Special and beneficial powers fiable to creditors. Future beneficial powers. Trust pow. ers imperative. Effect of right of selection. 1. That the mortgagee is entitled to an execution of the power, so far as the satisfaction of his lien may require it; and, 2. That any subsequent estate created by the owner, in execution of the power, becomes subject to the mortgage in the same manner as if in terms embraced therein. 1 R. S., 733, § 91. $353. Every special and beneficial power is liable to the claims of creditors, in the same manner as other interests that cannot be reached by execution, and the execution of the power may be adjudged for the benefit of the creditors entitled. Ib., § 93. $354. No beneficial power, general or special, not already specified and defined in this Title, can hereafter be created. Ib., § 92. It has been thought that the omission of this section $355. Every trust power, unless its execution is made expressly to depend on the will of the trustee,' is imperative, and imposes a duty on the trustee, the performance of which may be compelled for the benefit of the parties interested. 1 R. S., 734, § 96. 'Arnold v. Gilbert, 5 Barb., 195, 198. S356. A trust power does not cease to be imperative, where the trustee has the right to select any, and exclude others, of the persons designated as the beneficiaries of the trust. Ib., § 97. Hoey v. Kenny, 25 Barb., 396. persons, tion of certain powers $357. Where a disposition under a power is directed Construc to be made to, among, or between several without any specification of the share or sum to be allotted to each, all the persons designated are entitled in equal proportion. Ib., § 98. $358. Where the terms of a power import that the ra estate or fund is to be distributed among several persons designated, in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons in exclusion of the others. Ib., § 99. $359. If the trustee of a power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as objects of the trust. Ib., § 100. Hoey v. Kenny, 25 Barb., 396. When court to execute power. $360. Where a power in trust is created by will, a and the testator has omitted to designate, expressly or by necessary implication, by whom the power is to be executed, its execution devolves on the supreme court. Ib., § 101. The words "expressly or by necessary implication" are of trust power, when com $361. The execution, in whole or in part, of any Execution trust power, may be adjudged for the benefit of the creditors or assignees of any person entitled, as one of the beneficiaries of the trust, to compel its execution, when his interest is transferable. 1 R. S., 735, § 103. pelled by creditors, &c. Defective execution. Application of certain sections. S362. Where the execution of a power in trust is defective, in whole or in part, under the provisions of this Title, its proper execution may be adjudged in favor of the persons designated as the objects of the trust. 1 R. S., 737, § 131. S363. The provisions of the Title on TRUST, saving the rights of other persons from prejudice by the misconduct of trustees, and authorizing the court to remove and appoint trustees; the provisions of the Title on SUCCESSION, devolving express trusts upon the court,' on the death of the trustee; and the provisions of section 299, in the Title on USES AND TRUSTS, apply equally to powers in trust, and the trustees of such powers. 1 R. S., 734, § 102. Hoey v. Kenny, 25 Barb., 396. Hutchings v. Baldwin, 7 Bosw., 236, 241. PART III. PERSONAL OR MOVABLE PROPERTY. TITLE I. Personal Property in General. TITLE I. PERSONAL PROPERTY IN GENERAL. SECTION 364. By what law governed. 365. Future interests in perishable property, how protected. $364. If there is no law to the contrary in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. S365. Where one has the present and another the future interest in a thing personal, and the thing is perishable, the latter may require it to be sold, and the proceeds invested, for the benefit of both parties, according to their respective interests; except in case of a thing specially appropriated to a particular use. This provision is new. By what law gov erned. Future perishable interests in property, how pro tected. TITLE II. PARTICULAR KINDS OF PERSONAL PROPERTY. CHAPTER I. Things in action. II. Shipping. III. Corporations. IV. Products of the mind. V. Other kinds of personal property. Things in action defined. Transfer and survivorship. CHAPTER I. THINGS IN ACTION. SECTION 366. Things in action defined. 367. Transfer and survivorship. S366. A thing in action is a right to recover something by a judicial proceeding. S367. A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. Upon the death of the owner it passes to his personal representatives, except where, in the cases provided in the CODE OF CIVIL PROCEDURE, it passes to his devisees or successor in office. This section is proposed to establish one rule for the assignability and the survivorship of things in action. Though the cases on this subject are conflicting, this view is generally received (See McKee v. Judd, 12 N. Y., 622; Meech v. Stoner, 19 id., 26). |