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literary institution, or by the corporation of any city or village, or by the commissioners of common schools of any town, or by the trustees of any school district, under any grant, conveyance, devise or bequest, for any of the purposes for which trusts are authorized under the “Act authorizing certain trusts,” passed May fourteenth, one thousand eight hundred and forty, and the act in addition to the act authorizing certain trusts, passed May twenty-sixth, eighteen hundred and forty-one, shall subsequently become diminished from any cause; such diminution

may be made up by the accumulation of the interest or income of the principal of such trust fund, in accordance with the direction (if any) contained in the grant, conveyance, devise or bequest of such trust fund; and if no directions for that purpose are contained in such grant, conveyance, devise or bequest, then such

diminution may be made up in whole or in part by such accumulation, in the discretion of the trustees of such trust fund; but in no case shall such accumulation be allowed to increase the trust fund, beyond the true amount or value thereof, actually received by the trustees, to be estimated after the deduction of all liens and incumbrances on such trust fund, and of all expenses incurred or paid by the trustees in the collection or obtaining the possession of the same.

L. 1879, Chap. 203-An act to authorize historical societies in this state

to hold real estate for preservation and monumental purposes and to receive historical articles in trust.

Real estate for monumental purposes ; historic articles. SECTION 1. Any historical society in this state is hereby authorized to have and hold for the purposes of inclosure, preservation and the erection of monuments, but under no circumstances for the purposes of business, the sites of old forts and battles, not to exceed six acres in one locality, and when such sites have been so appropriated and improved, and used for such purposes only, they shall be exempt from taxation; and to receive donations of articles of historic interest on the condition that it shall not dispose of the same, except with the consent of the donor, and that in case of its dissolution or inability to pay its debts otherwise than from its effects, the said articles shall revert to the donors or their heirs. But nothing herein contained shall be construed as authorizing the charging of any fee for the exhibition of such inclosure or structure by such historical society or their agents.

L. 1882, Chap. 185 – An act in relation to trustees of personal estates.

Trust estate not to descend, but vest in supreme court. SECTION 1. Upon the death of a surviving trustee of an express trust, the trust estate shall not descend to his next of kin or personal representatives, but the trust, if unexecuted, shall vest in the supreme court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court. But no person shall be appointed to execute said trust until the beneficiary thereof shall have been brought into court by such notice and in such manner as the court

may direct. 3 Dem, 563; 99 N. Y., 114.

ART. 8.

ARTICLE THIRD.

OF POWERS.

Sec. 73. Powers as they now exist abolished ; future powers to be governed by this

article. 74. Definition of a power. 75. Who capable of granting powers. 76. Division of powers, general or special, and beneficial or in trust. 77 & 78. Definitions of general and special powers.

ART. 3.

Sec. 79. When a general or special power is beneficial.

80. Married women may execute general and beneficial powers.
81. Absolute power of disposition in tenant for life, etc., creates a fee, etc.
82. Like power to any other, creates absolute fee as to creditors, etc.
83. When grantee of such power entitled to absolute fee.
84. Power to devise inheritance to be deemed absolute power in certain cases.
85. Power to dispose of fee in certain cases, absolute power of disposition.
86. Effect of reserving power of revocation.
87. To whom special and beneficial powers may be granted.
88. Power of tenant for life to make leases, not assignable, etc.
89. To whom it may be released.
90 & 91. Effect of mortgages by persons having power to make leases.
92. Future beneficial powers not herein enumerated, invalid.
93. Liability of beneficial powers in equity, to creditors.
94. When general powers are in trust.
95. When special powers are in trust.
96. Trust powers imperative, unless expressly made optional.
97. Effect of a right of selection by grantee of power.
98 & 99. Powers to distribute among several persons, how to be construed.
100. Chancery to execute power on death of trustee having right of selection.
101. Also where person to execute power is not designated.
102. Certain prior sections to apply to power in trust.
103. Creditors, etc., of objects of trust, when to compel execution of powers.
104. Effect of assignments under insolvent acts, etc., upon beneficial powers.
105. Powers that may be reserved by grantors in conveyances.
106, By what instruments powers may be granted.
107. When powers to be recorded.
108. Powers irrevocable unless authority is expressly reserved.
109. In whom powers may be vested; by whom exercised.
110. Married women, when and how to execute powers.
111. Married women not to execute power until of age.
112. Powers to be executed by all surviving grantors thereof.
113. By what instruments powers to be executed.
114. Such instruments to be deemed conveyances.
115. Power to dispose by devise, how executed.
116. Power to dispose by grant, cannot be executed by will.
117. Executions by married women, to be acknowledged.
118. Execution governed by preceding rules, although otherwise directed by

