§ 173. Consent of grantor or third person to execution of power. Where the consent of the grantor or a third person to the execution of a power is requisite, such consent shall be expressed in the instrument by which the power is executed, or in a written certificate. In the first case, the instrument of execution, in the second, the certificate, must be subscribed by the person whose consent is necessary; and to entitle the instrument to be recorded, such signature must be acknowledged or proved and certified in like manner as a deed to be recorded.

Formerly section 153, Real Property Law of 1896, chapter XLVI, General Laws:

§ 153. Consent of grantor or third person to execution of power.- Where the consent of the grantor or a third person to the execution of a power is requisite, such consent shall be expressed in the instrument by which the power is executed, or in a written certificate thereon. In the first case, the instrument of execution, in the second, the certificate, must be subscribed by the person whose consent is necessary; and to entitle the instrument to be recorded, such signature must be acknowledged or proved and certified in like manner as a deed to be recorded.15

Section 153 was formerly 1 Revised Statutes, 736, section 122:

122. When the consent of a third person to the execution of a power is requisite, such consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon. In the first case, the instrument of execution, in the second, the certificate, shall be signed by the party whose consent is required; and to entitle the instrument to be recorded, such signature must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of lands.16

Construction of Section. The consent of a single third person may still be made requisite, as at common law,17 to the due execution of a power. And if such person die before the consent is manifest, the power, unless otherwise provided in the grant of the power, is gone.18 Whenever such consent is required, it must be manifested with the formalities required by this section, and an informal con

15 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 16 Repealed, chap. 547, Laws of 1896.

17 Hawkins v. Kemp, 3 East, 410; 1 Sugd. Pow. 253.

18 Kissam v. Dierkes, 49 N. Y. 602; Mott v. Ackerman, 92 id. 539; Phillips v. Davies, id. 199; Gulick v. Griswold, 14 App. Div. 85; affd., 160 N. Y. 399; Stokes v. Hyde, id. 530; Schreyer v. Schreyer, 43 Misc. Rep. 520; affd., 101 App. Div. 456, 461.

sent is insufficient.19 The present section of this act places the consent of grantor in the same category as consents of third persons; but it does not require a consent to be actually on the instrument extending the power.20

When Third Person Dead. A limitation may be so framed as to make it apparent that grantor intended to make the consent of a third person conditional only upon such third person's being alive at the time of the execution of the power.2

19 Barber v. Cary, 11 N. Y. 397; cf. Stokes v. Hyde, 14 App. Div. 530; Hoyt v. Hoyt, 17 Hun, 192; s. c., 85 N. Y. 142; Gardner v. Dembinsky, 52 App. Div. 473, 475; Schreyer v. Schreyer, 101 id. 456, 460; Hilton v. Lowenfield, 53 Misc. Rep. 152.

21

20 See note 20, Appendix I.

21 House v. Raymond, 3 Hun, 44; Kimball v. Chappell, 27 Abb. N. C. 437; Odell v. Youngs, 64 How. Pr. 56; Hoyt v. Hoyt, 85 N. Y. 142; Phillips v. Davies, 92 id. 199.

§ 174. When all must consent. Where the consent of two or more persons to the execution of a power is requisite, all must consent thereto; but if, before its execution, one or more of them die, the consent of the survivor or survivors is sufficient, unless otherwise prescribed by the terms of the power.

Formerly section 154, Real Property Law of 1896, chapter XLVI, General Laws:

8 154. When all must consent.- Where the consent of two or more persons to the execution of a power is requisite, all must consent thereto; but if, before its execution, one or more of them die, the consent of the survivor or survivors is sufficient, unless otherwise prescribed by the terms of the power.

