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hearing the parties and fully examining into the matter, the court must make a final order upon the application. In case the application is granted, the final order must authorize the said executor, trustee, guardian of an infant, committee of a lunatic, or other person or persons acting in a fiduciary capacity, or life tenant, so entitled to receive the proceeds of such sale, to make such investment upon such terms and conditions as the court may therein prescribe.
Derivation: Real Property Law, § 94, added by L. 1901, ch. 166, § and amended by L. 1904, ch. 742, § 1.
§ 117. Commissions of trustees.
Any trustee, under a deed of trust to sell real property for the benefit of creditors, shall be entitled to and allowed upon an accounting hereafter had, the same commissions as an assignee for the benefit of creditors.
Derivation: L. 1896, ch. 249, § 1.
132. Definitions of grantor, grantee.
133. Division of powers.
134. General power.
135. Special power.
136. Beneficial power.
138. Special power in trust.
139. Capacity to grant a power.
141. Capacity to take and execute a power.
142. Capacity of married woman to take power.
143. Capacity to take a special and beneficial power.
144. Reservation of a power.
145. Effect of power to revoke.
146. Power to sell in a mortgage.
147. When power is a lien.
148. When power is irrevocable.
149. When estate for life or years is changed into a fee.
150. Certain powers create a fee.
151. When grantee of power has absolute fee.
152. Effect of power to devise in certain cases.
153. When power of disposition absolute.
154. Power subject to condition.
155. Power of life tenant to make leases.
156. Effect of mortgage by grantee.
157. When a trust power is imperative.
158. Distribution when more than one beneficiary.
159. Beneficial power subject to creditors.
160. Execution of power on death of trustee.
161. When power devolves on court.
162. When creditors may compel execution of trust power.
163. Defective execution of trust power.
164. Effect of insolvent assignment.
165. How power must be executed.
166. Execution by survivors.
167. Execution of power to dispose by devise.
168. Execution of power to dispose by grant.
169. When direction by grantor does not render power void
170. When directions by grantor need not be followed.
SECTION 171. Nominal conditions may be disregarded. 172. Intent of grantor to be observed.
173. Consent of grantor or third person to execution of power.
174. When all must consent.
175. Omission to recite power.
176. When devise operates as an execution of the power.
177. Disposition not void because too extensive.
178. Computation of term of suspension.
179. Capacity to take under a power.
180. Purchaser under defective execution.
182. Sections applicable to trust powers.
$130. Effect of article.
Powers, as they existed by law on the thirty-first day of Decemoer, eighteen hundred and twenty-nine, are abolished. Hereafter the creation, construction and execution of powers, affecting real property, shall be subject to the provisions of this article; but this article does not extend to a simple power of attorney to convey real property in the name and for the benefit of the owner.
Derivation: Real Property Law, § 110.
§ 131. Definition of a power.
A power is an authority to do an act in relation to real property, or to the creation or revocation of an estate therein, or a charge thereon, which the owner, granting or reserving the power, might himself lawfully perform.
Derivation: Real Property Law, § 111.
§ 132. Definitions of grantor, grantee.
The word "grantor" is used in this article, in connection with a power, as designating the person by whom the power is created, whether by grant or by devise; and the word "grantee " is so used as designating the person in whom the power is vested, whether by grant, devise or reservation.
Derivation: Real Property Law, § 112.
§ 133. Division of powers.
A power, as authorized in this article, is either general or special, and either beneficial or in trust.
Derivation: Real Property Law, § 113.
§ 134. General power.
A power is general, where it authorizes the transfer or incumbrance of a fee, by either a conveyance or a will of, or a charge on, the property embraced in the power, to any grantee whatever. Derivation: Real Property Law, § 114.
§ 135. Special power.
A power is special where either:
1. The persons or class of persons to whom the disposition of the property under the power is to be made are designated; or, 2. The power authorizes the transfer or incumbrance, by a conveyance, will or charge, of any estate less than a fee.
Derivation: Real Property Law, § 115.
§ 136. Beneficial power.
A general or special power is beneficial, where no person, other than the grantee, has, by the term of its creation, any interest in its execution. A beneficial power, general or special, other than one of those specified and defined in this article, is void.
Derivation: Real Property Law, § 116.
§ 137. General power in trust.
A general power is in trust, where any person or class of persons, other than the grantee of the power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from its execution.
Derivation: Real Property Law, § 117.
§ 138. Special power in trust.
A special power is in trust, where either,
1. The disposition or charge which it authorizes is limited to be made to a person or class of persons, other than the grantee of the power; or,
2. A person or class of persons, other than the grantee, is designated as entitled to any benefit, from the disposition or charge authorized by the power.
Derivation: Real Property Law, § 118.
§ 139. Capacity to grant a power.
A person is not capable of granting a power, who is not, at the same time, capable of transferring an interest in the property to which the power relates.
Derivation: Real Property Law, § 119.
140. How power may be granted.
A power may be granted either:
1. By a suitable clause, contained in an instrument sufficient to pass an estate in the real property, to which the power relates; 2. By a devise contained in a will.
Derivation: Real Property Law, § 120.
§ 141. Capacity to take and execute a power.
A power may be vested in any person capable in law of holding, but cannot be exercised by a person not capable of transferring real property.
Derivation: Real Property Law, § 121.
§ 142. Capacity of married woman to take power.
A general and beneficial power may be given to a married woman, to dispose, during her marriage, and without concurrence of her husband, of real property conveyed or devised to her in fee.
Derivation: Real Property Law, § 122.
§ 143. Capacity to take a special and beneficial power. A special and beneficial power may be granted,
1. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the property to which the power relates; or,
2. To a tenant for life, of the real property embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life; and such a power is valid to authorize a lease for that period but is void as to the excess. Derivation: Real Property Law, § 123.
8144. Reservation of a power.
The grantor in a conveyance may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another; and a power thus reserved shall be subject to the provisions of this article, in the same manner as if granted to another.
Derivation: Real Property Law, § 124.
§ 145. Effect of power to revoke.
Where the grantor in a conveyance reserves to himself for his own benefit, an absolute power of revocation, he is to be still deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned.
Derivation: Real Property Law, § 125.
§ 146. Power to sell in a mortgage.
Where a power to sell real property is given to a mortgagee, or to the grantee in any other conveyance intended to secure the payment of money, the power is 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.
Derivation: Real Property Law, § 126.