Term "Purchaser " Includes Mortgagee and Lessee. Before the Revised Statutes, equity, as stated above, included in the term "purchasers" under this rule, both mortgagees and lessees.3 Certainly those persons are still within the equity of the present section and will be entitled to relief whenever their title is imperfect by reason of a defective execution of a power.

3 Cf. 2 Sugd. Pow. 93, citing several cases.

4 And see § 267, Real Prop. Law.

§ 181. Instrument affected by fraud. An instrument in execution of a power is affected by fraud, in the same manner as a conveyance or will, executed by an owner or by a

trustee.

Formerly section 161, Real Property Law of 1896, chapter XLVI, General Laws:

§ 161. Instrument affected by fraud.— An instrument in execution of a power is affected by fraud, in the same manner as a conveyance or will, executed by an owner or by a trustee.5

Section 161 was formerly 1 Revised Statutes, 737, section 125:

$ 125. Instruments in execution of a power are affected by fraud, both in law and equity, in the same manner as conveyances by owners or trustees.6

Construction of Section. This section is equivalent to a clause saving existing jurisdictions; for, at the time of the enactment of the original section, a deed or will in execution of a power was affected by fraud in the same manner as a deed or will not in execution of a power. The fraud referred to in this section may be the fraud of a third person, not the grantee of the power, or it may be the fraud of the grantee of a power in trust.

Formerly there were some cases involving fraudulent executions of powers which equity alone could reach; the power, in such cases, was executed according to the terms of it, but there was some unlawful bargain behind it, or some ill motive which rendered the execution fraudulent.10 In all such cases equity afforded appropriate relief. At the present day the like jurisdiction is vested in the courts of general powers. The jurisdiction over cases involving fraudulent execution of powers remains as extensive as ever; the tribunal administering it and the form of redress have alone changed.

5 Repealed by Real Prop.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

1896.

Repealed, chap. 547, Laws of

72 Sugd. Pow. 181; 2 Chance, Pow. 549, 552; Harty v. Doyle, 49 Hun, 410, 413.

8 Scroggs v. Scroggs, Ambl. 272; Harty v. Doyle, 49 Hun, 410.

9 Matter of Vandevort, 8 App. Div. 341; Post v. Benchley, 48 Hun, 83, 90.

10 2 Sugd. Pow. 181; Aleyn v. Belchier, I Eden, 132; s. c., I White & Tudor, Lead. Cas. in Eq. 437.

The legislature has no power to abridge the jurisdiction of a court established by the Constitution.11 At the time the Revised Statutes took effect the jurisdiction of the Court of Chancery over fraud was established, and this section being declaratory neither enlarged it nor detracted from it.

11 Alexander v. Bennett, 60 N. Y. 204; see pp. 672, 674.

§ 182. Sections applicable to trust powers. Sections one hundred and eleven to one hundred and thirteen of this chapter, both inclusive, in relation to express trust estates, and the trustee thereof, apply equally to trust powers, however created, and to the grantees of such powers.

Formerly section 162, Real Property Law of 1896, chapter XLVI, General Laws:

§ 162. Sections applicable to trust powers.- Sections ninety-one to ninetythree of this chapter, both inclusive, in relation to express trust estates, and the trustee thereof, apply equally to trust powers, however created, and to the grantees of such powers.12

Section 162 was formerly 1 Revised Statutes, 734, section 102:

§ 102. The provisions contained in the second Article of this Title, from section sixty-six to section seventy-one, both inclusive, in relation to express trusts and trustees, shall apply equally to powers in trust, and the grantees of such powers.13

Construction of Section. The prior sections which are by this section made applicable to powers in trust relate, (1) to the devolution of a trust on the death of a last surviving trustee; 14 (2) to the resignation or removal of a trustee; 15 (3) to charitable, religious, educational and benevolent uses.16

Death of Trustee of a Power. It is thus apparent, that on the death of the last surviving or sole trustee of a power in trust the trust, if unexecuted, vests in the Supreme Court and will be executed by its direction,17 unless the trust is purely personal.18

Resignation of Trustee of a Power. So the trustee of a power in trust may resign, or be removed, and a new trustee appointed in his place. 19

12 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 13 Repealed, chap. 547, Laws of 1896.

148 111, Real Prop. Law. 15112, Real Prop. Law. 16 8 113, Real Prop. Law.

17 Crocheron v. Jaques, 3 Edw. Ch. 207; Clark v. Crego, 51 N. Y. 646; Delaney v. McCormack, 88 id. 174, 182; Cooke v. Platt, 98 id. 35, 39;

Train v. Davis, 49 Misc. Rep. 162, 170; see notes 15 and 21, Appendix I, infra.

18 See p. 582, under § 131, Real Prop. Law, "delegatus non potest delegare," and Chapl. Ex. Trusts & Pow., 8 604, 726.

19 § 112, Real Prop. Law; Farrar v. McCue, 89 N. Y. 139, 144; Cooke v. Platt, 98 id. 35, 39; Oliver v. Frisbie, 3 Dem. 22; Fleet v. Simmons, id. 542.

When Power of Sale Passes to Administrators with the Will Annexed. If a power of sale is discretionary it cannot pass to an administrator with the will annexed.20 Otherwise if it is peremptory and imperative involving no discretion.21

Section 113 of

Charitable, Religious, Educational and Benevolent Uses. this act relating to charitable, religious, educational and benevolent uses, and declaring conveyances and devises to such uses not invalid for uncertainty of the beneficiaries, is now expressly applicable to trusts operative as powers in trust.22 Prior to the enactment of the Real Property Law of 1896, chapter 701, Laws of 1893, had introduced this change in the law of New York, and as most charitable trusts were operative only as powers in trust prior to 1893,23 the act of 1893 necessarily applied to such powers in trust; and quite independently of this section.24 This section, therefore, in so far as it concerns charities, is only declaratory of a change originally introduced by the law of 1893 and now made permanent by section 113 of this act.

If no Trustee of a Charitable Power in Trust Named. So where a charitable use was operative as a power in trust and no trustee was named, the execution of the trust vested in the Supreme Court as declared in chapter 701, Laws of 1893, and as now stated in this section of this act.25 In this respect both the act of 1893 and this section are declaratory of the pre-existing law.

Omitted Sections. At present there are no sections of this act between section 182 and section 190.

20 Greenland v. Waddell, 116 N. Y. 234, 240; supra, p. 538.

21 Mott v. Ackerman, 92 N. Y. 539, 553, 554; Clifford v. Morrell, 22 App. Div. 470; Carpenter v. Bonner, 26 id. 462; Merritt v. Merritt, 32 id. 442, 448; Scott v. Douglass, 39 Misc. Rep. 555; supra, at pp. 470, 483, 538, 694.

22 Supra, § 182, Real Prop. Law.

23 Downing v. Marshall, 23 N. Y. 366, 380; Adams v. Perry, 43 id. 487; Cottman v. Grace, 112 id. 299, 306, 307; Erwin v. Hurd, 13 Abb. N. C. 91.

24 Kelley v. Hoey, 35 App. Div. 273.

25 § 182, Real Prop. Law.