutes to a few simple principles. An execution of powers by informal instruments was intended to be done away with, and the instruments in execution of powers were reduced to two, a deed 34 and a will.35 To these Mr. Chaplin, in his work on Powers, adds a third instrument, a contract.3 But a contract in this sense where

36

28 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 29 Repealed, chap. 547, Laws of 1896.

30 See 2 R. S. 134, § 6, now $242, Real Prop. Law.

31 Strahan, Prop. 171.

32 In re Broad Smith v. Draeger, 2 Ch. 86, and note of original revisers on article on Powers, Appendix III, infra.

33 Chap. 6, Sugd. Pow.; chap. 9, Chance, Pow.

34 Supra, §§ 165, 242, Real Prop. Law; Barber v. Cary, 11 N. Y. 397; Wainwright v. Low, 132 N. Y. 313.

35 §§ 167, 168, 242, Real Prop. Law; Matter of Gardner, 140 N. Y.

122.

36 § 625, Ex. Trust & Pow., citing Bostwick v. Beach, 103 N. Y. 414, 421; cf. Whitlock v. Washburn, 62 Hun, 369; Demarest v. Ray, 29 Barb. 563.

it is sufficient to comply, with the present Statutes of Frauds and Uses, is a conveyance or deed; and it is apprehended that a merely executory contract is not an execution of the power.37 Since the abolition of seals to conveyances, it is apparent that the written instrument in execution of a power need no longer be a deed.

The Revised Statutes. In the Revised Statutes the foregoing section was supplemented by 1 Revised Statutes, 736, section 114: "Every instrument, except a will, in execution of a power, and, although the power may be a power of revocation only, shall be deemed a conveyance within the meaning and subject to the provisions of the third chapter of this act." 38 The latter section is not re-enacted in the article on Powers of the Real Property Law, but purports to be contained in article 9 of this act,39 so that a mere power of revocation may be recorded, although strictly it is not a deed of conveyance.

Construction of Section.

This section of the Real Property Law 40 strictly refers to deeds or instruments of conveyance inter vivos and not to wills in execution of powers. If a power is to be executed by deed it must be executed by an instrument good as a conveyance under the law of New York.41

Married Women. Formerly a married woman, executing a power by deed, must be separately examined in order to execute the power well by deed; 42 but this is no longer necessary.13

43

Power - How Executed. Where the power is directed to be " executed by writing," either a deed or will is a good execution.44

Execution of Power of Revocation. A subsequent section of this act should be read in connection with any investigation of the defective execution of powers.45

37 Bostwick v. Beach, 103 N. Y. at p. 421; Whitlock v. Washburn, 62 Hun, 369; Demarest v. Ray, 29 Barb. 563.

38 The chapter relating to the Proof and Recording of Conveyances of Real Estate.

39 290, Real Prop. Law.

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

41 Barber. Cary, 11 N. Y. 397, 398; Jackson v. Edwards, 22 Wend. at p. 508; § 168, Real Prop. Law; Coleman v. Beach, 97 N. Y. 545, 556. 42 Jackson v. Edwards, 22 Wend. 508; 1 R. S. 736, § 117.

43 Chap. 249, Laws of 1879, as amended. Sec. 302 Real Prop. Law. 441 Sugd. Pow. 262; In Matter of Gardner, 140 N. Y. 122.

45 § 267, Real Prop. Law.

§ 166. Execution by survivors. Where a power is vested in two or more persons, all must unite in its execution; but if before its execution, one or more of such persons dies, the power may be executed by the survivor or survivors.

Formerly section 146, Real Property Law of 1896, chapter XLVI, General Laws:

§ 146. Execution by survivors.- Where a power is vested in two or more persons, all must unite in its execution; but if before its execution, one or more of such persons dies, the power may be executed by the survivor or survivors.451⁄2

Section 146 was formerly 1 Revised Statutes, 735, section 112:

§ 112. Where a power is vested in several persons, all must unite in its execution; but if previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors.46

Former Law Re-enacted. At common law, if a naked power was vested in two, or more, nominative, without any reference to an office liable to survive as an executorship is, it, without doubt, would be a contradiction of the general rule, to allow the power to survive.48 By Statute in England (21 Hen. VIII, chap. 4), a part of executors were allowed to execute a power created by will, when others refused to accept the charge. This statute was re-enacted in New York, and in the Revised Statutes,50 as set out above.

49

Construction of Section. This section of the present act does not, however, authorize the execution of a power by some of the donees of a power, except in the event it specifies the death of one or more before execution.51 Thus, if all the executors qualify all

45% Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See $ 460.

