party creating the power may impose such terms as he thinks proper for carrying it into execution, provided they do not contravene any established rule of law or equity; hence a power may be required to be executed by a deed attested by any number of witnesses, or witnesses of a particular character, as privy councillors for instance; or it may be authorized to be exercised by a single notice in writing, without requiring the attestation of a single witness; but a power cannot now, although formerly the law was otherwise, be reserved to be executed by an unattested will, or any will not regularly executed and attested, because formerly the law did not, as it does now, require that every appointment authorized to be made by will must be made by a will valid in all respects as such; and that if so valid, an appointment thus made will be effectual, notwithstanding any other terms the donor may have prescribed are not attended to; as where he directs the will to be attested by three witnesses instead of two, or witnesses of a particular description, because to hold otherwise would be in direct contravention of a rule of law established under the express words of an act of Parliament: (stat. 1 Vict. c. 26, s. 10.)

Capacity of donee of power.]-All persons of full age, not labouring under the disabilities of infancy and unsound mind, may exercise a power of appointment; hence, it may be limited to be exercised by a married woman, in the same manner as if she were sole; and whatever doctrine may formerly have prevailed with respect to the validity of such a power over the legal estate in real property, when limited to a married woman (Goodhill v. Bingham, 1 Bos. & Pull. 192), it is now clearly established that such a power is perfectly valid and effectual, and may be exercised by a married woman, whether she be covert or sole, and without any reference to her husband's consent or otherwise: (Kenyon v. Sutton, 2 Ves. 601; Harmood v. Oglander, 8 Ves. 116; Maundrell v. Maundrell, 7 Ves. 567.)

Proper instrument to be adopted for exercising a power of appointment.Where a power is limited to be exercised by a deed or instrument in writing, a deed poll is usually adopted in preference to an indenture. There is one case, however, where an indenture is a better instrument for this purpose than a deed poll, which is where a party makes an apportionment of property amongst children or other objects in exercise of a power of distributing the shares, by which means all who execute such indenture will be estopped from

disputing its validity at any future period; which estoppel could not of course have been raised upon a deed poll, which has that operation only upon the party who actually executes it, and does not affect the parties taking under it.

As to illusory appointments.]-Still this estoppel was far more important formerly than at the present day; because, previously to the passing of the act 1 Will. 4, c. 46, questions were continually arising as to whether, in case of an unequal apportionment, the appointment of the smaller shares was not merely illusory, which it was sometimes a puzzling task to determine, from the difficulty of defining the exact limit of amount at which the appointment ceased to be illusory, and began to become substantial: (Butcher v. Butcher, 9 Ves. 393.) At law, however, the appointment of any share, however small, as one shilling, for instance, was considered a substantial, and not an illusory appointment (Gibson v. Kinvern, 1 Vern. 67; Morgan v. Surman, 1 Taunt. 289); and by the statute 1 Will. 4, c. 46, the same rule is prescribed to courts of equity with respect to all appointments made subsequently to the passing of that act, and by which it is enacted, that no appointment which from and after the passing of that act shall be made in the exercise of any power or authority to appoint any property, real or personal, amongst several objects, shall be invalid or impeached in equity on the ground that an unsubstantial, illusory, or nominal share only shall be thereby appointed, or left unappointed, to devolve upon any one or more of the objects of such power, but that every such appointment shall be valid and effectual in equity, as well as at law, notwithstanding any one or more of the objects shall not thereunder, or in default of such appointment, take more than an unsubstantial, illusory, or nominal share in the property subjected to such power: (sect. 1.)

Act not to affect any provision in instrument creating power that declares the amount of the share.]—The second section of the above-mentioned act provides, however, that nothing therein contained shall affect any provision in any deed or other instrument creating any such power, which shall declare the amount of the share. And the third section provides that the act shall not give any other force to any appointment than such appointment would have had, if a substantial share of the property affected by the power had been thereby appointed, or left unappointed to devolve upon any object of such power.

[P. C.-vol. ii.]

