§ 178. Computation of term of suspension. The period during which the absolute right of alienation may be suspended, by an instrument in execution of a power, must be computed, not from the date of such instrument, but from the time of the creation of the power. Formerly section 158, Real Property Law of 1896, chapter XLVI, General Laws: § 158. Computation of term of suspension. The period during which the absolute right of alienation may be suspended, by an instrument in execution of a power must be computed, not from the date of such instrument, but from the time of the creation of the power.64 Section 158 was formerly 1 Revised Statutes, 737, section 128: § 128. The period during which the absolute right of alienation may be suspended, by any instrument in execution of a power, shall be computed, not from the date of such instrument, but from the time of the creation of the power.65 This Section Relates to the Rule against Perpetuities. This section and the one following it 66 have a distinct relation to the "rule against perpetuities," or that rule now more commonly called "the rule against unlawful suspension of the power of alienation." 67 68 Powers of Appointment. After the Duke of Marlborough's case powers of appointment, whereby executory limitations arose, were regarded as within the common-law rule against a perpetuity; and consequently no limitation could be effected by a power of appointment, if it could not have been effected by the original instrument creating the power.69 For the purpose of this rule, the date of the operation of the original instrument, and not that executing the power, determined the time when the rule began to run.70 This rule did not, at common law, apply to general powers.71 The doctrine of relation, whereby an instrument in execution of a power related back to the inception of the original instrument creating the power, was fictio juris, and not upheld to advance a 4 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. C5 Repealed, chap. 547, Laws of 1896. 66 Real Prop. Law, § 179. 67 Real Prop. Law, § 42. 68 Sugden's Gilbert on Uses, p. 160, note. 69 Challis, 156; 1 Chance, Pow.. 115, 439; 2 id. 1. 70 Challis, 156. wrong.72 This doctrine always applied, however,73 and applies still, under this section, for the purposes of the rule against perpetuities.74 Title of Appointee. It is true that the title of an appointee may not vest until the time of appointment, yet in law it relates back and is acquired under the instrument creating the power.75 But it seems that for the purposes of the Transfer Tax Law it may be regarded as acquired under the instrument executing the power.76 72 Jackson v. Davenport, 20 Johns. 537, 546; Matter of Stewart, 131 N. Y. 274, 281. 73 Henry v. Davis, 7 Johns. Ch. 40. 74 Fargo v. Squiers, 154 N. Y. 250; Hillen v. Iselin, 144 id. 365, 378; Dana v. Murray, 122 id. 604; Genet v. Hunt, 113 id. 158; Crooke v. County of Kings, 97 id. 421, 445; Beardsley v. Hotchkiss, 96 id. 201, 214; Conkling v. N. Y. El. R. R. Co., 76 Hun, 420; Matter of Harbeck, 161 N. Y. 211, revg. 43 App. Div. 188, 191; cf. Frear v. Pugsley, 9 Misc. Rep. 316, 322, which case said to be erroneous; Chapl. Ex. Trusts & Pow., § 679; Hayden v. Sugden, 48 Misc. Rep. 108; Matter of Pilsbury, 50 id. 367; Farmers' Loan & Trust Co. v. Kip, 52 id. 407, 120 App. Div. 347, 192 N. Y. 266; Chanler v. Kelsey, 205 U. S. 466. 75 Matter of Stewart, 131 N. Y. 274; Matter of Harbeck, 161 id. 211, revg. 43 App. Div. 188. 76 Matter of Cooksey, 182 N. Y. 92. § 179. Capacity to take under a power. An estate or interest can not be given or limited to any person, by an instrument in execution of a power, unless it would have been valid, if given or limited at the time of the creation of the power. Formerly section 159, Real Property Law of 1896, chapter XLVI, General Laws: $159. Capacity to take under a power.- An estate or interest cannot be given or limited to any person, by an instrument in execution of a power, unless it would have been valid, if given or limited at the time of the creation of the power.77 Section 159 was formerly 1 Revised Statutes, 737, section 129: § 129. No estate or interest can be given or limited to any person, by an instrument in execution of a power, which such person would not have been capable of taking, under the instrument by which the power was granted.78 Construction of Section 179. Section 17879 is the complement of this section, and in logical order this section, 179, should have preceded section 178, for it is this section which subjects all estates created by powers to the rules regulating the creation of legal estates by principals; 80 whereas section 178 states only a subordinate principle concerning the computation of time under the rule against perpetuities. Rule against Perpetuities. The application of the rule against perpetuities, of estates created under powers, is provided for by three separate sections of this act.81 Section 131 prohibits a grantor from empowering an act which he himself could not do. Section. 