TITLE XIV, CHAPTER 64. Estate of tenant for life, &c., when changed into a fee. Certain powers create a fee, &c. Ib. Effect of power to devise the in heritance in certain cases. What powers to by any trust, shall be given to the owner of a particular estate, for life or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be executed, or the lands should not be sold for the satisfaction of debts. SEC. 10. When a like power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee, subject to any future estates that may be limited thereon, but absolute in respect to creditors and purchasers. SEC. 11. In all cases where such power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee. SEC. 12. When a general and beneficial power to devise the inheritance, shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning, and subject to the provisions of the three last preceding sections. SEC. 13. Every power of disposition shall be deemed absolute, by be deemed abso- means of which the grantee is enabled, in his life time, to dispose of the entire fee for his own benefit. lute. Power to revoke. Special and ben. eficial powers, who may take. Power to make SEC. 14. When the grantor in any conveyance, shall reserve to himself, 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 concered. SEC. 15. A special and beneficial power may be granted, 1. To a married woman, to dispose, during the marriage, and without the consent of her husband, of any estate less than a fee, belonging 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. SEC. 16. The power of a tenant for life to make leases, is not assignleases by tenant able as a separate interest, and will pass, unless specially excepted, by any conveyance of such estate; and if specially excepted in any such conveyance, it is extinguished. for life. Release of such power. Mortgage by party having power to lease, &c. Effect of mortgage on power. Future beneficial powers. SEC. 17. Such power may be released by the tenant to any person entitled to an expectant estate in the lands, and shall thereupon be extinguished. SEC. 18. A mortgage executed by a tenant for life 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 lands embraced therein. SEC. 19. The effects of such a lien by mortgage on the power are, 1. That the mortgagee is entitled, in equity, to an execution of the 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. SEC. 20. No beneficial power, general or special, hereafter to be created, other than such as are enumerated and defined in the preceding section (sections) of this chapter, shall be valid. SEC. 21. Every special and beneficial power is liable in equity to ers liable to cre- the claims of creditors, in the same manner as other interests that Beneficial pow. ditors. cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled. TITLE XIV. CHAPTER 64. SEC. 22. A general power is in trust when any person or class of General powers, persons, other than the grantee of such power, is designated as enti- when in trust. tled to the proceeds, or any portion of the proceeds or other benefits to arise from the alienation of the lands, according to the power. SEC. 23. A special power is in trust, 1. When the disposition which it authorizes, is limited to be made to any particular person or class of persons, other than the grantee of such power: 2. When any person or class of persons, other than the grantee, is entitled to any benefit from the disposition or charge authorized by the power. Special powers, when in trust. SEC. 24. Every trust power, unless its execution or non-execution Trust powers, is made expressly to depend on the will of the grantee, is imperative, imperative. and imposes a duty on the grantee, the performance of which may be compelled in equity for the benefit of the parties interested. selection. SEC. 25. A trust power does not cease to be imperative when the Effect of right of grantee has the right to select any, and exclude others of the persons designated as the objects of the trust. cases. SEC. 26. When a disposition under a power is directed to be made Construction of to, or among, or between several persons, without any specification of powers in certain the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion. SEC. 27. But when the terms of the power import that the estate or Ib. 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 others. ers. Sec. 28. If the trustee of a power, with the right of selection, shall When chancery die leaving the power unexecuted, its execution shall be decreed in to execute pow the court of chancery for the benefit equally of all the persons designated as objects of the trust. SEC. 29. When a power in trust is created by will, and the testator Ib. has omitted to designate by whom the power is to be executed, its execution shall devolve on the court of chancery. certain sections SEC. 30. The provisions contained in the next preceding chapter, Application of from section twenty-two to section twenty-seven, both inclusive, in re- of preceding lation to express trusts and trustees, shall apply equally to powers in chapter trust, and the grantees of such powers. SEC. 31. The execution, in whole or in part, of any trust power, Execution of may be decreed in chancery for the benefit of the creditors or assign- trust power when compelied ees of any person entitled as one of the objects of the trust to compel by creditors, &c. its execution, when the interest of the objects of such trust is assignable. fected by cer SEC. 32. Every beneficial power, and the interest of every person Beneficial powentitled to compel the execution of a trust power, shall pass to the era, &c., how afassignees of the estate and effects of the person in whom such pow-tain assignments. er or interest is vested, under any general assignment of the estate and effects of such person for the benefit of creditors, made pursuant to law. SEC. 33. The grautor in any conveyance may reserve to himself Reservation of any power, beneficial or in trust, which he might lawfully grant to powers in con. another; and every power so reserved, shall be subject to the provi- veyances, TITLE XIV. CHAPTER 64. How powers to be granted. Recording pow. ere, effect of. When powers irrevocable. In whom powers sions of this chapter, in the same manner as if granted to another. SEC. 34. A power may be granted, 1. By a suitable clause contained in the conveyance of some estate, in the lands to which the power relates: 2. By a devise contained in a last will and testament. SEC. 35. 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 recorded; but as against all other persons, the power shall be a lien from the time the instrument in which it is contained shall take effect. SEC. 36. Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it is reserved or granted in the instrument creating the power. SEC. 37. A power may be vested in any person capable in law of may be vested, holding lands, but cannot be executed by any person not capable of aliening lands holden by such person, except in the single case mentioned in the next section. Married women. Execution of power by survi vors. 2 Paige, 197. How executed. Instruments deemed convey ances. Execution of SEC. 38. A married woman may execute a power during her marriage, by grant or devise, as may be authorized by the power, without the concurrence of her husband, unless by the terms of the power, its execution by her during marriage, is expressly or impliedly prohibited; but no power vested in a married woman during her infancy, can be exercised by her, until she attains her full age. SEC. 39. When a power is vested in several persons, all must unite in its execution; but if previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors. SEC. 40. No power can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner. SEC. 41. Every instrument, except a will, made in execution of a whether it be a power of revocation or otherwise, shall be power, deemed a conveyance within the meaning and subject to the provisions of the next succeeding chapter. SEC. 42. When a power of disposition is confined to a disposition power to dispose by devise or will, the instrument must be a will duly executed according to the provisions of law relating to wills of real and personal by devise. Execution of estate. SEC. 43. When a power is confined to a disposition by grant, it power to dispose cannot be executed by will, although the disposition is not intended to take effect until after the death of the party in whom the power is vested. by grant. How grant to be acknowledged SEC. 44. If a married woman execute a power by grant, such by married wo grant shall be acknowledged by her on a private examination in the manner prescribed in the next succeeding chapter, in relation to conveyances by married women, and shall not be valid unless so acknowledged. men. Directions by grantor. SEC. 45. When the grantor of a power shall have directed or authorized it to be executed by an instrument not sufficient to pass the estate, such power shall not be void, but its execution shall be governed by the rules prescribed in this chapter, TITLE XIV. CHAPTER 64. SEC. 46. When the grantor shall have directed any formalties to be used in the execution of a power, in addition to those which would be sufficient by law to pass the estate, the observance of such addi- . tional formalities shall not be necessary to a valid execution of the power. SEC. 47. When 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. Nominal condi tions. SEC. 48. With the exceptions contained in the preceding sections, When directions the intentions of the grantor of a power, as to the mode, time and of grantor to be conditions of its execution shall be observed, subject to the power of a court of chancery to supply a defective execution, in the cases hereinafter provided. observed. person to execu SEC. 49. When the consent of a third person to the execution of the power is requisite, such consent shall be expressed in the instru- Consent of third ment by which the power is executed, or shall be certified in writing tion of power. thereon; and 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. SEC. 50. No disposition, by virtue of a power, shall be void in law Certain disposior equity, on the ground that it is more extensive than was authorized tions not void. by the power; but every estate or interest so created, so far as embraced by the terms of the power, shall be good and valid. SEC. 51. Every instrument executed by the grantee of a power, Omission to reconveying an estate or creating a charge which such grantee is autho- cite power. rized by the power to convey or create, but which he 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. SEC. 52. Instruments in execution of a power are affected by fraud, both in law and equity, in the same manner as conveyances by own ers or trustees. Fraud. &c. SEC. 53. Lands embraced in a power to devise, shall pass by a will, Power to de vise purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear expressly, or by necessary implication. to be advancements. SEC. 54. Every estate or interest given by a parent to a descendant Certain estates by virtue of a beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendant, to the same extent, and under the same circumstances that a gift of real or personal estate would be deemed an advancement. time of suspen SEC. 55. The period during which the absolute right of alienation may be suspended by any instrument in execution of a power, shall be Computation of computed from the time of the creation of the power, and not from sion. the date of such instrument. SEC. 56. No estate or interest can be given or limited to any per- who may not son, by an instrument in execution of a power, which such person take un ler pow would not have been capable of taking, under the instrument by which the power was granted. ers. SEC. 57 When a married woman, entitled to an estate in fee, shall Married women, be authorized by a power to dispose of such estate during her mar- their authority, &c. TITLE XIV; riage, she may, by virtue of such power, create any estate which she CHAPTER 65. Defective exccutions. Ib. mortgages. might create if unmarried. SEC. 58. When the execution of a power in trust shall be defective, in whole or in part, under the provisions of this chapter, its proper execution may be decreed in equity, in favor of the persons designated as the objects of the trust. SEC. 59. Purchasers for a valuable consideration, claiming under a 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. SEC. 60. When a power to sell lands shall be given to the grantee, Powers to sell on in any mortgage or other conveyance intended to secure the payment of money, the power shall be deemed a part of the security, and shall vest in, and may be executed by any person, who by assignment or otherwise shall become entitled to the money so secured to be paid. SEC. 61. The provisions of this chapter shall not extend to a simple power of attorney, to convey lands in the name, and for the benefit of the owner. Application of this chapter. Terms "grantor "grantee of a SEC. 62. The term " grantor of a power," is used in this chapter as of a power," and designating the person by whom a power is created, whether by power," defined. grant or devise; and the term "grantee of a power," is used as designating the person in whom a power is vested, whether by grant, devise, or reservation. Conveyance of land may be made by deed. 1840, p. 166. Conveyance by husband and wife. CHAPTER 65. OF ALIENATION BY DEED, AND THE PROOF AND RECORDING OF CONVEY- SECTION 1. Conveyances of lands, or of any estate or interest therein, may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved and recorded as directed in this chapter, without any other act or ceremony whatever. SEC. 2. A husband and wife may, by their joint deed, convey the real estate of the wife, in like manner as she might do by her separate 7 Mass., 19, 291. deed, if she were unmarried; but the wife shall not be bound by any covenant contained in such joint deed. 3 Pick., 521. 4 Mason, 45. Form of deed. 8 Pick., 143. Effects of certain conveyances. Covenants in conveyances. Covenants in mortgages. SEC. 3. A deed of quit claim and release, of the form in common use, shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale. SEC. 4. A conveyance made by a tenant for life or years, purporting to grant a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the estate which such tenant could lawfully convey. SEC. 5. No covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. SEC. 6. No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured; and where there shall be no express covenant for such payment contained in the |