Kissam v. . Dierkes

49 N.Y. 602, 1872 N.Y. LEXIS 212

• Court: New York Court of Appeals
• Decided: June 11, 1872
• Status: Published

Opinion

Bapallo, J.

The power authorized the trustees to sell the trust property only by and with the consent of Mrs. Howell, to be manifested by her uniting with them in the conveyance. This was a valid condition attached to the power. Mrs. Howell was thereby guarded against any sale being made without her personal sanction. Such must be deemed to have been her intention in annexing this condition to the power. Ho provision is made for the execution of the power in case of her decease. It could, therefore, only be executed in her lifetime. There is nothing in the Bevised Statutes which prohibits the annexing of such a condition, or permits it to be disregarded. Mere formalities prescribed by the grantor as to the manner of executing a power, may be dispensed with, but essential conditions cannot. Section 120, 2 B. S., 736, clearly recognizes the right of the grantor to annex conditions, and permits such only as are merely nominal, to be disregarded. This condition is not of that character. ' Section 121 expressly requires that, with the exception mentioned, the intentions of the grantor as to the conditions of the execution of a power shall be observed. Section 122 relates merely to the manner of authenticating the consent of a third party, when such consent is a condition. Whether one of the grantors of the power would come under the designation of a third party as used in that section, is not very material to the present case, though we think that the correct construction of the section would require an affirmative answer to that question if it arose. The section relates to the execution of the power and not to its creation. To a deed in execution of a power of sale, the necessary parties would be the donee of the power and his grantee. The grantor of the power would be a third party.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.