grantor.
119. Useless formalities directed, dispensed with.
120. Nominal conditions may be disregarded.
121. In other respects, directions of grantor to be observed.
122. Consent of third persons to execution of power, how evidenced.
123. Dispositions not void on account of being too extensive.
124. Instruments executing power valid, although power not recited.
125. Such instruments affected by fraud.
126. General terms in a will sufficient to execute power to devise.
127. Estates given to descendants by virtue of certain powers, to be advance-

ments. 128. How term during which alienation may be suspended, to be computed. 129. Who capable of taking in execution of power. 130. Authority of married women, under powers. 131. Defective executions of powers, corrected in equity. 132. Relief to purchasers under defective executions. 133. Powers to sell in mortgages, to pass to assignees thereof. 134. This article not to extend to simple powers of attorney, etc. 135. Definition of the terms "grantor of a power" and "grantee of a power.”

(782)

Future powers.

$ 73. Powers, as they now exist by law, are abolished; and from Powers as the time this chapter shall be in force, the creation, construction and they now

. execution of powers, shall be governed by the provisions of this ished. article.

12 N. Y., 534 ; 29 N. Y., 39, 78; 8 Bosw., 192 ; 73 N. Y., 280 ; 28 Hun, 64, 214, 603 ; 82 Hun, 485; 86 N. Y., 522 ; 88 N.

Y., 174 ; 92 N. Y., 199, 295, 304, 627. § 74. A power is an authority to do some act in relation to lands, Definition

of a power. or the creation of estates therein, or of charges thereon, which the 36 N. Y.

234 ;

7

74.

powers.

powers.

45

powers.

powers.

35

558.

TITLE 2. owner granting or reserving such power, might himself lawfully 89.; 4 Lans., perform

Bosw., 241 ; 8 Bosw., 192, 481 ; 4 Hun, 200 ; 46 N. Y., 16 ; 12 N. Y., 404 ; 5 N. Y., 413; 1 Barb., 62 3 Duer, 73; 36 Barb., 44; 42 N. Y., 534 ; 65 Barb., 508; 6 T. & C., 551 ; 70 N. Y., 615 6 Hun, 31; 66 Barb , 443 ; 64 N. Y., 506; 73 N. Y., 230 ; 28 Hun, 64, 603; 85 Hun, 293 ; 88 N.Y., 174 ; 97 N. Y., 558; 92 N. Y., 627. Who may grant

$ 75. No person is capable in law of granting a power, who is not Popuer, 95; at the same time, capable of aliening some interest in the lands to 8 Bosw., which the power relates. 192; 4 Hun,

$ 76. Powers, as authorised in this article, are general or special, Division of and beneficial or in trust. 20 Barb., 238; 8 Bosw., 193. Definition $77. A power is general, where it authorises the alienation in fee, of general

by means of a conveyance, will or charge of the lands embraced in 49 Barb.,

the power, to any alienee whatever. 54; 4 Lans., 235;

How. Pr. R., 166 ; 8 Bosw., 193 ; 69 N. Y.,1; 21 Barb., 52; 1 Barb., 62 ; 41 Barb., 69; 42 N. Y., 534 ; 36 N. Y., 581, 583; 28 Hun, 64, 603 ; 42 Hun, 57 ; 35 Hun, 293 ; 36 Hun, 170 : 88' N. Y., 174 ; 97 N. Y., 421, 418. Definition $ 78. A power is special, of special

1. Where the persons or class of persons, to whom the disposi11 N. Y., tion of the lands under the power is to be made, are designated, 402; 41 Barb., 69; 2. Where the power authorises the alienation, by means of a con8 Bosw., 193; 36 veyance, will or charge of a particular estate or interest less than a Hun, 170.

fee. Beneficial $ 79. A general or special power is beneficial, when no person 45 How.Pr. other than the grantee has, by the terms of its creation, any interest Barb., 288; in its execution. 22 Wend., 498 ; 4? N. Y., 534 ; 36 N. Y., 581; 49 Barb., 54 ; 67 N. Y., 63; 73 N. Y., 230; 20 Hun, 360;

Hun, 293 ; 97 N. Y., Powers to $ 80. A general and beneficial power may be given to a married married women.

woman, to dispose, during her marriage, and without the concurrence 15 N. Y. 313; 12 N.

of her husband, of lands conveyed or devised to her in fee. Y., 423; 7 Paige, 399 ; 22 Wend , 499 ; 1 Barb. Ch., 13, 240; 56 Barb., 606.

