Reservation of powers in conveyances.

When power

Rel

to be done is to be considered as done.-Waldhams vs. Missionary Society, 12 N. Y., p. 422. In a will.-Dorland vs. Dorland, 2 Barb., p. 80.

892. The grantor in any conveyance may reserveto himself any power, beneficial or in trust, which he might lawfully grant to another; and every power thus reserved is subject to the provisions of this Title in the same manner as if granted to another.

893. Every power, beneficial or in trust, is irrevoirrevocable cable, unless an authority to revoke it is given or reserved in the instrument creating the power.

When power a lien.

NOTE.-Wright vs. Delafield, 23 Barb., p. 517.

894. A power is a lien upon the real property which it embraces, from the time the instrument in which it is contained takes effect; except that against creditors, purchasers, and incumbrancers acquiring their rights in good faith, and without notice from any person having an estate in such real property, the power is a lien only from the time the instrument in which it is contained is duly recorded.

Reb

Power of sale in mortgage.

Who to execute powers.

Married

women.

895. Where a power to sell real property is given to a mortgagee or other incumbrancer in an instrument intended to secure the payment of money, the power is to be deemed a part of the security, and vests in and may be executed by any person who, by assignment or otherwise, becomes entitled to the money so secured to be paid.

Reb

896. A power cannot be executed by any person not capable of disposing of real property.

897. A married woman may execute a power during her marriage, without the concurrence of her husband, unless otherwise prescribed by the terms of the power.

NOTE.-Wright vs. Tallmadge, 15 N. Y., p. 313; Leavitt vs. Pell, 27 Barb., p. 322.

898. No power can be executed by a married Same. woman before she attains her majority, nor without

being acknowledged by her in the manner prescribed by the Chapter on Recording Transfers.

executed.

899. A power can be executed only by a written How instrument which would be sufficient to pass the estate or interest intended to pass under the power, if the person executing the power was the actual owner.

by

900. Where a power is vested in several persons, Execution all must unite in its execution; but, in case any one survivors. or more of them is dead, the power may be executed by the survivor or survivors, unless otherwise prescribed by the terms of the power.

901. Where a power to dispose of real property is confined to a disposition by devise or will, the instrument of execution must be a will duly executed according to the provisions of the Title on Wills.

Execution

of power to

dispose by

deviso.

of power to

902. Where a power is confined to a disposition Execution by grant, it cannot be executed by will, even though dispose by the disposition is not intended to take effect until after the death of the person executing the power.

903. Where the author of a power has directed or authorized it to be executed by an instrument which would not be sufficient in law to pass the estate, the power is not void, but its execution is to be governed by the rules before prescribed in this Title.

grant.

Directions when dis

by author,

regarded.

904. Where the author of a power has directed Same. any formalities to be observed in its execution, in addition to those which would be sufficient to pass the estate, the observance of such additional formalities is not necessary to a valid execution of the power.

905.

905. Where the conditions annexed to a power Nominal are merely nominal, and evince no intention of actual

benefit to the party to whom or in whose favor they

conditions.

are to be performed, they may be wholly disregarded in the execution of the power.

906. With the exceptions contained in the preceding sections, the intentions of the author of a power, as to the mode, time, and conditions of its execution, must be observed, subject to the power of the Court to supply a defective execution in the cases provided in Sections 915 and 939.

NOTE.-The mode-Demarest vs. Ray, 29 Barb., p. 563; the time-Richardson vs. Sharpe, 29 Barb., p. 222; Allen vs. De Witt, 3 N. Y., p. 278; the conditionsHotchkiss vs. Elting, 26 Barb., p. 46.

907. 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 be certified in writing thereon. In the first case the instrument of execution, in the second the certificate, must be subscribed by the party whose consent is required; and to entitle the instrument to be recorded, such signature must be duly proved or acknowledged, according to the Chapter on Recording Transfers.

NOTE.-Barber vs. Cary, 11 N. Y., p. 398.

908. Where the consent of several persons to the execution of a power is requisite, all must consent thereto; but in case any one or more of them is dead, the consent of the survivors is sufficient, unless otherwise prescribed by the terms of the power.

NOTE.-See Barber vs. Cary, 11 N. Y., p. 397. This section is a departure from the rule laid down in that case. Compare Sec. 900, ante. See, also, Secs. 1355 (247), 1425 (296), and 1588 (200) of the Co. Civ. Pro., Cal.

909. Every instrument executed by the holder of a power conveying an estate or creating a charge which such holder would have no right to convey or create except by virtue of his power, is to be deemed.

a valid execution of the power, even though not recited or referred to therein.

ments

910. Every instrument, except a will, in execution Instruof a power, even though the power is one of revocation deemed only, is to be deemed a conveyance, within the meaning of the Chapter on Recording Transfers.

conveyances.

dispositions

not void.

911. A disposition or charge, by virtue of a power, Certain more extensive than was authorized thereby, is not therefore void; but every estate or interest so created, so far as it is embraced by the terms of the power, is valid.

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912. The period during which the absolute right of alienation may be suspended by an instrument in execution of a power must be computed, not from the date of the instrument, but from the time of the creation of the power.

913. No estate or interest can be given or limited to any person by an instrument in execution of a power which could not have been given or limited at the time of the creation of the power.

NOTE.-See Dempsey vs. Tylee, 3 Duer, pp. 73, 98, 101-2; and Hoey vs. Kenny, 25 Barb., p. 396.

women,

914. When a married woman, entitled to an estate Married in fee, is authorized by a power to dispose of such their estate during her marriage, she may, by virtue of such power, create any estate which she might create if unmarried.

authority.

execution.

915. Purchasers for a valuable consideration, claim- Defective ing under a defective execution of a power, are entitled to the same relief as similar purchasers claiming under a defective conveyance from an actual owner.

NOTE.-Barber vs. Cary, 11 N. Y., p. 400.

262

Fraud.

General and

powers to married

Reh

CIVIL CODE.

916. Instruments in execution of a power are affected by fraud in the same manner as like instruments executed by owners or Trustees.

917. A general and beneficial power is valid which beneficial gives to a married woman power to dispose, during her marriage and without the concurrence of her husband, of a present or future estate in real property conveyed or devised to her in fee.

women.

Estate of owner for life, etc., when changed into a fee.

Certain

powers create a

fee.

Same.

Effect of power to devise inheritance in certain cases.

NOTE.-See Jackson vs. Edwards, 7 Paige, pp. 386,

401.

918. Where an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee, absolute in favor of creditors, purchasers, and incumbrancers, but subject to any future estates limited thereon, in case the power should not be executed or the property should not be sold for the satisfaction of debts.

NOTE.-Jackson vs. Edwards, 22 Wend., p. 509.

919. Where an absolute power of disposition, not accompanied by any trust, is given to any person to whom no particular estate is limited, such person also takes a fee, subject to any future estate that may be limited thereon, but absolnte in favor of creditors, purchasers, and incumbrancers.

920. In all cases where an absolute power of disposition is given, not accompanied by any trust, and no remainder is limited on the estate of the holder of the power, he is entitled to an absolute fee.

921. Where a general and beneficial power to devise the inheritance is given to the owner of an estate for life or for years, he is deemed to possess an absolute power of disposition, within the meaning of the last three sections.

NOTE.-See Talmadge vs. Sill, 21 Barb., p. 52.