PRECEDENTS. I. APPOINTMENT in Fee of Part of the Estates in- TO ALL TO WHOM THESE PRESENTS SHALL COME, [appointor], of &c., sends greeting. WHEREAS under or by Recital of virtue of the will of [testator], of &c., deceased, dated the will creating the power (a) day of -, 18-, and proved on the day of 18-, in the Principal Registry of the Probate Division of her Majesty's High Court of Justice, the messuage and hereditaments, hereinafter described and expressed to be hereby appointed, stand limited to the use of the said [appointor] and of [wife] his wife, successively during their respective lives, with remainder to such uses as the said [appointor] shall by deed or will appoint, with remainders over as in the said will is mentioned. NOW THESE Testatum. PRESENTS WITNESS, that the said [appointor], in exercise of the power reserved to him by the said will, and of all other powers enabling him in this behalf, hereby Appointment appoints that ALL THAT messuage, &c., situate, &c., being of a power. in pursuance part of the hereditaments by the said will subjected to the appointment of the said [appointor], with their appurte- Parcels. nances, shall henceforth go, remain, and be To THE USE of the To the use of said [appointee], his heirs and assigns; Subject nevertheless appointee in (a) Where a deed of appointment conveys an estate in fee or Rentals. any lesser estate in land, or otherwise affects the title to land, the instrument creating the power, and other subsequent circumstances affecting the property should be recited, so as hereafter to render the appointment capable of being conveniently made a root of title. In other cases appointments may sometimes be made by indorsement or by supplemental deed, as to which see post, p. 778, note (d). a use. (b) An appointment is merely a right to limit a use. The Appointment appointment must, therefore, be made to the use of the person a limitation of intended to take directly, and without the interposition of a grantee to uses, otherwise the grantee will take the first use under the original estate, and thus the legal estate will vest in him. See Sugd. Pow. 190. and without prejudice to the several estates for life of the said [appointor], and [wife], his wife respectively, in the hereditaments and premises hereby appointed. IN WITNESS, &c. Exordium. Recital of settlement II. APPOINTMENT by a Father and Eldest Son, where Lands were limited to such Uses as they should jointly appoint, with Remainders over; that, in case of the Eldest Son's Death, and a Failure of his Issue Male in the Father's Lifetime, the Lands shall (subject to any joint Appointment made or to be made by them) be, from that Son's Death and Failure of his Issue Male, To sUCH USES as the Father and his second Son (surviving the Eldest Son) shall APPOINT (c). TO ALL TO WHOM THESE PRESENTS SHALL COME, The Most Noble G., Marquis of P. and Earl of B., &c., and the Right Honourable C. K., commonly called Earl of B., eldest son of the said Marquis of P., send greeting. WHEREAS day of whereby lands by virtue of an indenture dated the were limited; and expressed to be made between the said G., Marquis of A person having a power to appoint to uses as ano ther person fect out of the (c) On a point similar to the above, Lord St. Leonards observes: "In a preceding page I put the case of an estate being conveyed to such uses as A. shall appoint, and of his desire to convey the uses may ap- estate as B. shall appoint. Perhaps there is no conveyancer to point to such whom, in the early part of his professional life, a doubt has not presented itself in regard to the validity of such an appointment. shall appoint, Two objections have been made to it, which have come within which uses my observation: the one, that it is contrary to a known prinwill take efciple, that a power cannot be delegated; and the other, that it is a new attempt at a perpetuity. But these objections are easily answered. As to the first, the rule that a power cannot be delegated, is not a general inflexible rule, but is simply a regulation, that a confidence reposed in one, cannot by him be delegated to another. This rule, therefore, is inapplicable to the case before us; for no confidence was reposed in A., but the estate was, merely for his own convenience, conveyed to such uses generally as he should appoint. In regard to the second objection, the limitation has no greater tendency to a perpetuity than a simple conveyance in fee. Under the power in question the donee may tie up the estate for exactly the same period, but not longer, than he could were he seised in fee:" Sugd. Pow. 195. II. To such Uses as Others shall Appoint. the father for father and son remainder to male; P., of the first part, the said Earl of B., of the second part; and [trustees], of the third part; All those, &c. [parcels], were (subject to certain charges mentioned in the same. indenture), conveyed and assured To the use of the said G., To the use of Marquis of P., for life; with remainder to such uses as they life;" the said Marquis of P., and Earl of B., during their joint remainder to lives should by deed from time to time jointly appoint: And such uses as in default of such appointment To the use of the said Earl of should jointly appoint; with B. for his life, with remainder to the use of his first and remainder other sons successively in tail male; with remainder To the use over. of the Honourable F. K., commonly called Lord F. K., younger and use of and in default, son of said Marquis of P., for his life, with remainder to the use the son in tail male; of his first and other sons successively in tail male, [&c.]; with remainder To the use of the said Marquis of P. in fee-simple: the use of his AND WHEREAS the said Marquis of P. has requested the said brother in tail Earl of B. to join in appointing the said manor, heredita- remainder to ments, and premises comprised in the said indenture for the the use of the father in fee. purposes and in manner hereinafter appearing, whereto the said Earl of B. has consented. NOW THESE PRESENTS Recital of father's request WITNESS, that in pursuance of the said agreement, and that son would for effectuating the purposes aforesaid, The said Marquis of join in appointing the P. and Earl of B., in exercise of the power reserved to them lands. in the said indenture as