SECT. 1. An appointment as a deed may be considered in two ways, Definition. either as a relative and dependent instrument, springing out of and deriving its force from the Statute of Uses; or as an irrelative and independent instrument, delegating an authority to one person to act for or in behalf of another, 1 Wood's Conv. 465.

APPOINTMENTS IN EXECUTION OF A POWER.

execution of a

2. An appointment, in the first sense of the word, is an instrument Operation of an adapted for carrying into effect those particular modifications of uses appointment in which are denominated powers. Thus, suppose an estate be conveyed power. to A. and his heirs to the use of B. for life, remainder to such son as B. shall appoint, and B. appoints to the use of his first son; then the use vests in the son by the appointment, and the possession by the statute, which union of the use and possession constitutes what is termed the legal estate. The appointment operates not as a conveyance, but as the limitation of the use; the right to make this designation is termed the power; the exercise of the power is termed an appointment; the person exercising it the appointor, and the person taking under it the appointee, Butler's Co. Litt. 271, b. n. An appointment is, therefore, controlled by the pre-existing instrument on which it is founded; for, in notion of law, any one taking by virtue of an appointment is considered as taking under the instru ment giving the power; with this restriction, however, that reference must be had to the nature of the instruments in construing the validity of an appointment. If the power be executed by will, the interest of the appointee, who is considered in the light of a devisee, will be

Appointments. ambulatory and revocable like the will itself, and consequently subject to the chance of a lapse, if the appointee die in the lifetime of the appointor, D. of Marlborough v. Godolphin, 2 Ves. 61; but if made by any other instrument or deed, not in its nature revocable, the property upon which it attaches will be absolutely vested in the appointee, in like manner as if he had been named in the original conveyance. It follows likewise, from the nature of this instrument, that no limitation in an appointment will be valid, unless it would have been so, if it had been made by the conveyance creating the power. Limitations, therefore, to the unborn children of an unborn child are void, because the law would not permit such a conveyance, as tending to a perpetuity, Robinson v. Hardcastle, 2 T. R. 241. As a use cannot be limited upon a use, so as to be executed, by the statute, it follows likewise, from the nature of an appointment, which, as before observed, is a limitation to a use, that it cannot be made immediately to the use of the appointee, but it may be and usually is made upon trust to such purposes as the appointee shall direct; and courts of equity will give efficiency to the instrument where the statute falls short, by compelling the cestui que use to comply with the trust as limited, Wood's Conv. 460; But. Co. Litt. ub. sup.

Appointment, by femes covert.

Requisites of an appointment.

3. An appointment is applicable, under the sanction of the Court of Chancery, to the disposition of separate property by a feme covert, who, though disabled at common law to make a will or regular conveyance, is allowed in equity a disposing power notwithstanding her coverture, and the instrument by which she exercises this power, whether in the shape of a will or otherwise, is considered as taking effect in the nature of an appointment. And in cases where married women are intitled to separate property in the hands of trustees, their appointment will be valid, although the trustees are not parties thereto, Peacock v. Monk, 2 Ves. 190; Rippon v. Dawding, Ambl. 565.

4. In framing a deed of appointment, it is not necessary to refer to or recite the deed creating the power, if it sufficiently appear that the party intend exercising it, 6 Co. 17; Cro. Eliz. 877. For this reason, it is usual, in every well-drawn deed of appointment, for the party exercising the power to declare, that he acts not only in exercise of that particular power, but also of every other power enabling him in that behalf. This latter clause is said in some cases to have reached powers that were understood to be extinguished, 1 Sugd. Pow. 243, 6th edit. Likewise every incidental circumstance prescribed in the creation of the power ought to be complied with in the instrument by which the power is executed, ib. 264. If a writing is

required, a disposition by parol is not valid, 1 Vern. 340. If a seal Appointments. be required, a writing under hand will not be sufficient. So likewise as to signing, attestation, number and quality of witnesses, consent of particular persons, giving notice, &c., 1 Sugd. Pow. 294, 6th ed. If a deed be expressly required, it cannot be executed by will, Darligton v. Pulteney, Cowp. 260; but where a power is given generally, without any restriction as to the mode of execution, as by any writing or instrument," it may be exercised by deed or will. (As to appointments in a will, see WILLS, Pref. sect. 5, and Abstract of 7 W. 4 & 1 Vict. c. 26, Append. No. XVII.)

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cation.

5. A power of appointment includes in itself a power of revocation, Power of revoalthough no such authority be expressly reserved in the deed creating the power. But where a power is executed by deed, the donee must expressly reserve a power of revocation, in the deed executing the power, otherwise the appointment is irrevocable, even if the original power authorize the donce to appoint and revoke his appointment, Hele v. Bond, Prec. Chanc. 474; Sugd. Pow. 325, 6th ed. Where a power is executed by will, it is always revocable, although no express power of revocation is reserved, Sugd. ub. sup. Likewise a power given to one person cannot be given by him to a third person. A direction by an appointor to such a one, naming him, to appoint, limit or direct, as he shall think fit &c. will be void; for, the donce of the power having himself but a delegated authority, this would be contrary to the maxim in law, that delegatus non potest delegare, 2 Atk. 88; 2 Ves. 643. But if power be expressly reserved to be executed by the appointor and his assigns, an execution by an assignee will in such case be good, and a devisee will be a good assignee, within the words of that power, T. Jones, 110; 1 Ventr. 338; 2 Show. 57. When a man has both a power and an interest, he is made not only to exercise his power, but also to convey his interest by release (see PURCHASES). This, though not always necessary, is adopted by way of precaution, in case a power should not be well created, or be suspended or extinguished; But. Co. Litt. 271, b. n.

