§ 167. Execution of power to dispose by devise. Where a power to dispose of real property is confined to a disposition by devise or will, the instrument must be a written will, executed as required by law.

Formerly section 147, Real Property Law of 1896, chapter XLVI, General Laws:

§ 147. Execution of power to dispose by devise.— Where a power to dispose of real property is confined to a disposition by devise or will, the instrument must be a written will, executed as required by law.59

Section 147 was formerly 1 Revised Statutes, 736, section 115:

$ 115. Where a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be a will duly executed, according to the provisions of the sixth chapter of this act.60

Comment on Section. By the old law, if a will is required a power may not be executed by deed.61 This statute has not, in this respect, changed the former law of powers. But it has put an end to informal testamentary executions. Under the above section of this act a will in execution of a power must comply with the statute relating to wills,62 if the power is executed in this State or relates to real estate situate here.63 If executed in another State the maxim" locus regit actum" may also apply.

64

How far Prior Will an Execution. How far a prior will may now be regarded as an execution of a power subsequently granted, query. Farwell, in his treatise on Powers, is of the opinion that at common law a general power of appointment may be well executed by a will executed previously to the creation of the power.66 Mr. Chaplin

Repealed by Real Prop.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

60 2 R. S. 56 seq. (Chap. VI); 1 id. 736, 115, repealed, chap. 547, Laws of 1896.

61 Sugd. Pow. 255, 256. Any instrument of a testamentary character was, however, a good execution. Id. 260.

62 Amer. Home Miss. v. Wadhams, 10 Barb. 597; cf. Coleman v. Beach, 97 N. Y. 545.

63 Lynes v. Townsend, 33 N. Y. 558, 561; White v. Howard, 46 id. 144, 159.

64 Betts v. Betts, 4 Abb. N. C. 317, 389; cf. Ward v. Stanard, 82 App. Div. 386, 395.

65 Chapl. Ex. Trusts & Pow., $ 653; cf. Lynes v. Townsend, 33 N. Y. at p. 561.

66 Farw. Pow. (2d ed.) 222.

is of the opinion that whether this be so in New York, depends on the construction of the New York Statute of Wills.67 It would seem that unless our Statute of Wills is very clearly against the former rule, the common law should prevail.68

How far Prior Deed an Execution. It seems that a prior deed may be an execution of a power of appointment in certain instances.69

67 Chapl. Ex. Trusts & Pow., § 653. 68 Supra, p. 577, 578.

69 United

States Trust Co. V.

Chauncey, 32 Misc. Rep. 358; cf.

§ 267, Real Prop. Law.

§ 168. Execution of power to dispose by grant. Where a power is confined to a disposition by grant, it can not be executed by will, although the disposition is not intended to take effect until after the death of the person executing the power.

Formerly section 148, Real Property Law of 1896, chapter XLVI, General Laws:

§ 148. Execution of power to dispose by grant.- Where a power is confined to a disposition by grant, it cannot be executed by will, although the disposition is not intended to take effect until after the death of the person executing the power.70

Section 148 was formerly 1 Revised Statutes, 736, section 116:

§ 116. Where a power is confined to a disposition by grant, it cannot be executed by will, although the disposition is not intended to take effect until after the death of the party executing the power.71

72

Comment. A power to be executed by deed could not at common law be executed by will. It must at least be executed by an instrument under seal.73 At the present day the deed or "grant" required by this section cannot be of a testamentary character,74 but must respond to the requirements of the article on Conveyances and Mortgages.75 If a limitation of a power is general, without being confined to a deed or a will, it may be executed by either.76 In the Matter of Gardner, the Court of Appeals distinctly reiterate the last rule and say: "A general power to dispose of property includes the right to dispose of it by will, unless the grant of the power contains words which expressly or by fair implication exclude such a method of disposition." But where the power is limited to be executed by deed alone, it cannot be well executed by a testamentary disposition, even though the estate is not to take effect until after the death of the party executing the power.78

77

Execution of Power of Revocation. A prior deed may operate as an estoppel against the grantee of a power in some instances.79

§ 169. When direction by grantor does not render power void. Where the grantor of a power has directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power is not void, but its execution is to be governed by the provisions of this article.

Formerly section 149, Real Property Law of 1896, chapter XLVI, General Laws:

§ 149. When direction by grantor does not render power void.- Where the grantor of a power has directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power is not void, but its execution is to be governed by the provisions of this article.80

Section 149 was formerly 1 Revised Statutes, 736, section 118:

§ 118. Where the grantor of a power shall have directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules before prescribed in this article.81

Comment. As a general principle at common law, a power could be validly executed only by such instruments as were specified by the donor in the limitation of the power.82 But equity would often supplement a defective execution.83 The Revised Statutes, by the original of this section, did not aid a defective execution, but they did supplement an insufficient grant of a power; for a direction to do something in a manner not permitted may be regarded as an insufficient direction, if not an illegal direction, because it is one contrary to law. This section presumes that the grantor intended the power to be executed by a sufficient, not by an insufficient, instrument. It provides for a case not provided for by the common law. The section applies to all grants of powers whether contained in deeds or wills.

Application of this Section. If the grantor of a power direct the grantee of the power to execute it by a will, to be witnessed by one person only, clearly, by the law of New York, the will would not be sufficient to pass the estate. In such a case this section applies, and if the grantee of the power execute it by a will witnessed in conformity with the Statute of Wills by more than one witness the power is under this section well executed, although executed in a mode contrary to that directed by the grantor of the power and bad at common law.84

80 Repealed by Real Prop. Law of 1896, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 81 Repealed, chap. 547, Laws of

1896.

82 Farw. Pow. 262; 1 Sugd. Pow. 250; 1 Chance, Pow. 310.

83 Supra, p. 657.

841 Sugd. Pow. 251, 252, 253; cf. $171, Real Prop. Law.

§ 170. When directions by grantor need not be followed. Where the grantor of a power has directed any formality to be observed in its execution, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formality is not necessary to the valid execution of the power.

Formerly section 150, Real Property Law of 1896, chapter XLVI, General Laws:

§ 150. When directions by grantor need not be followed.- Where the grantor of a power has directed any formality to be observed in its execution, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formality is not necessary to the valid execution of the power.85

Section 150 was formerly 1 Revised Statutes, 736, section 119:

119. When the grantor shall have directed any formalities to be observed in the execution of the power, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power.86

Comment on Section. This section refers to "accumulative" or redundant "ceremonies," i. e., those which the grantor of the power prescribes as additional to the requirements of the law for an act of like nature. At common law, "accumulative" ceremonies directed by donor must be observed in the execution of a power. Thus, where the donor directed the power to be executed by a will "duly delivered," a delivery of the will to some persons present was held sufficient.87 The present section does not prohibit a limitation containing superflous, or accumulative, ceremonies, but it renders such superfluous ceremonies unnecessary to the valid execution of the power. Thus, a direction by a grantor of a power that a deed, to be executed under the power, shall be attested by two witnesses, is now equivalent to a direction that it shall be attested by one witness, as the law requires only one witness to a deed of conveyance.88

85 Repealed by Real Prop. Law of 1909, 8 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

86 Repealed, chap. 547, Laws of 1896.

87 Doe v. Holloway, I Starkie, 431.

Revisers' notes to article on Powers,
Appendix III, infra.

88 Schenck v. Ellingwood, 3 Edw. Ch. 175; Kissam v. Dierkes, 49 N. Y. 602, 604.