Hence a payment in good faith to a party having a power to receive it, does not make the party paying responsible for the application of the money. When the purposes for which the power was created have ceased, the power itself ceases also. On the death of the surviving grantee of a power, the power does not descend to his heirs nor pass to his personal representatives, but if unexecuted, vests in the supreme court, and is to be executed by some person appointed for that purpose, under the direction of the court. The court may accept the resignation of the grantee of a power, under the like regulations as are prescribed for receiving the resignation of a trustee ; the court may remove him if he has violated or threatened to violate his duty, or if he is insolvent or his insolvency is apprehended, or if for any cause he is deemed an unsuitable person to execute the power; and appoint a new grantee of the power in place of the one resigned or removed, or cause the power to be executed by some one of the officers of the court under its direction.

We have seen by what words, and by what instruments a power may be created; it remains to show by what instruments and in what manner it may be executed. As a general rule it may be laid down that when the instrument creating the power prescribes the manner of its execution, that manner must be followed. Thus if the power be created by will, and it directs a sale of real estate at public auction, to pay off legacies as they become due, and the executor sells at private sale before the legacies become due, the sale is void. (Pendleton v. Fay, 2 Paige, 202.)

The time of executing a trust power of sale depends on the intention of the grantor of the power. If the testator devises a life estate to his wife, and authorizes his trustees, after his death, to sell the land and distribute the proceeds among the children of B., who is then living, a sale before the death of the wife will be premature. (Per Ch. Walworth, Egerton v. Conklin, 25 Wend. 224.)

The courts have been very strict in requiring an adherence to the terms of the power. The revised statutes have introduced many wise provisions on this branch of our jurisprudence. Thus, a power vested in several persons must be executed by all, unless before its execution one or more of them shall have died, when the power can be executed by the survivor. (1 R. S. 735, § 112. Ogden v. Smith, 2 Paige, 198. Taylor v. Morris, 1 Comst. 358.) be executed except by some instrument in writing,

No power can which would be

sufficient in law to pass the estate under the power, if the persons executing the power were the actual owners. (1 R. S. 735, § 113.) And by the subsequent section, every instrument except a will in execution of a power, and although the power may be a power of revocation only, shall be deemed a conveyance within the meaning, and subject to the provisions of that part of the revised statutes relative to the proof and recording of conveyances. Where a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be a will duly executed according to the provisions relative to the execution and proof of wills of real estate. (Id. § 115.) Where a power is confined to a disposition by grant it cannot be executed by will, although the disposition is not intended to take effect until after the death of the party executing the power. (Id. § 116.)

A power to sell real estate does not authorize the giving of a mortgage. (The Albany Ins. Co. v. Bay, 4 Comst. 9. Coutant v. Servoss, 3 Barb. 128.)

If a married woman execute a power by grant, the concurrence of her husband as a party is not requisite, but the grant is not a valid execution of the power unless it be acknowledged by her on a private examination, in the manner prescribed by the act in relation to the proof and recording of conveyances by married women. (1 R. S. › 736, § 117. Id. 758, § 10.)

When the grantor of a power shall have directed or authorized it to be executed by an instrument, not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules before prescribed in the article. (Id. 736, $118.)

The effect of this enactment is to refer to the courts the execution of a power when the instrument pointed out by the grantor of the power is defective, as they had already done in case no person was designated in the will creating a power, by whom it was to be exercised.

It sometimes happens that the grantor of a power directs certain formalities to be observed in the execution of the power, in addition to those which would be sufficient by law to pass the estate. In cases of that kind the statute provides that the observance of such additional formalities shall not be necessary to a valid execution of the power. (Id. § 119.) In other cases, again, the conditions annexed to a power may be merely nominal, and evince no intention

of actual benefit to the party to whom or in whose favor they are to be performed. In such cases, those conditions may be wholly disregarded in the execution of the power. (Id. § 120.)

The intentions of the grantor of a power as to the mode, time and conditions of its execution, must be observed, except as to such matters as are merely nominal, or are unnecessary to pass the estate, subject, however, to the power of the supreme court to supply a defective execution of the power. (Id. § 120, 121.) When the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed, or must be certified in writing thereon. In the first case the instrument of execution, in the second the certificate, must be signed by the party whose consent is required; and to entitle the instrument to be recorded such instrument must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of land. We have already seen that if the consent of more than one person is required, and the consent of one or more is not given, either by death or otherwise, the power cannot be executed. (Id. § 122. Barber v. Cary, 1 Kernan, 397, ante.) The statute has provided that no disposition by virtue of a power shall be void, in law or in equity, on the ground that it is more extensive than was authorized by the power; but every estate or interest so created, so far as embraced by the terms of the power, shall be valid. (1 R. S. 737, § 123.)

