f Section 118. Special power in trust. 119. Capacity to grant a power. 120. How power may be granted. 121. Capacity to take and execute a power. 122. Capacity of married woman to take power. 123. Capacity to take a special and beneficial power. 124. Reservation of a power. 125. Effect of power to revoke. 127. When power is a lien. 128. When power is irrevocable. 129. When estate for life or years is changed into a fee. 130. Certain powers create a fee. 131. When grantee of power has absolute fee. 132. Effect of power to devise in certain cases. 134. Power subject to condition. 135. Power of life tenant to make leases 136. Effect of mortgage by grantee. 137. When a trust power is imperative. 138. Distribution when more than one beneficiary. 140. Execution of power on death of trustee. 141. When power devolves on court. 142. When creditors may compel execution of trust power. 143. Defective execution of trust power. 144. Effect of insolvent assignment. 145. How power must be executed. 146. Execution by survivors. 147. Execution of power to dispose by devise. 148. Execution of power to dispose by grant. 149. When direction by grantor does not render power void. 150. When directions by grantor need not be followed. 151. Nominal conditions may be disregarded. 152. Intent of grantor to be observed. 153. Consent of grantor or third person to execution of power. 154. When all must consent. Section 155. Omission to recite power. 156. When devise operates as an execution of the power. 158. Computation of term of suspension. 159. Capacity to take under a power. 162. Sections applicable to trust powers. Section 110. Effect of article.- Powers, as they existed by law on the thirty-first day of December, eighteen hundred and twenty-nine, have been 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. § 111. 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. § 112. 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. § 113. Division of powers.-A power, as authorized in this article, is either general or special, and either beneficial or in trust. § 114. General power.-A power is general, where it authorizes the transfer or encumbrance 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. § 115. 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 encumbrance, by a conveyance, will or charge, of any estate less than a fee. § 116. Beneficial power.-A general or special power is bene ficial, 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. § 117. 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. § 118. 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. § 119. 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. § 120. 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; or, 2. By a devise contained in a will. § 121. Capacity to take and execute a power.-A power may be vested in any person capable in law of holding, but can not be exercised by a person not capable of transferring real property. § 122. 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. § 123. 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. § 124. 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. § 125. 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 pur chasers are concerned. § 126. 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. § 127. When power is a lien.-A power is a lien or charge on the real property which it embraces, as against creditors, purchasers and encumbrancers in good faith and without notice, of or from a person having an estate in the property, only from the time the instrument containing the power is duly recorded. As against all other persons, the power is a lien from the time the instrument in which it is contained takes effect. § 128. When power is irrevocable.-A power, whether beneficial or in trust, is irrevocable, unless an authority to revoke it is granted or reversed in the instrument creating the power. § 129. When estate for life or years is changed into a fee. Where an absolute power of disposition, not accompanied by a trust, is given to the owner of a particular estate for life or for years, such estate is changed into a fee absolute in respect to the rights of creditors, purchasers and encumbrancers, but subject to any future estates limited thereon, in case the power of absolute disposition is not executed, and the property is not sold for the satisfaction of debts. § 130. Certain powers create a fee. -Where a like power of disposition is given to a person to whom no particular estate is limited, such person also takes a fee, subject to any future estates that may be limited thereon, but absolute in respect to creditors, purchasers and encumbrancers. § 131. When grantee of power has absolute fee-Where such a power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee is entitled to an absolute fee. § 132. Effect of power to devise in certain cases. Where a general and beneficial power to devise the inheritance is given to a tenant for life, or for years, such tenant is deemed to possess an absolute power of disposition within the meaning of and subject to the provisions of the last three sections. § 133. When power of disposition absolute.-Every power of 'disposition by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit, is deemed absolute. § 134. Power subject to condition.—A general and beneficial power may be created subject to a condition precedent or subsequent, and until the power becomes absolutely vested it is not subject to any provision of the last four sections. § 135. Power of life tenant to make leases.-The power of a tenant for life to make leases is not assignable as a separate interest, but is annexed to his estate, and passes by a grant of such estate unless specially excepted. If so excepted, it is extinguished. Such a power may be released by the tenant to a person entitled to an expectant estate in the property, and shall thereupon be extinguished. $136. Effect of mortgage by grantee.-A mortgage executed by a tenant for life, having a power to make leases, does not extinguish or suspend the power; but the power is bound by the mortgage in the same manner as the real property embraced therein, and the effects on the power of such lien by mortgage are: 1. That the mortgagee is entitled to an execution of the power so far as the satisfaction of his debt requires; and, 2. That any subsequent estate, created by the owner, in execution of the power, becomes subject to the mortgage as if in terms embraced therein. § 137. When a trust power is imperative.-A trust power, unless its execution or nonexecution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on |