$83. In all cases, where such power of disposition is given, and ART. 3. no remainder is limited on the estate of the grantee of the power, Ib. such grantee shall be entitled to an absolute fee.

power to de

$84. Where a general and beneficial power, to devise the inherit- Effect of ance, shall be given to a tenant for life or for years, such tenant shall vise inheritbe deemed to possess an absolute power of disposition, within the tain cases. meaning and subject to the provisions of the three last preceding sec

tions.

ance in cer

S85. Every power of disposition shall be deemed absolute, by Power to dismeans of which the grantee is enabled, in his life time, to dispose of pose of fee. the entire fee, for his own benefit.

voke.

S86. Where the grantor in any conveyance shall reserve to him- Power to reself, for his own benefit, an absolute power of revocation, such grantor shall still be deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned. $87. A special and beneficial power may be granted,

Special and

beneficial powers, who

1. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fec, be- may take. longing to her, in the lands to which the power relates:

2. To a tenant for life of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life.

leases

S88. The power of a tenant for life to make leases, is not assigna- Power to ble as a separate interest, but is annexed to his estate, and will pass, makonunt for (unless specially excepted) by any conveyance of such estate. If life. specially excepted in any such conveyance, it is extinguished.

such power.

$89. Such power may be released by the tenant to any person en- Release of titled to an expectant estate in the lands, and shall thereupon be extinguished.

power to

$ 90. A mortgage executed by a tenant for life having a power Mortgages by to make leases, or by a married woman, by virtue of any beneficial party having power, does not extinguish or suspend the power; but the power is lease, &c. bound by the mortgage, in the same manner as the lands embraced

therein.

$91. The effects of such a lien by mortgage on the power, are, Effect there1. That the mortgage is entitled, in equity, to an execution of the of

power, so far as the satisfaction of his debt may require :

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.

$92. No beneficial power, general or special, hereafter to be cre- Future beneated, other than such as are already enumerated and defined in this fical powers. Article, shall be valid.

TITLE 2.

Benefical

to creditor.

393. Every special and beneficial power is liable, in equity, to the claims of creditors, in the same manner as other interests that canpowers hable not be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled. General pow- 94. A general power is in trust, when any person or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the lands, according to the power. $95. A special power is in trust,

ers, when in

trust.

Special powers, when in

trust.

Trust powers imperative.

of selection.

1. When the disposition which it authorises, is limited to be made to any person or class of persons, other than the grantee of such power, entitled to the proceeds or any portion of the proceeds, or other benefit to result from the execution of the power:

2. When any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorised by the power.

$96. Every trust power, unless its execution or non-execution 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 in equity, for the benefit of the parties interested.

Effect of right $97. 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 objects of the trust.

Construction

of certain powers.

Ib.

When chan

cery to exe

$98. Where a disposition under a power is directed to be made to, or among or between several 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.

$99. But when the terms of the power import that the estate or fund is to be distributed between the persons so 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 other.

$ 100. If the trustee of a power, with the right of selection, shall cute power. die, leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated, as objects

Ib.

Application of certain

prior sections.

of the trust.

$101. Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery.

$ 102. The provisions contained in the second Article of this Title, from section sixty-six to section seventy-one, both inclusive, in relation to express trusts and trustees, shall apply equally to powers in trust, and the grantees of such powers.

ART. 3.

when com

ditors, &c.

$103. The execution in whole or in part, of any trust power, may be decreed in equity, for the benefit of the creditors or assignees Execution of of any person entitled as one of the objects of the trust, to compel its trust power execution, when the interest of the objects of such trust is assignable. polled by cre$104. Every beneficial power, and the interest of every person Beneficial entitled to compel the execution of a trust power, shall pass to the how affected assignees of the estate and effects of the person in whom such power assignments, or interest is vested, under any assignment authorised by the provisions of the fifth Chapter of this Act.

powers, &c.

by insolvent

&c.

of powers in

S 105. The grantor in any conveyance, may reserve to himself Reservation any power, beneficial or in trust, which he might lawfully grant to conveyances. another; and every power thus reserved, shall be subject to the provisions of this Article, in the same manner as if granted to another.

S106. A power may be granted,

1. By a suitable clause contained in a conveyance of some estate in the lands, to which the power relates:

2. By a devise contained in a last will and testament.

S107. Every power shall be a lien or charge upon the lands which it embraces, as against creditors and purchasers in good faith and without notice, of or from any person having an estate in such lands, only from the time the instrument containing the power shall be duly recorded. As against all other persons, the power shall be a lien from the time the instrument in which it is contained, shall take effect.