§ 81. Where an absolute power of disposition, not accompanied life, &c.,

by any trust, shall be given to the owner of a particular estate, for when

life or years, such estate shall be changed into a fee, absolute in rechanged into a fee. spect to the rights of creditors and purchasers, but subject to any

. 193; 2 future estates limited thereon, in case the power should not be exe45 How.Pr. cuted, or the lands should not be sold for the satisfaction of debts. R., 166; 47 N.Y., 518 ; 2 Abb. Ct. App. Dec., 478 ; 67 N. Y., 63; 17 Abb. N. C., 340 ; 4 Dem., 240 ; 37 Hun, 478 ; 97 N. Y., 43,3, 533 ; 100 N. Y., 312. Certain § 82. Where a like power of disposition shall be given to any powers

person to whom no particular estate is limited, such person shall fee, &c. also take a fee, subject to any future estates that may be limited 6 T. & C., 555; 42 N. thereon, but absolute in respect to creditors and purchasers. Y., 534 ; 2 Abb. Ct. App. Dec., 178; 4 Hun, 290 ; 2 Lans., 276 ; 97 N. Y., 433, 450 ; 100 N. Y., [733]

$ 83. In all cases where such power of disposition is given, and 2 X. Y.,

no remainder is limited on the estate of the grantee of the power, Barb., 55; 2

such grantee shall be entitled to an absolute fee. Lans., 276 ; 2 Abb. Ct. App. Dec., 178; 69 N. Y., 1. Effect of

§ 84. Where a general and beneficial power, to devise the inheridevise in. tance, shall be given to a tenant for life or for years, such tenant in certain shall be deemed to possess an absolute power of disposition, within 49 Barb.,

the meaning and subject to the provisions of the three last preced55; 2 Lans, ing sections.

; 2 Ct. App. Dec., 178 ; 20 Hun, 360 ; 37 Hun, 478.

Estate of tenant for

create a

312.

Id.

534; 49

power to

cases.

fee.

take.

307; 18

If tenant for

life.

er.

§ 85. Every power of disposition shall be deemed absolute by ART. 3.

Power to means of which the grantee is enabled, in his life time, to dispose of

dispose of the entire fee, for his own benefit.

7 Paige,386, 399; 6 N. Y. S. C. R. (T. & C.), 555; 69 N. Y., 1; 17 Abb. N. C., 310; 4 Dem., 240; 97 N. Y., 433, 449, 558. § 86. Where the grantor in any conveyance shall reserve to him- Power to

revoke. self, for his own benefit, an absolute power of revocation, such grantor shall still be deemed the absolute owner of the estate conveyed so far as the rights of creditors and purchasers are concerned. § 87. A special and beneficial power may be granted,

Special 1. To a married woman, to dispose, during the marriage, and with- and benefiout the concurrence of her husband, of any estate less than a fee, ers, who belonging to her, in the lands to which the power relates :

15 Ñ. Y., 2. To a tenant for life of the lands embraced in the power, to make Wend... 270;

20 Hun, 360. leases for not more than twenty-one years, and to commence in possession during his life.

988. The power of a tenant for life to make leases, is not assign- Power to able as a separate interest, but is annexed to his estate, and will pass, leases by (unless specially excepted) by any conveyance of such estate. specially excepted in any such conveyance, it is extinguished.

§ 89. Such power may be released by the tenant to any person Release of entitled to an expectant estate in the lands, and shall thereupon

such powo

be extinguished.

§ 90. A mortgage executed by a tenant for life having a power to Mortgages make leases, or by a married woman, by virtue of any beneficial ha party power, does not extinguish or suspend the power; but the power is power to bound by the mortgage, in the same manner as the lands embraced 56 Barb., therein,

§ 91. The effects of such a lien by mortgage on the power, are, Efect

1. That the mortgagee* is entitled, in equity, to an execution of be Barb., the power, so far as the satisfaction of his debt may require:

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.

$ 92. No beneficial power, general or special, hereafter to be Future created, other than such as are already enumerated and defined in powers:

18 Wend., this article, shall be valid. $ 93. Every special and beneficial power is liable, in equity, to the

1734) claims of creditors, in the same manner as other interests that can

Beneficial not be reached by an execution at law and the execution of the ble to credpower may be decreed for the benefit of the creditors entitled. 56 Barb.,

605; 7 94. A general power is in trust, when any person or class of Robt., 109. persons, other than the grantee of such power, is designated as en, powers titled to the proceeds, or any portion of the proceeds, or other trust. benefits to result from the alienation of the lands, according to the 241; 69 N. power.