hereinbefore mentioned, and by Testatum. virtue of all other powers enabling them in this behalf, do, of father and Appointment and each of them does, hereby appoint, That in case the said son, Earl of B. should die during the lifetime of the said Marquis that in case of son's death, of P. without issue male, or leaving issue male, and such issue and a failure should fail during such lifetime, ALL and singular the manor male in faor lordship, advowsons, messuages, lands, hereditaments, and ther's lifepremises comprised in the said indenture, shall (subject to any parcels appointment or appointments which has or have been, or may shall (subject hereafter be made thereof, or of any part thereof, by the said to any joint appointment) Marquis of P. and Earl of B. in exercise of the power to be, them for that purpose given by the said indenture), go, from son's remain and be, To THE USE of such person and persons, and for such estate and estates, or for such intents and purposes, and with, under, and subject to such powers, provisoes, limitations, and conditions, and charged and chargeable with such sum and sums of money, either annual or in gross, as by deed apthe said Marquis of P. and Lord F. K. (in case they shall point: survive the said Earl of B.), shall from time to time, by deed of his issue time, death, and failure of his second survi ving son shall jointly appoint; And that in default of, and until such and in default Uses as Others shall Appoint. of such appointment, II. To such appointment, and in case any such should be made, when and as the estates thereby to be limited shall respectively end and determine, and as to such parts of the said premises of which there shall be no such appointment, To such and the same uses, upon such and the same trusts, and for such and the same intents and purposes, as are expressed and declared of and concerning the said manor, hereditaments and premises, in and by the said indenture. to the uses de clared in the bargain and sale. IN WITNESS, &c. Annexes and deeds. III. APPOINTMENT of a JOINTURE under a Power contained in a Strict Settlement (by Supplemental (d) By the Conveyancing Act, 1881, s. 53, it is enacted that, supplemental "(1) A deed expressed to be supplemental to a previous deed, or directed to be read as an annex thereto, shall, as far as may be, be read and have effect as if the deed so expressed or directed were made by way of indorsement on the previous deed, or contained a full recital thereof. (2) This section applies to deeds executed either before or after the commencement of this Act." An appointment of a jointure or portion charged on or raisable out of real estate or of a reversionary share in trust funds comprised in the settlement creating the power are in effect directions to the trustees of the settlement to apply the yearly or other sum appointed for the purposes mentioned in the appointment. The deed of appointment will, therefore, in such cases, properly be retained in the custody of the same persons as hold the original settlement, and accordingly may be made by indorsement on, or by deed supplemental to the settlement. When practicable, the most convenient form of the appointment will be by indorsement (or where the original deed is in the modern "book" form by an annex actually attached thereto after execution), inasmuch as the principal deed is thereby necessarily always available for purposes of reference. The principal advantages of an annex or supplemental deed appears to be that it may be forwarded to parties at a distance for execution, without the principal deed. On the other hand, an annex or supplemental deed is liable to come into the possession of persons who do not hold the principal deed on which it depends, and a reference to which may be necessary to render it intelligible. It therefore seems, generally day of and £ III. Of Jointure. should sur supplemental [or to be read as an annex] to an indenture of settlement dated the 18-, and expressed to be made between [parties]: WITNESSETH that in consideration of the marriage lately solemnized between the said [appointor] and [wife] his wife, the said [appointor] in exercise of the power reserved to him by the said indenture, and of every other power in anywise enabling him in this behalf, hereby (subject and without prejudice Appointment by husband to the estate by the said indenture limited to the said (subject to his [father] for life, and to the raising and payment of father's life estate, and to the said sums of £and the interest the raising of several sums thereon respectively, or otherwise subject as in the same of money), indenture is mentioned), grants and appoints unto the said unto his wife, [wife] during her life, in case she should survive him the in case she said [appointor], the annual sum or yearly rent-charge of vive him, of a £ to be issuing out of, and charged upon all and charge, payyearly rentsingular the manors and hereditaments comprised in the said able out of indenture, such rent-charge to be for the jointure of the said comprised in [wife], and in bar of all dower, and freebench, and to be paid to the said [wife], by equal half-yearly payments on the day of -, and the every year, without any deduction; the first half-yearly pay- bar of dower. ment thereof to be made on such of the said days as shall first happen after the decease of the said [appointor]. PRO- This appointVIDED ALWAYS (e), that nothing herein contained shall prevent the said [appointor], from granting and appointing any further rent-charge or rent-charges to the said [wife] under the power of jointuring for that purpose reserved by the said indenture or any other such power as aforesaid. IN WITNESS, &c. day of in speaking, advisable that where the principal instrument and the consequent instrument are likely to fall into different hands, the latter should be by an independent deed, reciting the power, and all subsequent transactions affecting the property. Of course, when the power is created by will a recital of or reference to the will must be contained in the deed of appointment. (e) Whenever the husband does not exercise his power to the full extent, it is prudent to add a similar proviso to the above. manors, &c. settlement. such rentcharge to be for her jointure, and in ment not to prevent any further appointment. |