Terms "author of a power" and holder defined. ing or reserving such power might himself perform for any purpose.3 S303. The author of a power, as the term is used in this Title, is the person by whom a power is created, of a power" whether by grant or devise; and the holder of a power is the person in whom a power is vested, whether by grant, devise or reservation. Division of powers. Definition of general powers. Definition of special powers. Beneficial powere. 1 R. S., 738, § 135. 'Barber v. Cary, 11 N. Y., 401, 403. $304. Powers are general or special, and beneficial or in trust. 1 R. S., 732, § 76. S305. A power is general, when it authorizes the alienation or incumbrance of a fee in the property embraced therein, by grant, will or charge, or any of them,' in favor of any person whatever. Ib., § 77. 1 See Tallmadge v. Sill, 21 Barb., 51, 52, 53. S 306. A power is special: 1. When a person or class of persons is designated, to whom the disposition of property under the power is to be made; or, 2. When it authorizes the alienation or incumbrance, by means of a grant, will, or charge, of only an estate less than a fee. Ib., 78. 1 Wright v. Tallmadge, 15 N. Y., 313, 314. S 307. A power is beneficial, when no person other' than its holder has, by the terms of its creation, any interest in its execution. Ib., § 79. 'Coster v. Lorillard, 14 Wend., 325, 329, 361, 362; Bar ber v. Cary, 11 N. Y., 402. trust. $308. A power is in trust, when any person or Powers in class of persons, other than its holder, has, by the terms of its creation, an interest in its execution. This section is new; but merely states the general princi- S309. A general power is in trust, when any person or class of persons, other than its holder, is designated as entitled to the proceeds of the disposition or charge authorized by the power, or to any portion of the proceeds or other benefits to result from its execution. 1 R. S., 734, § 94. S310. A special power is in trust: 1. When the disposition or charge which it author- trust. izes is limited to be made to any person or class of persons,' other than the holder of the power; or, 2. When any person or class of persons, other than the holder, is designated as entitled to any benefit from the disposition or charge authorized by the power. Ib., § 95. 1 Wright v. Tallmadge, 15 N. Y., 314. Coster v. Lorillard, 14 Wend., 325, 329, 361, 362. S311. No person is capable of creating a power, who is not at the same time capable of granting some estate in the property to which the power relates. 1 R. S., 732, § 75; Dempsey v. Tylee, 3 Duer, 97. $312. A power may be vested in any person. Who may er. create pow To whom power may 1 R. S., 735, § 109; omitting all the restrictions of the be given. statute, in accordance with § 170. S313. A power may be created only: 1. By a suitable clause, contained in a grant of some estate in the real property to which the power relates, or in an agreement to execute such a grant ;2 or, How to be created. Reserva tion of ance. When pow. ers irrevoc able. When pow er a lien. Power of sale in mortgage. Beneficial powers, &c., transferred by insol. 2. By a devise contained in a will.3 1 R. S., 735, § 106. 1 Selden v. Vermilya, 3 N. Y., 536; overruling S. C., 2 Sandf., 580. The last clause is new, but is founded upon the equi- S314. The grantor in any conveyance may reserve to 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. Ib., § 105. S315. Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it is given or reserved in the instrument creating the power. Ib., 108; Wright v. Delafield, 23 Barb., 517. S316. 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, 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. Ib., § 107. S 317. 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. 1 R. S., 737, § 133. $318. Every beneficial power, and the interest of every person entitled to compel the execution of a vent assign trust power, passes to the assignees, pursuant to ments, &c. statute, of the estate of a non-resident, absconding, insolvent or imprisoned debtor, or of a person of unsound mind, in whom such a power or interest is vested. 1 R. S., 735, § 104 $319. A power cannot be executed by any person who to not capable of disposing of real property. Ib., 109, omitting the reference to the next section, as being no exception, under the present state of the law. execute powers. women. S320. A married woman may execute a power Married during her marriage, without the concurrence of her husband, unless otherwise prescribed by the terms of the power. Ib., § 110. By this section "the disability of coverture is completely $321. No power can be executed by a married fa. woman before she attains her majority,' nor without being acknowledged by her in the manner prescribed by the chapter on RECORDING TRANSFERS.2 11 R. S., 735, § 111. 1 R. S., 736, § 117. See page 152. cuted. S322. A power can be executed only by a writ- How exe ten 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. 1 R. S., 735, § 113. by surviv S323. Where a power is vested in several persons, Execution all must unite in its execution; but in case any one ore, &c 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. Ib., § 112. The exception is new, though probably in Execution of power to dispose by devise. Execution of power to grant. $324. 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. 1 R. S., 736, § 115. S 325. Where a power is confined to a disposition dispose by by grant, it cannot be executed by will, even though the disposition is not intended to take effect until after the death of the person executing the power. Directions by author, garded. 1b., 116. S326. Where the author of a power has directed when disre 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. Id. Nominal conditions. When di rections of author to be observ ed. Ib., § 118. $327. Where the author of a power has directed 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. Ib., § 119. $328. 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. Ib., § 120. $329. 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 |