Y., 1; 4

Lans , 235; 5 Barbour, 198, 652; 1 Barb., 62; 3 Edw., 212; 3 Sandf. S. C., 555; 50 N. Y., 431; 42 N. Y., 535, 36

N. Y, 584, 583; 28 Hun, 64, 603; 86 Hun, 170; 88 N. Y., 174; 97 N. Y., 421; 92 N. Y., 627. $ 95. A special power is in trust,

Special I. When the disposition which it authorises, is limited to be made powers to any person or class of persons, other than the grantee of such trust, power.

605.

605.

beneficial

270; 16

powers liaTITLE 2.

652; 3 Edw.,

212; 3 *In the first edition of the Revised Statutes, this word is printed “mortgage." original, on file in the office of the secretary of state.

5 Barb.,

Not so in the Sandf. S.

Trust pow

tive.

12 N. Y.,

powers

When

power.

2. When any person or class of persons, other than the grantee, C., 529; 1 is designated as entitled to any benefit from the disposition or charge 35 N.Y., 89; authorized by the power. [Thus amended by L. 1830, ch. 320, 29 Hun, 603. § 11.]

§ 96. Every trust power, unless its execution or non-execution ers impera

is made expressly to depend on the will of the grantee, is imPr.A.n. perative, and imposes a duty on the grantee, the performance of S , 15; 6

which may be compelled in equity, for the benefit of the parties Hun, 534;

interested. 403; 3 N. Y., 280; 5 Barb., 198; 8 Paige, 120; 3 Edw., 212; 1 Barb., 58; 36 Barb., 44; 50 N. Y., 436; 65 Barb., 250; 4 Lans.,238; 37 Hun, 22; 88 N. Y., 174; 92 Ñ. Y., 539, 551; 97 N. Y., 558. Effect of $97. A trust power does not cease to be imperative, where the right of selection. grantee has the right to select any, and exclude others of the per

sons designated as the objects of the trust. Construc- $ 98. Where a disposition under a power is directed to be made tion of certain to or among or between several persons, without any specification i Barb., 69. of the share or sum to be allotted to each, all the persons designated

shall be entitled to an equal proportion. Id.

$ 99. But when the terms of the power import that the estate or fund is to be distributed between the persons so 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 other.

§ 100. If the trustee of a power, with the right of selection, shall chancery to execute die, leaving the power unexecuted, its execution shall be decreed in 25 Barb.,

equity for the benefit equally of all the persons designated, as objects

of the trust. Paige, 468; 3 Sandf. s. C., 559; 2 Sandf. S. C., 515.

s 101. Where a power in trust is created by will, and the testator

has omitted to designate by whom the power is to be exercised, its Applica

execution shall devolve on the court of chancery.

§ 102. The provisions contained in the second article of this title, tain prior

from section sixty-six to section seventy-one, both inclusive, in rela25 Barb., 100; 49 tion to express trusts and trustees, shall apply equally to powers in Babbar 133; trust, and the grantees of such powers. 498; 15 Abb. N. C., 123; 98 N. Y., 39; 83 N. Y., 174. 1735]

§ 103. The execution in whole or in part, of any trust power, Execution

may

be decreed in equity, for the benefit of the creditors or asof trust

signees of any person entitled as one of the objects of the trust, to power when com. compel its execution, when the interest of the objects of such trust creditors, is assignable. Beneficial

47 Barb., 613; 56 Barb., 606; 8 Bosw., 186; 7 Robt., 109; 79 N. Y., 478. powers, § 104. Every beneficial power, and the interest of every person &c., how affected by entitled to compel the execution of a trust power, shall pass to the insolvent assign

assignee of the estate and effects of the person in whom such power

or interest is vested, under any assignment authorised by the provis613, 674; '56 ions of the fifth chapter of this act. Barb., 606. Reserva- § 105. The grantor in any conveyance may reserve to himself any powers in power, beneficial or in trust, which he might lawfully grant to

another; and every power thus reserved, shall be subject to the provisions of this article, in the same manner as if granted to

another. granted.

§ 106. A power may be granted,

399; 5

Id.

tion of cer.

sections,

&c.

47 Barb.,

convey ances.

12 N. Y.,

404,

How pow.

ers to be

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