OF APPOINTMENTS. An Appointment, when confidered with reference to a fet of precedents, delineating the form of the inftrument known by that appellation, may be viewed in two distinct afpects. I. As a relative or dependant assurance originating under the statute of uses; and II. As an irrelative and independent instrument, delegating an authority, or power of acting, from a principal to his agent. In confidering the nature of the first of these species of Powers, Appointments the mind is inevitably carried to the doctrine of POWERS, with which this instrument, when viewed in the light we are now to confider it, is not only essentially connected, but by which it is absolutely supported and governed; and hence, a person taking under an appointment, is confidered, in notion of law, as taking under the power authorising such appointment, " in the fame manner as if his name had been inserted in VOL. II. B Appointments in execution of powers. the instrument itself, by which the power is created, with this distinction only, that he must take according to the natures of the power, and of the appointment, (or instrument executing the power,) confidered together;" as, for example, if the appointment be made by deed, the estate appointed will immediately vest in the appointee, in like manner as if he had been named in the instrument creating the power, but if the appointment be made by will, the appointee will be confidered in all respects as a devisee, and subject to the same chance of lapse, in case of his death in the life time of the devisor, as is incident to the ambulatory nature of a will. See Co. Lit. 80. 2 Durn. and E. Rep. 241, 251. ib. 737. But as the doctrine of powers is not only fully and ably discussed in the essay of Mr. POWELL upon that subject, (and is also attempted to be investigated in the ELEMENTS OF CONVEYANCING, to which the present Collection of Precedents is partly intended in the nature of a SUPPLEMENT,) but may more properly be introduced under a future head, I shall here confine myself to the nature and properties of the derivative instrument alone, viz. the instrument of Appointment, and this I shall consider, 1. With respect to its Nature and Efficacy, and 2. With respect to its Form. I. OF APPOINTMENTS MADE IN EXECUTION OF POWERS. 1. With Respect to the Nature and Efficacy of an Appointment under the Statute of Ufes. As to the nature and efficacy of an appointment, it is apparent from what has already been faid, that as the execution of a power of appointment is confidered as a part of the deed out of which the power arises, it is necessary, in order to the validity of an appointment, that the limitations attempted to be effectuated by it should be fuch as would be valid, had they been inserted in the deed by which the power to appoint was given. Hence the limitations sometimes to be found in hastily- To children, prepared marriage settlements, to the unborn children of &c. an unborn child, as purchasers are ineffectual. See Marlborough v. Godolphin, 2 Durn. and E. Rep. 251. So neither, for the same reason, can a power of appointment to children, be executed in favour of grandchildren, where the children themselves are yet unborn at the time of creating the power. Robinfon v. Hardcastle, 2 Durn. and E. Rep. 241. See also 4 Ib. 737, and 1 Ca. Op. 35. From the same principle, also, it follows, that it is To such uses aa husband, &c. incident to an appointment to defeat or vary all limita- shall appoint, tions in the deed, creating the power to appoint, made subsequent to the creation of the power. This may be instanced in the common limitation in marriage settlements, in use to the husband for life, remainder to the wife for life, and, after the decease of the survivor, to the ufe of fuch persons for such estates, and subject to such powers as the husband and wife shall jointly appoint, and in default of appointment, and subject thereto, to the ufe of the husband, in fee, under which limitation the use is immediately executed in the husband and wife for life, with remainder to the husband alone, in fee; but the moment that they appoint the estate under this power in any other manner, the use hitherto executed in the hufband in fee, is shifted by the operation of the statute of uses, from him to the appointee, in whom it will vest precifely in the same manner as it would have vested had a fimilar limitation been made to him in the deed creating the power to appoint. The use vesting in him by the appointment, and the poffeffion by the statute, (which union of the use and possession constitute what is termed the legal estate). And hence, likewise, it follows, that an appointment can never be made to an use, for as the appointment itself transfers the use to the appointee, and the statute the poffeffion, any ulterior limitation to uses would be limiting an use upon an use, which is notexecutable by the statute. An executed use may, however, be limited upon trust for any purposes the appointor may choose, for as trufts are under the control of courts of equity, which regard the intention of the parties more than the legal efficiency of the instrument, the cestui que truft will there be compelled to take the trust as limited. Appointments 2. Of Appointments made by Feme Coverts for the Purpose by feme coverts. of transferring their separate Property. WHERE a feme covert possesses property independently of her husband, as she frequently does through the medium of trustees named for that purpose, on her marriage she is allowed in equity to exercise a disposing power over it, notwithstanding her coverture, and the instrument by which the exercises this power, whether it be in the shape of an appointment properly so called, or of a will, or other instrument, is termed and confidered as taking effect as an appointment (a). See also post. p. 10. (a) It was for a long time questioned whether a married woman could execute a good conveyance of real estate, even though fettled to her separate use, by any other means than a power of appointment, or a fine; but it is now fettled, that any covenant entered into, or conveyance made, by her respecting her separate property, provided a stipulation be made to that purpose on her marriage, will be void in equity, and that as well where the subject of it is a legal estate. Rippon v. Dawding, Amb. 565, as a trust estate, Wright v. Cadogan, 6 Br. Par. Ca. 156, but such stipulation will, with respect to the real eftate of the wife, extend to those lands, &c. only which she poffefsed at the time of the marriage, and not to those which may have fince descended to or been purchased by her, unless the covenant or stipulation expressly refer to estates subsequently accruing, as well as to those then in her poffeffion, 2 Vez. 190, nor will the mere settling such eftates upon the wife, as a feme fole, without a power given to her to convey them, empower her te 3. Of the Mode of framing a Deed of Appointment, under the Statute of Ufes. Though a deed of appointment is a derivative instru. Power need not ment, taking its effect, in a great measure, from the deed under which it originates, yet it is not necessary that such deed should be expressly recited, or otherwise referred to, so that either from the inoperativeness of the instrument, unless as an appointment, or from other circumstances, it be apparent that the instrument was intended as an execution of the Power. See Moor, 567. Cro. Eliz. 877. Cro. Jac. 34. 6. Co. 17. Also 1 Atk. 441. 559. 659. But this distinction has been taken (with reference to fuch intention) between the cases where the power is, and be rented. to make a disposition of them, for such a disposition would, in favour of the heir-at-law, be deemed to have been done at the instigation of the husband; in such cafe therefore she can convey only by fine levied on a secret examination as to the freedom of her consent. 2 Vez. 192. With respect to perfonal property, however, a power to dispose of it either by deed or will, is incident to its being settled to the wife's separate use, without any express authority being given to her to dispose of it; and so also, with respect to personal property, it seems to be the better opinion, that a general covenant by the hufband previous to the marriage, that the wife shall have liberty to dispose of it as if she were sole, will extend as well to such property afterwards accruing, as to that which was expressly cited in the settlement, if such can be fairly inferred to have been the intention of the parties; 4 Vin. Abr. 131, pl. 8, but otherwise it should seem, where no such intention can be fairly prefumed, ib. pl. 7. See a most learned and inftructive investigation of the nature and effect of Appointments, and of the powers from which they proceed, by Mr. BUTLER. Co. Lit. 8vo. 271, 6. n. (1). See III. 4. and ibid. 342, b. n. (1). And fee also Pow. Effay on the learning of Powers, Paffim. and Pow. Wood "On APPOINTMENTS." |