This proposed subdivision would obviate this inconvenience:

"5. To execute and perform such charitable, religious, educational, and benevolent uses and trusts as are authorized by law."

9. Sec. 98. The Code of Civil Procedure (Section 1391), as conceded, has put an end to a large "spendthrift trust" in this state. See King v.. Irving, 103 App. Div. 420; Sloane v. Tiffany, 103 App. Div. 540. The effect of section 1391 of the Code is to permit certain creditors of beneficiaries of trusts created under the third subdivision of Sec. 76 of the old Real Property Law, to have execution on their judgments, So important a re form in our domestic law of trusts deserves to be called to the attention of lawyers and laymen reading the Statute on Uses and Trusts and such a clause might be added to this section. It ought not to be left obscurely contained in a long section of the Code of Civil Procedure.

10. Sec. 100. Section 100 of this chapter as it now stands misses the entire reform of the Revised Statutes. The intention of this section of the Revised Statutes was to abolish equitable estates," which in the development of jurisprudence had come to resemble legal estates. Thus a beneficiary of a trust might have an equitable fee or an equitable estate tail. If an estate tail, it might be barred by equitable tenants in tail. All equitable estates were susceptible of the same limitations as legal estates. The re visers of the Revised Statutes, with a profound knowledge of the old law, intended to abolish this anomaly of " equitable estates" of trust beneficiaries. The revisers of the Real Property Law, with great infelicity, missed the entire point of this reform. As it now stands Sec. 100 is incorrect, for the beneficiary of a trust never does take a legal estate or interest, and its possible effect is to restore the old law relating to equitable estates, if it is construed strictly. The language of the Revised Statutes should, therefore, be restored.

The following is suggested in place of the present section:

'Sec. 100. TRUSTEES OF EXPRESS TRUST TO HAVE WHOLE ESTATE. "Every express trust, valid, as such, in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees in law and equity, subject only to the execution of the trust. The persons for whose benefit the trust is created, shall take no estate or interest in the lands but may enforce the performance of the trust in equity."

The final "him" should be "them" as it was in the original section in the Revised Statutes, 1 R. S., 729, Sec. 61.

11. Sec. 103. Section 83 of the "old" Real Property Law was intended by the late revisers as the equivalent of 1 R. S. 730, Sec. 63. They so state. The old section 63 prohibited the alienation of a beneficiary's interest in any trust for the receipt of the rents and profits of land, thus including the third and fourth express trusts. But the present section confines it to the third trust purpose, thus allowing the transfer of accumulations in a way not permitted by the Revised Statutes. It is true that the beneficiary of the fourth trust is necessarily an infant, but if the interest is assignable it could probably be reached and could be bequeathed by the infant after he reaches the age of eighteen. This result was probably overlooked. In any event the Revised Statutes should be restored, as it is more consonant with the scheme of the article on Uses and Trusts. The following is suggested in place of the present section. "WHAT TRUST INTERESTED MAY BE ALIENATED. No person beneficially interested in a trust, for the receipt of the rents and profits of lands,

can assign or in any manner dispose of such interest; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created, are assignable."

12. Sec. 107. See note to Sec. 67.

The following language is suggested for insertion in Sec. 107 after the first sentence:

"But if the remaindermen, upon the determination of the trust, shall be persons the identity of whom cannot be definitely ascertained until the trust shall have determined, the court may, in its discretion, entertain the application upon proof of service of notice thereof upon all persons who shall then be presumptively entitled to the remainder or some interest therein."

For the reasons assigned in note 6 the following language is suggested for insertion at the close of Sec. 107:

"and against all remainderman whose identity cannot be definitely ascertained until the trust shall have determined."

13. Sec. 112. The following subdivisions are suggested for insertion as a part of Sec. 112;

"4. The surrogates' courts in each county shall have the same powers as the Supreme Court, in respect of the resignation, removal, and appointment of trustees, where the trust has been, or shall be, created by last will and testament.

"5. Where title to real property is vested in an executor or administrator as such, the same vests in his successor upon the issuing of letters testamentary or of administration to such successor."

As the surrogate now has, by statute, extensive powers over testamentary trustees, it is highly desirable to make this conformation of the Real Property Law, in order to complete the analogy, and, therefore, to declare that his powers are co-extensive with those of the supreme court in the respects denoted. If this addition is adopted it will be necessary to add to Sec. 182 words indicating that the surrogate may not appoint a person to execute a power in trust conferred by deed.

