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922. Every power of disposition is deemed absolute by means of which the holder is enabled, in his lifetime, to dispose of the entire fee, in possession or in expectancy, for his own benefit.

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NOTE.-Jackson vs. Edwards, 7 Paige, p. 401.

Power to

dispose of

fee.

revoke.

923. Where the grantor in any conveyance reserves Power to to himself, for his own benefit, an absolute power of revocation, such grantor is still to be deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned.

924. A special and beneficial power is valid which Special and is granted:

1. To a married woman to dispose, during the marriage, of any estate less than a fee, belonging to her, in the property to which the power relates; or,

2. To the owner of a life estate in the property embraced in the power to make leases, commencing in possession during his life.

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beneficial powers, who may

take.

tion of

powers.

925. A special and beneficial power to make leases Construcof agricultural land for more than ten years, or of town leasing and city lots for more than twenty years, is void only as to the time beyond ten or twenty years, and authorizes leases for those terms or less.

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NOTE.-Stats. 1851, p. 169, Sec. 1. The contrary was
held in Root vs. Stuyvesant, 18 Wend., p. 257, “by a
divided vote against the opinion of all the Judges."-
Williams vs. Williams, 8 N. Y., p. 539. It is an
anomalous case, to be rejected and shunned, not to
be followed; as an authority it ought never to be
quoted."-Duer, J., Lang vs. Ropke, 5 Sandf.,
p. 372.
"An adjudication between the amicable parties then
before the Court, and not a precedent which can affect
the rights of third persons."-Bronson, J., Hone vs.
Van Shaick, 20 Wend., p. 569; and see Darling vs.
Rogers, 22 Wend.,
p. 496.

926. The power of the owner of a life estate to make leases is not transferable as a separate interest, but is annexed to his estate, and will pass, unless

Power to

make

leases by

owner for

life. spe

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Release of such power.

Mortgages by party having power to lease, etc.

Effect thereof.

Special and beneficial

powers liable to creditors.

Future beneficial powers.

Trust powers

cially excepted, by any grant of such estate. If spegially excepted in any such grant, it is extinguished.

927. The power of the owner of a life estate to make leases may be released by him to any person entitled to a future estate in the property, and is thereupon extinguished.

928. A mortgage executed by the owner of a life estate having a power to make leases, or by a married woman, by virtue of any beneficial power, 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.

929.

The effects on the power of a lien by mortgage, such as is mentioned in the last section, are: 1. That the mortgagee is entitled to an execution of the power, so far as the satisfaction of his lien may require it; and,

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.

930. Every special and beneficial power is liable to the claims of creditors, in the same manner as other interests that cannot be reached by execution, and the execution of the power may be adjudged for the benefit of the creditors entitled.

931. No beneficial power, general or special, not already specified and defined in this Title, can hereafter be created.

Ref

NOTE.-Jackson vs. Edwards, 7 Paige, p. 400.

932. Every trust power, unless its execution is imperative made expressly to depend on the will of the Trustee, is imperative, and imposes a duty on the Trustee, the

performance of which may be compelled for the benefit of the parties interested.

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933.

NOTE.-Arnold vs. Gilbert, 5 Barb., p. 195.

A trust power does not cease to be imperative where the Trustee has the right to select any, and exclude others, of the persons designated as the beneficiaries of the trust.

NOTE.-Hoey vs. Kenny, 25 Barb., p. 396.

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tion of

powers.

934. Where a disposition under a power is direct- Construeed to be made to, among, or between several persons, certain without any specification of the share or sum to be allotted to each, all the persons designated are entitled in equal proportion.

935. Where the terms of a power import that the Same. estate or fund is to be distributed among several persons 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 others.

936. If the Trustee of a power, with the right of selection, dies, leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as objects of the trust.

NOTE.-Hoey vs. Kenny, 25 Barb., p. 396.

When

Court to

execute

power.

937. Where a power in trust is created by will, Same. and the testator has omitted to designate, expressly or by necessary implication, by whom the power is to be executed, its execution devolves on the District Court.

NOTE.-Meakings vs. Cromwell, 5 N. Y., p. 139.

938. The execution, in whole or in part, of any trust power, may be adjudged for the benefit of the creditors or assignees of any person entitled, as one of

Execution power

of trust

when com

pelled by

creditors, etc.

Defective execution.

Application of certain sections.

the beneficiaries of the trust, to compel its execution, when his interest is transferable.

939. Where the execution of a power in trust is defective, in whole or in part, under the provisions of this Title, its proper execution may be adjudged in favor of the persons designated as the objects of the trust.

940. The provisions of the Title on Trust, saving the rights of other persons from prejudice by the misconduct of Trustees, and authorizing the Court to remove and appoint Trustees; the provisions of the Title on Succession, devolving express trusts upon the Court on the death of the Trustee; and the provisions of Section 871, in the Title on Uses and Trusts, apply equally to powers in trust, and the Trustees of such

power.

NOTE.-Hoey vs. Kenny, 25 Barb., p. 396; Hutchings vs. Baldwin, 7 Bosw., p. 236. On the general questions of the powers of Trustees as connected with the "cestui que trust" execution of resignation of the trust, see Butler vs. Welton, July Term, 1872, Cal. Rep. (No. 3,173); Weltch vs. Palmer, 39 Cal., p. 456; Learned vs. Welton, 40 Cal., p. 350.

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TITLE I. PERSONAL PROPERTY IN GENERAL.
II. PARTICULAR KINDS OF PERSONAL PROPERTY.

TITLE I.

PERSONAL PROPERTY IN GENERAL.

SECTION 946. By what law governed.

947. Future interests in perishable property, how protected.

law

946. If there is no law to the contrary in the place By what where personal property is situated, it is deemed to governed. follow the person of its owner, and is governed by the law of his domicile.

947. Where one has the present and another the future interest in a thing personal, and the thing is perishable, the latter may require it to be sold, and the proceeds invested for the benefit of both parties, according to their respective interests; except in case of a thing specially appropriated to a particular use.

Future

interests in

perishable property, how

protected.

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