144 prohibits the reservation of any act which may not be lawfully delegated, while this section acts obliquely on the grantee and prevents any estate from passing under a power, unless such estate would have been valid in the instrument creating the power.82 The Revised Statutes. Under the Revised Statutes, as before thos statutes, it was a general principle that a power could not be the 77 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 78 Repealed, chap. 547, Laws of 1896. 79 Supra, Real Prop. Law. 80 Art. 3, Real Prop. Law; Demp sey v. Tylee, 3 Duer, 73, 101. 81 §§ 131, 154, 179. 82 Dempsey v. Tylee, 3 Duer, 73, 101; Murray v. Miller, 178 N. Y. 316, 324. 831 Sugd. Pow. 178; supra, p. 685. medium of a perpetuity any more than a direct limitation.84 But what powers tend to a perpetuity, and what do not, are now, as at common law, the questions for professional consideration; for not all limitations of powers, and not all powers, tend to infringe the rule against perpetuities. Powers of Appointment. It must be conceded that all powers of appointment, whereby executory limitations are to arise as future estates, are within the rule against perpetuities 85 now as formerly.86 Whenever the power limits a new use, the power tends to a perpetuity. So those powers in trust, which necessarily suspend the power of alienation, are within the rule.87 But not all powers in trust are within the rule; for a power of sale, for example, cannot be said, per se, to suspend the power of alienation,88 unless the proceeds of such sale are to be held on further trusts,89 execution of the power of sale is unduly postponed in the limitatation of the power. 90 or the Power of Revocation. A power of revocation may be good as against the donee of the power, although executed contrary to the grant of the power.91 84 Salmon v. Stuyvesant, 16 Wend. 321; Root v. Stuyvesant, 18 id. 257, 264, 265; Belmont v. O'Brien, 12 N. Y. 394, 403; Everitt v. Everitt, 20 id. 39, 78; Read v. Williams, 125 id. 560, 569; Booth v. Baptist Church, 126 id. 215, 239; Sweeney v. Warren, 127 id. 426, 433; Tilden v. Green, 130 id. 29, 54; and see supra, § 179, Real Prop. Law. 85 Salmon v. Stuyvesant, 16 Wend. 321; Root v. Stuyvesant, 18 id. 257, 265; Booth v. Baptist Church, 126 N. Y. 215, 240; Hillen v. Iselin, 144 id. 365, 378; Farmers' Loan & Trust Co. v. Kip, 120 App. Div. 347, 192 N. Y. 266. 861 Sugd. Pow. 178. 87 A trust or power in trust suspends the power of alienation, only when the trust purpose prevents an alienation by the trustee. This prevention is by virtue of 1 R. S. 731, 44 865; 105, Real Prop. Law. Russell v. Russell, 36 N. Y. 581, 584; Beardsley v. Hotchkiss, 96 id. 201, 214; Hillen v. Iselin, 144 id. at p. 379, et supra, p. 593, under § 137, Real Prop. Law. 88 Garvey v. McDevitt, 72 N. Y. 556, 563; Roberts v. Corning, 89 id. 225, 239; Henderson v. Henderson, 113 id. 1, 10; Cussack v. Tweedy, 126 id. 81, 87; Deegan v. Wade, 144 id. 573; Blanchard v. Blanchard, 4 Hun, 289. 89 Savage v. Burnham, 17 N. Y. at p. 572; Allen v. Allen, 149 id. 280; Underwood v. Curtis, 127 id. 523. 90 Hobson v. Hale, 95 N. Y. 588, 609; Dana v. Murray, 122 id. 604, 614; Matter of Will of Butterfield, 133 id. 473; Trowbridge v. Metcalf, 5 App. Div. 318. 91 § 267, Real Prop. Law. § 180. Purchaser under defective execution. A purchaser for a valuable consideration, claiming under a defective execution of a power, is entitled to the same relief as a similar purchaser, claiming under a defective conveyance from an actual owner. Formerly section 160, Real Property Law of 1896, chapter XLVI, General Laws: § 160. Purchase under defective execution. A purchaser for a valuable consideration, claiming under a defective execution of a power, is entitled to the same relief as a similar purchaser, claiming under a defective conveyance from an actual owner.92 Section 160 was formerly Revised Statutes, 737, section 132: § 132. Purchasers for a valuable consideration, claiming under a defective execution of any power, shall be entitled to the same relief in equity, as similar purchasers, claiming under a defective conveyance from an actual owner.93 Comment. Under section 163 of this act,94 a reference was made to the former rules touching defective execution of powers. This section, now under consideration, refers specifically to judicial aid to purchasers in cases of defective execution of powers. Before the Revised Statutes relief against defective executions was frequently granted in equity in favor of purchasers.95 And for this purpose a wife, under marriage articles,96 a mortgagee 97 and a lessee 98 were regarded as purchasers. Equity would relieve in case of the want of a seal or of witnesses,99 or in case of a defect in the description of the property appointed. Since the Revised Statutes, in a proper case, equity must aid a defective execution in favor of a purchaser.1 But the remedy cannot be invoked in all cases by purchasers under defective executions of powers. For example, in an action for specific performance, it was held that purchasers were not entitled to relief in such a case.2 |
