This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In New York and in five other states which have adopted its legislation in this regard, the law of powers has been the subject of statutory codification, involving numerous changes from the law as it exists in England and other states.77 These statutory provisions in express terms abolish powers as they formerly existed, but, in the solution of questions not covered by the statute, the English law on the subject is occasionally referred to,78 and in many respects the same principles apply as before the statutory change. For a discussion of this peculiar code system, and of the numerous decisions which have been rendered in the construction and application of its provisions, reference must be made to local treatises, and here there will be made mention only of the statutory classification of the subject.79 it authorizes is limited to be made to a person or class of persons other than the donee.82 Powers in trust are imperative unless there is an express direction, in the creation of the power, that it shall he discretionary83 and consequently powers in trust, as known to the English law, would be included in the statutory class of the same name.
73. 1 Story, Equity Jur. Sec. 176, note. See 8 Columbia Law Rev. at p. 652, 11 Id. at p. 664. Compare 12 Id. 161.
74. Com. v. Duffield, 12 Pa. St. 277; Humphrey v. Campbell, 59 S. Oar. 39, 37 S. E. 26; Wales' Adm'r v. Bowdish's Ex'r, 61 Vt. 23, 4 L. R. A. 819, 17 Atl. 1000.
75. Johnson v. Cushing, 15 N. H. 298.
75a. 1 & 2 Vict. c. 110, 3. 13. See Williams, Real Prop., 381; Farwell, Powers, 509.
76. 1 Stimson's Am. St. Law, Sec.Sec. 1656, 1657; Chaplin, Express Trusts, Sec. 711; 4 Sharswood & \Budd's Lead. Cas. Real Prop. 25, 28. See Alford's Adm'r v. Alford's
Adm'r, 56 Ala. 350; Hume v. Randall, 141 N. Y. 573, 36 N. E. 402; Ford v. Ford, 70 Wis. 19, 5 Am. St. Rep. 159, 35 N. W. 298. See also Farmers' Loan & Trust Co. v. Kip, 192 N. Y. 266, 85 N. E. 59: and note based thereon, in 8 Columbia Law Rev. at p. 654, as regards the New York Law.
77. 1 Stimson's Am. St. Law. Sec.Sec. 1650-1659; New York Real Prop. Law, Sec.Sec. 130-182; Michigan Howell's Ann. St. 191/, Sec.Sec. 10756-10817; Minnesota Gen. Stat. 1913, Sec.Sec. 6727-6787; North Dakota Comp. Laws 1913, Sec.Sec. 5381-5443; South Dakota Civil Code, Sec.Sec. 319-381; Wisconsin Stat. 1913, c. 97.
It would seem that a power in a trustee to make leases, though the exercise of the power is not restricted to the period of the rule, might be upheld on a like' theory, that the power of leasing, so called, is merely a provision to the effect that upon the making of a lease the trust shall be suspended for the period of the lease, in the sense that the cestui can, during such period, make no claim to the possession of the land as against the tenant under the lease.95a
Powers are, by these statutes, divided, (1) according to the degree of control given over the property, into general and special powers, and, (2) according to the persons interested in their exercise, into beneficial powers and powers in trust. A power is general where it authorizes the transfer or incumbrance of a fee, by either a conveyance or a will or a charge, in favor of any person whatever, while it is special if the persons or class of persons in whose favor it may be exercised are named, or if it authorizes the creation or incumbrance of an estate less than a fee.80 This division into general and special powers corresponds with the Eng-lish division into general and limited or particular powers, so far as it is based on the designation of persons in whose favor the power must be exercised.81
A power is, under these statutes, "beneficial," if no person other than the donee has, by the terms of its creation, any interest in its execution, while a power is "in trust" if any person or persons, other than the donee of the power, is designated as entitled to any portion of the proceeds or other benefits to result from its execution, or if the disposition or charge which
78. See Cha lin, Exp ress Trusts and Powers, Sec. 531; Reeves, Real Property, 1210 note.
79. A Treatise on Express Trusts and Powers, by Stewart Chaplin, Esq., is the most reliable authority on the subject.
80. New New York Real Prop. Law, Sec.Sec. 113-115.
81. See Farwell, Powers, 8; Sugden, Powers, 394.
Sec. 334. Application of Rule against Perpetuities to powers.- (a) As determined by language creating power. If a power of appointment, by the terms of its creation, may possibly be exercised after the time fixed by the Rule against Perpetuities, the power is bad.84 The language by which it is sought to create the power is in effect a limitation of an estate to arise on an event, the exercise of the power, which may not occur until after the legal period. Accordingly a power given to an unborn person to appoint by will, is invalid, as is a special power, at least, given to such a person, to appoint either by deed or will.85
A power, even though it is to be exercised within the period of the rule, is invalid if such that the limitations created in the exercise of the power would necessarily be invalid under the rule.86
A power which must be exercised, if at all, within a reasonable time, is valid, provided a period over twenty-one years exceeds, in the particular case, a
82. New York Real Prop. Law, Sec.Sec. 116-118.
83. Id. Sec. 137.
84. Gray, Perpetuities, Sec. 475; Bristow v. Boothby, 2 Sim. & S. 465; Woodbridge v. Winslow, 170 Mass. 388, 49 N. E. 738.
, 85. Gray, Perpetuities, Sec. 477, citing Wollaston v. King, L. R.
8 Eq. 165; Morgan v. Gronow, L.
R. 16 Eq. 1. See In re Hargreaves, 43 Ch. Div. 401. For a strong argument to the effect that the same rule applies to a general power exercisable by deed or will, see article by J. L. Thorn-dike, Esq., in 28 Harv. Law Rev. 664.