The omission of the grantee of a power to recite, in his instrument of conveyance, the power by virtue of which it is made, does not render it invalid, provided he had a right to convey, under his power, what he professes to convey. (Id. § 124.)

Instruments in execution of a power are effected by parol, both at law and in equity, in the same manner as conveyances by owners or trustees. (Id. 125.)

Lands embraced in a power to devise pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear expressly, or by necessary implication. (Id. 126. Botler v. DePeyster, 25 Barb. 539. Jackson v. Delancy, 13 John. 537.)

A power is subject to the incidents of other property. An estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust with a right of selection, is deemed an advancement to such defendant, within the provisions of the

chapter of the title to real property by descent. Where a party attempts to suspend the alienation of property by an instrument in execution of a power, the period from which the computation is made is not from the date of the instrument, but from the time of the creation of the power. (1 R. S. 737, §§ 127, 128.)

No estate or instrument 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. (Id. § 129.)

When a married woman, entitled to an estate in fee, is authorized by a power to dispose of such estate during her marriage, she may by virtue of such power create any estate which she might create if unmarried. (Id. § 130.)

A married woman cannot convey her real estate directly to her husband. She cannot, therefore, by uniting with him in a deed of her real property to a trustee, reserve a valid power to appoint it to his use, or one by which she can, by a last will and testament, devise to him. A will by a married woman, in pursuance and in execution of a power so reserved, by which she devises her real estate to her husband, is inoperative and void. During coverture she possesses no power to convey by deed to her husband, and is destitute of any testamentary capacity. Such power or capacity cannot be created over lands belonging to herself in fee, by virtue of any agreement made, during coverture, between herself and her husband. It can only be created or reserved by an ante-nuptial agreement. Having power to grant or devise, while a feme sole, she may by such an agreement reserve a power by the due execution of which she may make a valid will in favor of her husband. (Demprey v. Tyler, 3 Sandf. S. C. R. 73.)

But there is a way, aside from the doctrine of powers, or trusts, by which a married woman can vest her real estate in her husband. She can unite with him in a conveyance of it to a third person in fee. A reconveyance of it by such third person to the husband in fee, will vest the title in him. (Id.)

With regard to the execution of powers, it is held that there must be a substantial compliance with every condition required to precede or accompany its exercise. (Per Gardiner, J. in Allen v. De Witt, 3 Comst. 278. Chance on Powers, 172, § 454. 1 R. S. 737, § 121. Roseboom v. Mosher, 2 Denio, 61.) This rule is well illustrated in Allen v. De Witt, (supra.) A testator by his will author

ized his executors "to sell his real and personal estate, in such parcels, at such times, and for such considerations as they should judge proper for the purpose of discharging his debts and creating funds for the support of his family." After payment of debts, he directed the avails of his property to be equally divided among all his children. Before the testator's debts were paid, the husband of one of the daughters being indebted to the plaintiff, procured from the executors a conveyance of a portion of the real estate for the purpose of enabling him to mortgage it to secure the debt. Nothing was paid for this conveyance, but the husband agreed to disencumber the land by paying the mortgages, and then to reconvey to the executors, or in default thereof, that the value of the land might be charged against his wife's distributive share in the estate. On a bill filed to foreclose the mortgage given by the husband and wife according to this arrangement, it was held by the court of appeals that the conveyance was not an execution of the power contained in the will, and passed no title, and therefore that the mortgage was not a lien upon the interests of the testator's other heirs in the premises. Under such a power it seems that a sale of the real estate by the executor, for the purpose of distribution among the testator's children, could not be made until after the debts were paid, and that the sale should then be absolute for money, or funds capable of distribution according to the will.)

In Roseboom v. Mosher, (supra,) it was said by Bronson, Ch. J. that when a power is given by will to executors to sell lands, in case of a deficiency of personal assets to pay debts and legacies, and no estate is devised to the executors, the purchaser, to sustain his title, must show the fact of such deficiency. A distinction was taken in that case between an actual deficiency, and the opinion of the executor as to such deficiency. In the one case the power is not well executed, unless a deficiency be shown; in the other, where the testator has authorized the sale by the executor, if in his opinion it shall become necessary, for the payment of debts and legacies, the necessity need not be shown. The fact that the executor makes the sale is evidence of his opinion as to the necessity, and the conveyance is conclusive. (Kellogg v. Slauson, 1 Kern. 302.)

With regard to the defective execution of a power in trust, in whole or in part, the statute enacts that its proper execution may be decreed in equity, in favor of the persons designated as the objects of the trust; (1 R, S. 737, § 131 ;) and by the subsequent section, the