It has been suggested, that an executor or administrator acquiring lands, for example, by foreclosure of a mortgage, is not the trustee of an express trust within the meaning of Sec. 112, but is trustee of an implied trust which will, as at common law, descend to his heirs, or pass to his devisees upon his death. It is well that this question should be settled by statute in a declaratory form.

14. Sec. 113. Section 93 of the "old" Real Property Law was nothing but a paraphrase of L. 1893, Ch. 701. Instead of such paraphrase it would seem best to re-enact L. 1893, Ch. 701, as amended by L. 1901, Ch. 291, and then to repeal both L. 1893, Ch. 701 and L. 1901, Ch. 291. Otherwise we have two statutes on the statute book, both relating to the same thing and both phrased in slightly different language. By this course, no change whatsoever will be made in the substance of existing law.

15. Sec. 114. The following subdivision is suggested for insertion at the close of Sec. 114:

"V. Every such deed of settlement, grant, or conveyance, shall, in order to entitle it to the benefits of this section of this act, be recorded in the county or counties where the real property is situated."

It seems expedient to give publicity to such charitable gifts as are inter vivos. It conforms to the requirements of L. 1904, Ch. 692. Con

veyances not recorded are, of course, void as to bona fide purchasers under a deed first recorded. (Section 241, "old" Real Property Law.) But that section is not always adequate to compel recording in the case of a vested gift or grant to a charitable use, where the donee is in possession. 16. Sec. 116. For the reason assigned in note 6, the following is suggested for insertion between the words as the court or a justice thereof prescribes" and "The court shall appoint":

"But if the remainderman, upon the determination of a trust shall be persons whose identity cannot be definitely ascertained until the trust shall have determined, the court may in its discretion entertain the application upon proof of service of notice thereof upon all persons who shall then be presumptively entitled to the remainder or some interest therein."

17. Sec. 130. The Revised Statutes abolished powers as then existing (1 R. S. 732, Sec. 73). The Real Property Law repealed 1 R. S. 732, sec. 73. There was then no law abrogating the old law of powers, so that the language of former Sec. 110 is equivocal. Section 110 should not be reenacted in the language of the Revised Statutes, so as to cure this defect by making the abolition of the old law of powers positive and express, instead of by implication.

18. Sec. 173. As section 173 now stands, it literally requires that the consent of grantor or of a third person be a part of the instrument executing the power. Yet conveyancers commonly are of the opinion that a written consent contained in a separate instrument, if such consent is proved or acknowledged, satisfies the statute. There are no reported cases bearing expressly on this point. But as conveyancers in the city of New York customarily adopt the view denoted, it should be made clear by statute. It is sometimes extremely inconvenient to send a deed in execution of a power to Europe, or elsewhere, in order to have this consent of third persons endorsed thereon. There seems to be no good reason why the consent of third persons to the execution of a power should not be contained in a separate instrument in writing, if such instrument is duly proved or acknowledged. The other course now prescribed by the statute is very inconvenient and its necessity is actually ignored in practice by many conveyancers. This is one of the rare cases where the original provisions of the Revised Statutes relating to real property seem susceptible of improvement.

19. Sec. 182. For the reasons assigned in note 14, the following is suggested for insertion at the close of Sec. 182:

Excepting that no surrogate shall have authority, power, or jurisdiction to appoint, or designate, a person to execute a power in trust, conferred by deed."

20. Sec. 231. Subdivision 1 of this section is new. It is the remaining unrepealed part of L. 1873, Ch. 583. Both subdivisions came from the same act and belong in the same section.

21. Sec. 240. The language of this section is not disturbed, but the introduction of paragraphs numbered corresponds with the Revised Statutes and makes the sense clearer.

"

22. Sec. 271, Subd. 3. "Or" changed to of" to comply with provision in form of mortgage contained in Sec. 273.

23. Sec. 271, Subd. 4. The words "in and" omitted to comply with provisions in form of mortgage contained in Sec. 273 from which quotation here made is taken.

24. It is highly desirable that a statutory form for a certificate of acknowledgment, by attorneys in fact, should be prescribed, inasmuch as there is considerable difference of opinion in the profession as to the requisites of such certificate. The officer taking such acknowledgment cannot be expected to have any knowledge of the principal in the transaction. He commonly knows only the attorney in fact and need not know the principal. Hence it should be sufficient that he certify the identity of the person making the acknowledgment as attorney in fact. As the attorney is not necessarily described in the instrument of conveyance acknowledged, both the power of attorney and the certificate of acknowledgment should be required to be precise in their description of the attorney so as to distinguish him from persons bearing similar names. The following form is suggested:

"Sec. 332. ATTORNEYS IN FACT AND FORM OF ACKNOWLEDGMENT. Every instrument hereafter executed conferring a power upon any person, as agent or attorney in fact for another, to convey or mortgage real property in this state, or to assign, release or satisfy any lien thereon, shall describe such agent or attorney in fact, stating his occupation, if any, and also his residence or place of business.