46 Repealed, chap. 547, Laws of 1896.

47 But where power was to three, or any of them, a sale by two held good. Townesend v. Walley, Moore, 341.

48 Note, Co. Litt. 113a, cited in Sinclair v. Jackson, 8 Cow. 543, 554; 1 Sugd. Pow. 143; Taylor v. Morris, 1 N. Y. 341, 358; Osgood v. Franklin, 2 Johns. Ch. 1, 19; Niles v.

Stevens, 4 Den. 399; Roseboom v.
Mosher, 2 id. 62.

49

50

2 J. & V. 95; 2 R. L. 366.

I R. S. 735, § 112; 2 id. 109, $ 55; Ogden v. Smith, 2 Paige, 175; Niles v. Stevens, 4 Den. 399; cf. $ 2642, Code Civ. Proc.; Draper v. Montgomery, 108 App. Div. 63.

51 Herriott v. Prime, 87 Hun, 95; affd., 155 N. Y. 5; Brown v. Doherty, 93 App. Div. 190, 135 N. Y. 383; Lewine v. Gerardo, 60 Misc. Rep. 260, 265.

must execute a power of sale given nominatim to executors,52 and it is even said that, if one of the grantees of a power resign, the court must supply the vacancy in order to make a good execution of a power.53

Power of Sale. How far a power of sale is personal, or how far in trust, is often the question in cases where a grantee of a power dies before execution.54

Power of Sale Executed by One of Two Executors. A power of sale may be executed by one of two acting executors under certain circumstances, such as the death of one of the executors during an inchoate sale. But as a rule all the executors must unite in the execution of a power or the execution will be insufficient.55

Where Executors of a Power Refuse to Qualify. Where certain of the designated executors refuse to qualify, a testamentary power may now be executed by those who do qualify,56 although before the Revised Statutes the rule was otherwise, unless the power was coupled with an interest or was in trust.57 But at present all who so qualify must, under this section, unite in the execution of the power, unless, in the grant of the power, it is otherwise expressly provided.58

52 In the Matter of Van Wyck, I Barb. Ch. 565; Berger v. Duff, 4 Johns. Ch. 368; Wilder v. Ranney, 95 N. Y. 7, and see below, under this section.

53 In the Matter of Van Wyck, I Barb. Ch. 565; Weeks v. Frankel, 128 App. Div. 223, 225; sed cf. § 637, Chapl. Express Trusts & Pow, and cases cited.

54 Niles v. Stevens, 4 Den. 399, 404; Mott v. Ackerman, 92 N. Y. 539, 552; Greenland v. Waddell, 116 id. 234, 240; Boyce v. Adams, 123 id. 402; cf. Gilchrist v. Rea, 9 Paige, 72; Dominick v. Michael, 4 Sandf. 374; Conklin v. Egerton, 21 Wend. 430; Kent v. Shephard, 115 App. Div. 64; Weeks v. Frankel, 128 id. 223, 225; Scott v. Douglas, 39 Misc. Rep. 555, and see supra, pp. 470, 483, 538.

55 Brown v. Doherty, 93 App. Div.

190, 185 N. Y. 383, 389; Brennan v. Wilson, 71 id. 502; Lynde v. Buckley, 82 App. Div. 614; supra, pp. 538, 662. 56 Code Civ. Proc., § 2642; 2 R. S. 109, 55; Ogden v. Smith, 2 Paige, 197; Taylor v. Morris, 1 N. Y. 341, 358; Bunner v. Storm, 1 Sandf. Ch. 358; Sharp v. Pratt, 15 Wend. 610; Dominick v. Michael, 4 Sandf. 374; Meakings v. Cromwell, 2 id. 512; affd., 5 N. Y. 136; Leggett v. Hunter, 19 id. 445, 455; Draper v. Montgomery, 108 App. Div. 63.

57 Franklin v. Osgood, 14 Johns. 527; s. c., 2 Johns. Ch. 1; Niles v. Stevens, 4 Den. 399.

58 Berger v. Duff, 4 Johns. Ch. 368; Wilder v. Ranney, 95 N. Y. 7: Fleming v. Burnham, 100 id. 1; cf. Whitlock v. Washburn, 62 Hun, 369, 372.

:

Power in Trust, how to be Framed. In framing a grant or limitation of a power in trust, it is desirable to provide (1) for the refusal of any of the grantees to accept the trust, and (2) for their several deaths or removals, and (3) for the resignation of any of them, although in the case of powers to executors or testamentary trustees the statute may provide for several of such contingencies. This section of the act applies to both a settlement inter vivos and one by will.