Section 174, Supra. The Commissioners of Statutory Revision announced that this section was new in the General Laws, and that the last clause prescribes a new rule.22

Construction of Section 174, Supra. The Commissioners of Statutory Revision were undoubtedly correct in their statement,23 that a power, the execution of which was made entirely dependent on the consent of two or more persons, was extinguished by the death of such persons before consent.24 As this section of the Real Property Law is framed it does not, however, preclude the extinguishment of a power by the death of one of several persons whose consent is so made requisite; provided that the consent of the deceased was indispensable to the execution of the power by the very terms of the grant, and he died before such consent given.

Consent. The limitation may be so framed as to require the consent of certain officers25 or of a class.26 In such cases the wisdom of the rule stated in this section is apparent and even declaratory of pre-existing decisions.

22 Report of Commissioners of Statutory Revision, § 154 (Appendix II, infra), citing Barber v. Cary, 11 N. Y. 397; see Hilton v. Lowenfeld, 53 Misc. Rep. 152.

23 Note to section, Appendix II, infra.

24 Gulick v. Griswold, 160 N. Y. 399; and see the cases cited, supra, under 173, Real Prop. Law; and cf. Farw. Pow. (1st ed.) 117.

25 Correll v. Lauterbach, 14 Misc. Rep. 469; cf. People ex rel. Loew v. Batchelor, 28 Barb. 310; Perry v. Tynen, 22 id. 137; People ex rel. Hawes v. Walker, 23 id. 304, as to statutory powers.

26 Hoyt v. Hoyt, 85 N. Y. 142; Hamilton v. N. Y. Stock E. B. Co., 20 Hun, 88.

Consent Conditional on Living. Again, the grant of a power may be so framed as to make it apparent that the consent of third persons was only provisional or conditional upon their being alive at a certain time.27

Section not Retroactive.

This section is not retroactive.28

27 See the cases to this effect cited under $173, Real Prop. Law.

28 Gulick v. Griswold, 160 N. Y.

399; Wells v. Brooklyn Union Elevated Railroad Co. (No. 1), 121 App. Div. 491.

§ 175. Omission to recite power. An instrument executed by the grantee of a power, conveying an estate or creating a charge, which he would have no right to convey or create, except by virtue of the power, shall be deemed a valid execution of the power, although the power be not recited or referred to therein.

Formerly section 155, Real Property Law of 1896, chapter XLVI, General Laws:

$155. Omission to recite power.- An instrument executed by the grantee of a power, conveying an estate or creating a charge, which he would have To right to convey or create, except by virtue of the power, shall be deemed a valid execution of the power, although the power be not recited or referred to therein,29

Section 155 was formerly 1 Revised Statutes, 737, section 124:

$124. Every instrument executed by the grantee of a power, conveying an estate or creating a charge, which such grantee would have no right to convey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein.30

Comment. This section and section 267 of this act furnish rules of construction applicable only under the circumstances there denoted.31 The rule stated in this section is founded on a reasonable presumption, recognized by the common law. If a grantee of a power deal with specific property in which he has no interest, except under a grant of such power, the dealing, if authorized, should be regarded as an execution of the power, although no reference be made to the power. 33

This section has no application where the grantee has both an interest and a power, and in such cases the execution is presumed to refer to the interest and not to the power.34

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

30 Repealed, chap. 547, Laws of 1896.

31 Mut. Life Ins. Co. v. Shipman, 119 N. Y. 324; White v. Hicks, 33 id. 383; Weinstein v. Weber, 178 id. 94, 100.

322 Chance, Pow. 84; White v. Ilicks, 33 N. Y. at p. 393; Sir E. Clere's Case, 6 Rep. 17b.

33 Doody v. Holwedell, 22 App. Div. 456; Albany Exchange Savings Bank v. Brass, 59 id. 370; § 267, Real Prop. Law.

34 Mut. Life Ins. Co. v. Shipman, 119 N. Y. 324; Weinstein v. Weber, 58 App. Div. 112; affd., 178 N. Y. 94; Vines v. Clarke, III App. Div. 12; Merolla v. Lane, 122 id. 535; and see under the following section of this act.