"The certificate of acknowledgment of an instrument executed by such agent or attorney in fact shall be substantially in the following form, the blanks being properly filled:

.....

.....

to me personally known to be the person described

and

and appointed attorney in fact in and be a certain power of attorney executed by ... ... bearing date the .... day of ...... recorded in the office of the register (or clerk) of the County of on the .... day of ........ (or to be recorded in the office of the ... of the County of ... simultaneously with the within instrument) and acknowledged to me that he had executed the within (or foregoing) instrument as the act of the said.....

Signature and office of officer taking the acknowledgment."

25. Sec. 290. The only change made in this section is to separate the sentences into numbered paragraphs, according to the original of the section. (1 R. S. 736, Sec. 114; 1 R. S. 762, Secs. 36, 37, 38, 39; 1. R. S. 763, Sec. 42.) The late revisers made but one paragraph, thus obscuring the separate elements of the various definitions.

26. Sec. 299. The reference to sec. 262 in the amendment by L. 1903, Ch. 419, was incorrect. Section 261 was the section intended. This is new Sec. 312.

27. Sec. 301. This section of the old Real Property Law is left in the language in which the various amendments to L. 1896, Ch. 547, have put it, except that the indefinite article has been placed before the titles of the various functionaries mentioned, so as to make plain who is intended. In subdivisions 1 and 2, the language is made less obscure by the proposed amendments. The acts amending this section and now embodied in it were not always precisely framed.

28. Sec. 308. The changes simply conform to the correct official designations at Washington.

29. Sec. 311. The requirements of authentication "by the clerk, register, recorder or prothonotary of the county in which the officer making the original certificate resides" is very troublesome. In some cases, a notary is a state officer. In Massachusetts, for example, a notary is qualified to act in any part of the state. Many, who have their offices in the county of Suffolk (City of Boston), reside in the suburbs in adjoining counties, but they always procure certificates from the Suffolk county clerk. Under this sèction as it stands, these certificates are not good. Even in cases where the notary resides in Suffolk, the certificate usually does not state that fact and inquiry is necessary.

This section should not be re-enacted without some slight change, curing its obvious defects.

The authentication should be sufficient if made by an officer of the county in which the certificate purports to be made.

Again, as the law now stands there is no provision for an authentication of an acknowledgment by a notary in the District of Columbia. Under Sec. 47, of the General Construction Law, the District is regarded as a state, but there is no secretary of such state, no county clerk, and no court of any county therein. Certificates by the clerk of the supreme court of the District do not comply with the law.

Furthermore, it is often difficult to determine where a certificate of authentication purports to be made by a clerk of a court, whether the court is, or is not, a court of a county. Formerly the law only required that the authenticating officer should be a clerk of a court of record in the proper county. For example, in Virginia, the county courts have been recently abolished. In some cities and towns there are corporation or hustings courts, whose clerks perform the same duties as formerly were performed by the clerks of the county courts. Thus in practice difficult questions arise under this section as it now stands.

All these difficulties can be remedied by ariending subdivision 3 so that it shall require the certificate of authentication to be made by "the secretary of state of the state, or the clerk, register, recorder, or prothonotary of a county" (in the state or in the Dominion of Canada, as the case may be), "or by the clerk of any court in such state or dominion having by law a seal." The proposed changes do not alter the law in any material respects and add to, rather than detract from, the security of owners of real property. But the changes do place the section in a practical form. The following amendment is suggested:

"3. Where made by the officer of a state of the United States or of the Dominion of Canada, authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, by the secretary of state of the state, or by the clerk, register, recorder or prothonotary of [the] a county, city or parish in which the [officer making the original certificate resided, when the certificate was made] certificate purports to be made, or by the clerk of any court [of that county, city or parish] in such state or dominion having by law a seal. All acknowledgments or proofs of deeds, mortgages or other instruments relating to real property heretofore authenticated by any of the officers above referred to are confirmed saving, however, the rights of purchasers in good faith and for a valuable consideration whose conveyance shall have been duly recorded