§ 136. Effect of mortgage by grantee.-A mortgage executed by a tenant for life, having a power to make leases, does not extinguish or suspend the power; but the power is bound by the mortgage in the same manner as the real property embraced therein, and the effects on the power of such lien by mortgage are: 1. That the mortgagee is entitled to an execution of the power so far as the satisfaction of his debt requires; and, 2. That any subsequent estate, created by the owner, in execution of the power, becomes subject to the mortgage as if in terms embraced therein. [R. S., 2447, pt. II, ch. 1, tit. II, §§ 90, 91, unchanged in substance.] § 137. When a trust power is imperative.-A trust power, unless its execution or nonexecution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled for the benefit of the person interested. A trust power does not cease to be imperative where the grantee has the right to select any, and exclude others, of the persons designated as the beneficiaries of the trust. [R. S., 2448, pt. II, ch. 1, tit. II, §§ 96, 97, § 138. Distribution when more than one beneficiary. - Where a disposition under a power is directed to be made to, among, or between, two or more persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion; but when the terms of the power import that the estate or fund is to be distributed among the persons so designated, in such manner or proportions as the grantee of the power thinks proper, the grantee may allot the whole to any one or more of such persons in exclusion of the others. [R. S. 2448, pt. II, ch. 1, tit. II, §§ 98, 99, § 139. Beneficial power subject to creditors.- A special and beneficial power is liable to the claims of creditors in the same manner as other interests that can not be reached by execution; and the execution of the power may be adjudged for the benefit of the creditors entitled. [R. S. 2447, pt. II, ch. 1, tit. II, § 93, unchanged in substance.] § 140. Execution of power on death of trustee. If the trustee of a power, with the right of selection, dies leaving the power anexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as beneficiaries of the trust. [R. S. 2448, pt. II, ch. 1, tit. II, § 100, § 141. When power devolves on court.- Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its execution devolves on the supreme court. [R. S. 2448, pt. II, ch. 1, tit. II, § 101, unchanged in substance.] § 142. When creditors may compel execution of trust power.The execution, wholly or partly, of a trust power may be adjudged for the benefit of the creditors or assignees of a person entitled as a beneficiary of the trust, to compel its execution, where his interest is assignable. [R. S. 2448, pt. II, ch. 1, tit. II, § 103, unchanged in substance.] § 143. Defective execution of trust power.— Where the execu tion of a power in trust is defective, wholly or partly, under the provisions of this article, its proper execution may be adjudged in favor of the person designated as the beneficiary of the trust. [R. S. 2451, pt. II, ch. 1, tit. II, § 131, 1 § 144. Effect of insolvent assignment.- A beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass, respectively, to a trustee or committee of the estate of the person in whom the power or interest is vested, or an assignee for the benefit of creditors. [R. S. 2448, pt. II, ch. 1, tit. II, § 104, § 145. How power must be executed.- A power can be executed only by a written instrument, which would be sufficient to pass the estate, or interest, intended to pass under the power, if the person executing the power were the actual owner. [R. S. 2449, pt. 11, ch. 1, tit. II, § 113, unchanged in substance.] § 146. Execution by survivors.- Where a power is vested in two or more persons, all must unite in its execution; but if before its execution, one or more of such persons dies, the power may be executed by the survivor or survivors. § 147. Execution of power to dispose by devise.- Where a power to dispose of real property is confined to a disposition by devise or will, the instrument must be a written will, executed as required by law. [R. S. 2449, pt. II, ch. 1, tit. II, § 115, unchanged in substance.] § 148. Execution of power to dispose by grant.-Where a power is confined to a disposition by grant, it can not be executed by will, although the disposition is not intended to take effect until after the death of the person executing the power. [R. S. 2449, pt. II, ch. 1, tit. II, § 116, § 149. When direction by grantor does not render power void. Where the grantor of a power has directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power is not void, but its execution is to be gov erned by the provisions of this article. [R. S. 2450, pt. II, ch. 1, tit. II, § 118, unchanged in substance.] § 150. When directions by grantor need not be followed.Where the grantor of a power has directed any formality to be observed in its execution, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formality is not necessary to the valid execution of the power. [R. S. 2450, pt. II, ch. 1, tit. II, § 119, § 151. Nominal conditions may be disregarded. Where the conditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor, they are to be performed, they may be wholly disregarded in the execution of the power. [R. S. 2450, pt. II, ch. 1, tit. II, § 120, Except as provided in § 152. Intent of grantor to be observed. this article, the intentions of the grantor of a power as to the manner, time and conditions of its execution must be observed; subject to the power of the supreme court, to supply a defective execution as provided in this article. [R. S. 2450, pt. II, ch. 1, tit. II, § 121, § 153. Consent of grantor or third person to execution of power. Where the consent of the grantor or a third to person the execution of a power is requisite, such consent shall be ex pressed in the instrument by which the power is executed, or in a written certificate thereon. In the first case, the instrument of execution, in the second, the certificate, must be subscribed by the person whose consent is necessary; and to entitle the instrument to be recorded, such signature must be acknowledged or proved and certified in like manner as a deed to be recorded. [R. S. 2450, pt. II, ch. 1, tit. II, § 122, unchanged in substance. See Kissam v. Durkes, 49 N. Y. 602, in which Judge Rapallo says: "Whether one of the grantors of the power would come under the designation of a third party as used in this section, is not very material to the present case, though we think that the correct construction of the section would require an affirmative answer to that question if it arose."] § 154. When all must consent.-Where the consent of two or more persons to the execution of a power is requisite, all must consent thereto; but if, before its execution, one or more of them die, the consent of the survivor or survivors is sufficient, unless otherwise prescribed by the terms of the power. [New. The last clause of this section is not now the law; see Barber v. Cary, 11 N. Y. 397; but it seems to be just and corresponds to the provisions of § 146.] § 155. Omission to recite power. An instrument executed by the grantee of a power, conveying an estate or creating a charge, which he would have no right to convey or create, except by virtue of the power, shall be deemed a valid execution of the power, although the power be not recited or referred to therein. [R. S. 2450, pt. II, ch. 1, tit. II, § 124, unchanged in substance.] § 156. When devise operates as an execution of the power.Real property embraced in a power to devise passes by a will purporting to convey all the real property of the testator, unless the intent that the will is not to operate as an execution of the power, appears, either expressly or by necessary implication. |