6. Appointments under a power may be either distributive or ex- Distributive apclusive. Where the power of the appointment is to be distributive, pointments. a certain share must be given to all; but where it is exclusive, the party appointing is at liberty to give to some to the exclusion of the rest. At law, any share, however small, will satisfy the terms of the Exclusive appointments. power; but in equity, relief was given at an early period against any appointment technically called an illusory (in the Term Reports elusory) appointment, where the share was very disproportionate to the amount of the fund to be distributed, and the number of objects

Illusory Appointment Act, 11 G. 4 & 1 W. 4, c. 46.

Appointments. to participate of it, 1 T. R. 438; 1 Vern. 67; Sugd. Pow. 494, 6th ed. But, in consequence of the difficulty of determining what ought to be deemed a substantial share, so as to render an appointment valid, and of the frequent litigation which was occasioned by this uncertainty, it is now provided, by the Illusory Appointment Act, 11 G. 4 & 1 W. 4, c. 46 (one of the five Acts brought in by Sir E. Sugden), that no appointment, which shall be made in exercise of any power or authority to appoint any property, real or personal, shall be invalid, on the ground that the share is unsubstantial, illusory or nominal; by which provision the jurisdiction of the Court of Chancery is taken away, and the doctrine of appointments is restored to its original state as at common law, Sugd. Acts, Jemmet's ed.

Effect of certain words in appointments.

Stamp duty on appointments.

7. Where it is intended to give a power of appointing a fund to several objects, or any of them exclusively, the intention ought to be expressed with precision, as, to all or every such one or more exclusively of the other or others of the objects as the donee shall appoint." It has been held, that a power to appoint amongst the children, as the donee shall think proper, did not authorize an exclusive appointment, the word " amongst" being equivalent to "all and every," Kemp v. Kemp, 5 Ves. 849. And in an early case, upon a gift to the wife, upon trust and confidence that she would not dispose thereof but for the benefit of the children, it was determined that no child could be excluded, Menzey v. Walker, Cas. Ab. Eq. 72.

8. By the 55 G. 3, c. 184, the stamp required for an appointment in execution of a power is 17. 15s.; and for every entire quantity of 1080 words over and above the first 1080 words a further progressive duty of 11. 58.

Delegation of authority.

Naked authority by whom exercised.

APPOINTMENTS DELEGATING AN AUTHORITY.

9. A delegation of an authority must be by deed, in order to shew that the person appointed actually has the power to represent his principal, and to what extent, Salk. 9. It is not however necessary for an attorney, having merely a naked authority given to him, to be a party to the deed appointing him, 2 Roll. Ab. 8, 9; Shep. Touchst. 217.

10. Few persons are excluded from exercising a naked authority, to which they are delegated, for the execution of such an authority can be attended with no prejudice or inconvenience to the parties acting under it; therefore, infants and femes covert may act as attornies, Perks. 148; Co. Litt. 52 a, and 112 a.

Distinction be

authority and

with an inte

rest.

11. The distinction between a naked authority and one coupled Appointments. with an interest, was formerly of greater importance than it is now, owing to the intervention of courts of equity. It was formerly held, tween a naked that if one of two executors empowered by a will to sell lands died, one coupled the survivor could not sell, having merely a naked authority, Co. Litt. 113 a. But equity would now compel an execution of the power in favour of those for whom it was created, 1 Ch. Ca. 139; Harg. Co. Litt. 113 a, n. 2. At common law, if one of several executors empowered to sell lands refused, the others could not sell; but by 21 Hen. 8, c. 4, the rest in that case are invested with the power of selling.

12. When a person has an authority, as an attorney, to do any act, he ought to do it in the name of the person giving the authority, 9 Co. 76; Stra. 765. Where executors are empowered to sell lands, they may do it in their own name, 9 Co. 77 a. So when a man does an act which cannot be effectual, otherwise than as done by virtue of his authority, this shall be deemed to be in execution of his authority, although done in his own name, Salk. 95, 96.

Delegated au thority how to be execute !.

13. As a delegated authority cannot be assigned or transferred by Not to be dele gated. the party receiving it to another, a deputy cannot appoint a deputy, nor a person having a power of attorney delegate his power to another, unless he be expressly authorized so to do by the deed of appointment, 2 Roll. Ab. 8; Bunb. 166. (See further, POWERS OF ATTORNEY.)

APPOINTMENTS IN EXECUTION OF A POWER.

Obs. As to the nature of such appointments, see Pref. sect. 1-8.

No. XCVI.

Appointment of a Freehold Estate to Children, to be indorsed

on a Deed of Release.

No. XCVI. Freeholds, &c.

Know all Men by these Presents That I the within named Appointment. (Husband) by force and virtue of the power and authority to

me in that behalf given or received in and by the within written indre and of all or. (a) powers and authorities enabling me

(a) As to the form of the deed, see APPOINTMENTS, Pref. sect. 4. VOL. I.

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