This section in terms includes appointments by either deeds or wills. In a very carefully considered opinion, this section is regarded as declaratory of the rules of construction prevailing in that country from whose jurisprudence our statutes in relation to powers were mainly derived." 35 Mutual Life Ins. Co. v. Shipman. The case last mentioned in our text36 is instructive not only in connection with this section, but with the entire article on Powers. The opinion there rendered shows the accuracy of the statement, made in the earlier pages of this work, to the effect that the existing law of powers is but a modification of the earlier common law, and that the statutory abolition of "powers," other than those tolerated in this article, did not essentially abridge the dominion of owners over their property or their right to delegate their powers over their estates.87 35 Mut. Life Ins. Co. v. Shipman, 119 N. Y. at p. 329. 36 Id., supra. 37 Supra, p. 571-579. § 176. When devise operates as an execution of the power. Real property embraced in a power to devise passes by a will purporting to convey all the real property of the testator, unless the intent that the will is not to operate as an execution of the power, appears, either expressly or by necessary implication. Formerly section 156, Real Property Law of 1896, chapter XLVI, General Laws: § 156. When devise operates as an execution of the power.- Real property embraced in a power to devise passes by a will purporting to convey all the real property of the testator, unless the intent that the will is not to operate as an execution of the power, appears, either expressly or by necessary implication.38 Section 156 was formerly 1 Revised Statutes, 737, section 126: 126. Lands embraced in a power to devise, shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear, expressly or by necessary implication.39 Old Law. At common law a general devise was not an appointment, where the grantee of the power had an interest, or other lands to answer to the devise.40 The general rule of the common law was that to execute a power there must be a reference to it ;41 but in the case of a will circumstances might be relied on to show that there was an intention to execute the power even where no reference was made to the power. 42 The Revised Statutes. The Revised Statutes made a general devise an execution of a power, unless circumstances rebutted the presumption that such was testator's intention.43 But where the 38 Repealed by Real Prop. Law of 1909, 8 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 39 Repealed, chap. 547, Laws of 1896. 40 2 Chance, Pow. 84; Mut. Life Ins. Co. v. Shipman, 119 N. Y. at p. 328. 411 Sugd. Pow. 371. 421 Sugd. Pow. 356, 371; Lockwood v. Mildeberger, 159 N. Y. 181, 185. 43 Hutton v. Benkard, 92 N. Y. 295; Mott v. Ackerman, id. 539; N. Y. Life Ins. & T. Co. v. Livingston, 133 id. 125; Kibler v. Miller, 57 Hun, 14; affd., 141 N. Y. 571; Van Woert v. Benedict, 1 Bradf. 114; Thomas v. Snyder, 43 Hun, 14; Matter of Pilfard, 42 id. 34; Bolton v. De Peyster, 25 Barb. 539, 564; Matter of Watson, 34 N. Y. St. Rep. 906; s. c., 39 id. 42; Lockwood v. Mildeberger, 159 N. Y. 181; U. S. Trust Co. v. Chauncey, 32 Misc. Rep. 358, 365; Farmers' Loan & Trust Co. v. Kip, 192 N. Y. 266, 286. testator had both a power and an interest, a general devise is still presumed to refer to the interest.44 Appointment by Deed. This section can have no reference to an appointment by deed, for in terms it is confined to devises. A deed, without reference to a power, may be construed either as a conveyance of an interest or as an execution of a power, according to the intention of the parties which is sought to be arrived at. 45 But as a rule, a general deed will be construed to refer to an interest where donee has both an interest and a power.46 Power of Revocation, how Executed. A power of revocation at the will of grantor is void as to purchasers and incumbrancers of grantor of any estate so liable to be revoked.47 Where such a power is given to a third person, a conveyance by such person for a valuable consideration is an execution of the power.48 A grant by such third person before he is entitled to execute such power operates as an estoppel.49 44 Mut. Life Ins. Co. v. Shipman, 119 N. Y. 324; Weinstein v. Weber, 58 App. Div. 112; Matter of Tenney, 104 id. 290; Vines v. Clarke, 111 id. 12; 1 Sugd. Pow. 412 seq. 45 I Sugd. Pow. 435; supra, p. 679. 