$108. Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it, is granted or reserved in the instrument creating the power.

How powers to be granted.

When pow

ers to be recorded.

When powers irrevocable.

cute powers.

$109. A power may be vested in any person capable in law of Who to exeholding, but cannot be exercised by any person not capable, of aliening lands, except in the single case mentioned in the next section.

Married

$110. A married woman may execute a power during her marriage, by grant or devise, as may be authorised by the power, with- womon. out the concurrence of her husband, unless by the terms of the power its execution by her, during marriage, is expressly or impliedly prohibited.

S111. No power vested in a married woman, during her infancy, can be exercised by her, until she attains her full age.

Ib.

$112. Where a power is vested in several persons, all must unite Execution by in its execution; but if previous to such execution, one or more of survivors, &c such persons shall die, the power may be executed by the survivor

or survivors.

S113. No power can be executed except by some instrument in How exccutwriting, which would be sufficient in law to pass the estate or inter- ed.

TITLE

Instruments deemed conveyances.

Execution of power to dispose by devise.

Ib. to dispose by grant.

Married

women to

executions.

est intended to pass under the power, if the person executing the power were the actual owner.

$114. 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 the third Chapter of this Act.

$115. 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 of the sixth Chapter of this Act.

$116. 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.

$117. If a married woman execute a power by grant, the concuracknowledge rence of her husband, as a party, shall not be requisite, but the grant shall not be a valid execution of the power, unless it be acknowledged by her on a private examination, in the manner prescribed in the third Chapter of this Act, in relation to conveyances by married wo

grantor.

men.

Directions by $118. Where the grantor of a power shall have directed or authorised 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 this Article.

Ib.

Nominal

conditions.

When direc

tor to observed.

$119. When the grantor shall have directed any formalities to be observed in the execution of the power, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power.

$ 120. 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.

S 121. With the exceptions contained in the preceding sections, tions of gran- the intentions of the grantor of a power, as to the mode, time and conditions of its execution, shall be observed, subject to the power of the court of chancery, to supply a defective execution, in the cases herein after provided.

Consent of third persons

of power.

S 122. When the consent of a third person to the execution of a to execution power is requisite, such consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon. In the first case, the instrument of execution, in the second, the certificate, shall be signed by the party whose consent is required; and to entitle the instrument to be recorded, such signature must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of lands.

ART. 3.

Certain dis

S 123. 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 authorised by the power; but every estate or interest so created, so far positions, not as embraced by the terms of the power, shall be valid.

void.

recite power.

S124. Every instrument executed by the grantee of a power, con- Omission to veying an estate or creating a charge, which such grantee would have no right to convey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein.

$ 125. Instruments in execution of a power are affected by fraud, Fraud. both in law and equity, in the same manner as conveyances by own

ers or trustees.

devise, how

$126. Lands embraced in a power to devise, shall pass by a will Power to purporting to convey all the real property of the testator, unless the executed by intent that the will shall not operate as an execution of the power, shall appear, expressly or by necessary implication.

terms of will.

tates to be

S 127. Every estate or interest given by a parent to a descendant, Certain esby virtue of a beneficial power, or of a power in trust with a right of advanceselection, shall be deemed an advancement to such descendant, within the provisions of the second Chapter of this Act.

ments.

of term of

$128. The period during which the absolute right of alienation Computation may be suspended, by any instrument in execution of a power, shall suspension. be computed, not from the date of such instrument, but from the time of the creation of the power.

take under

$ 129. No estate or interest can be given or limited to any person, who may by an instrument in execution of a power, which such person would powers. not have been capable of taking, under the instrument by which the power was granted.

men, their

&c.

$130. When a married woman, entitled to an estate in fee, shall Married wobe authorised by a power, to dispose of such estate during her mar- authority, riage, she may, by virtue of such power, create any estate, which she might create if unmarried.

ecutions.

$131. Where the execution of a power in trust shall be defective, Defective exin whole or in part, under the provisions of this Article, its proper execution may be decreed, in equity, in favor of the persons designated as the objects of the trust.

$132. Purchasers for a valuable consideration, claiming under a Ib. defective execution of any power, shall be entitled to the same relief in equity, as similar purchasers, claiming under a defective conveyance from an actual owner.

sell in mort

$133. Where a power to sell lands, shall be given to the grantee, Powers to in any mortgage or other conveyance intended to secure the payment gages. of money, the power shall be deemed a part of the security, and shall