462 Chance, Pow. 71; Weinstein v. Weber, 58 App. Div. 112, 178 N. Y.. 94, supra, p. 679. 47 $267, Real Prop. Law. 49 § 267, Real Prop. Law. § 177. Disposition not void because too extensive. A disposition or charge by virtue of a power is not void on the ground that it is more extensive than was authorized by the power; but an estate or interest so created, so far as embraced by the terms of the power, is valid. Formerly section 157, Real Property Law of 1896, chapter XLVI, General Laws: § 157. Disposition not void because too extensive. A disposition or charge by virtue of a power is not void on the ground that it is more extensive than was authorized by the power; but an estate or interest so created, so far as embraced by the terms of the power, is valid.49%1⁄2 Section 157 was formerly 1 Revised Statutes, 737, section 123: § 123. No disposition, by virtue of a power, shall be void in law or in equity, on the ground that it is more extensive than was authorized by the power; but every estate or interest so created, so far as embraced by the terms of the power, shall be valid.50 Cy Pres Doctrine and Excessive Execution. The doctrine of cy pres, or approximate execution, and the equitable doctrines relative to the excessive execution of powers, where the grantee of the power has exceeded his authority, are closely allied. Indeed, the doctrine of cy pres, by the adjudged cases applying it, extended to excessive execution of powers of appointment. Under that doctrine certain appointed estates unauthorized were regarded as estates tail.51 The doctrines relative to excessive execution of powers separated the good from the bad parts of the execution if possible, and upheld the execution pro tanto.52 They were applied where the estate granted by the donce of the power could not be turned into an estate tail under the doctrine of cy pres.53 Estates tail no longer exist in this State, and the doctrine of cy pres has no longer any strict application to powers, except they are appointments to charity.54 But the equitable doctrines relative to excessive execution are only confirmed by this section of this act, and such are closely allied to the cy pres doctrine, in its larger sense. Whenever the provision in excess of 55 49% Repealed by Real Prop. Law of 1909, $460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 50 Repealed, chap. 547, Laws of 1896. 51 All the cases cited by Sugden and Chance are of this nature. 2 Sugd. Pow. 57; 2 Chance, Pow. 58 seq.; Tudor, Lead. Cas. Real Prop. (3d ed.) 409. 52 Farw. Pow. (1st ed.) 250; 2 Sugd. Pow. 62 seq.; 2 Chance, Pow. 45 seq.; and see remarks, supra, under $172, Real Prop. Law. 53 Supra, pp. 545. 547. 54 Hillen v. Iselin, 144 N. Y. 365, 374: 113 supra. 55 Root v. Stuyvesant, 18 Wend. at pp. 274, 288; Hillen v. Iselin, 144 N. Y. 365, 380. the power may be eliminated without disturbing the scheme, the excessive execution stands under this section.56 And such was the rule at common law before the Revised Statutes.57 This sec This Section Applies to Excessive not Deficient Executions. tion applies to excessive and not to deficient executions of powers.58 Where a power is not well and sufficiently executed, because the grantee of the power has partially executed, or has not exhausted, his authority, the execution was formerly good pro tanto,59 and it might be aided in equity in a proper case. This principle is now stated in the statute, in respect of powers in trust, which embrace many former powers,60 and as the general equitable jurisdiction of the Supreme Court remains co-extensive with that of the Court of Chancery, a defective execution of other powers will, no doubt, be remedied in a proper case.61 Execution of Power of Appointment by Void Will. Because a will executing a power of appointment is void, it does not operate to annul or revoke a former valid execution of such power.62 Power of Revocation. A deed executed by a person, having a power of revocation and appointment, before the date specified by the grantor of the power, operates as an estoppel against the grantee of the power.63 56 Hillen v. Iselin, 144 N. Y. at p. 380; Monjo v. Woodhouse, 185 id. 295, 300. 57 2 Chance, Pow. 511, § 2891. 58 Austin v. Oakes, 48 Hun, 492, 496; s. c., 117 N. Y. 577. 592 Chance, Pow. 511; Tudor, Lead. Cas. Real Prop. 422. 60 163, Real Prop. Law. 61 Monjo v. Woodhouse, 185 N. Y. 295, 300. 62 Matter of Pilsbury, 50 Misc. Rep. 367. 63 § 267, Real Prop. Law. |