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When an indenture is a preferable instrument to a deed poll.] -In certain other instances, however, besides the one we have just alluded to, an indenture is a preferable instrument to a deed poll. Thus, for example, where an appointment is to be made by a husband for the purpose of raising a jointure in favour of his wife, in pursuance of a power to that effect limited either by will or by deed, an indenture will be a more convenient instrument than a deed poll, particularly where a term of years is authorized to be raised and vested in trustees as a security for enforcing the due payment of such jointures. An indenture has also an additional advantage wherever trustees are to act in carrying out any of the objects of the appointment, particularly where such trusts do not take effect immediately; as in the instance above mentioned, of a jointure made for the appointor's wife, but which will not take effect until after his death; or trusts appointed to take effect after the death of parties then living, or at some future period; in which case, if the trustees are parties to and execute the deed, there will always be certain proof of their having accepted the trusts, which it might otherwise be difficult to prove if they were appointed by a deed poll, or even by an indenture, unless they executed the latter instrument.

Indenture will always be necessary where the instrument is intended to embrace anything beyond the simple act of appointment.]-And whenever the instrument is intended to embrace any other objects than the mere appointment, or is intended to be binding on any other parties than the appointor, an indenture will always be the proper instrument to adopt. Thus, where an appointment is made for the settling property under a marriage settlement, to which the intended husband and wife ought always to be named as parties, such an assurance could not be carried out properly by a deed poll. And whenever the appointee is to give or relinquish any benefit, or to perform any acts, as a consideration for the appointment being made in his favour, the appointment should always be made by indenture, to which the appointee should be made a concurring party.

When a deed poll will be the preferable instrument.]—But whenever a simple and absolute appointment is made in favour of one or more appointees, a deed poll is the best instrument, and is the one, therefore, that is usually adopted under those circumstances, whether the subject-matter of the appointment consists of real or of personal estate.

In all appointments the instrument creating the power should be recited.]-By whatever kind of instrument the appointment is made, it should recite the instrument creating the power, the terms of the power itself, by what modes of assurance it is to be exercised, and the particular forms and ceremonies (if any be prescribed) by which such power is to be executed.

Limitations antecedent to the power should be recited.]—If there are any antecedent limitations to take effect prior to the estates or interests to take effect under the appointment, it will be proper to recite the nature of such prior limitations; as, where the limitations under the powers are to take effect after the determination of a preceding life estate, or some other limited or contingent estate or interest; but it will be unnecessary to set out any of the ulterior limitations to take effect in default of appointment. It will be sufficient, in the latter instance, to state simply, that in default of appointment the premises were limited to certain other uses (or trusts, as the case may be) in the now reciting indenture (or will or other instrument) limited and declared: (see the form 3 Con. Prec., Part IX., No. II., clause 1, p. 123, 2nd edit.) Or the limitations may be very shortly referred to; as, for example, where a tenant for life has a power of jointuring limited to him under limitations in strict settlement, in which case it will be sufficient to recite that by a certain instrument, setting out the date and nature of such instrument, the settled property was limited to the appointor for life," with divers limitations over after his decease," but with a proviso enabling him to make a jointure upon any woman he might marry: (see the form 3 Con. Prec., Part IX., No. I., clause 2, p. 116, 2nd edit.)

Usual practice to recite desire to exercise power.]—It is also a common practice to recite the desire to exercise the power of appointment, and at the same time to name the particular objects in favour of whom the appointment is to be made; to which is sometimes added the particular manner in which such power is intended to be exercised; as, for instance, in the case of a husband intending to exercise a power of jointuring in favour of his wife by creating a rent-charge to arise out of real estate, and limiting a term of years as a further security for the payment of the same, when it is a common practice to recite the intention to create such rent-charge, and to limit such term accordingly: (see the form 3 Con. Prec., Part IX., No. I., clause 3, p. 117, 2nd edit.)

How clause of appointment should be penned.]—In the clause executing the power, it will always be proper to state that the appointment is made in exercise of the power limited by the instrument creating it, setting out at the same time the particular kind of instrument, as deed, will, or other instrument, as the case may be; and in the actual appointment, it will be correct to mention the name of the instrument by which it is made, using the same terms as are applied to it in the instrument creating the power; and if it is to be executed and attested in any particular manner, as by two, three, or any other specified number of witnesses, it will be correct to state the appointment to have been made and executed and attested accordingly: (see the form 3 Con. Prec., Part IX., No. I., p. 117, in notis, 2nd edit.) This is done for the purpose of showing upon the face of the instrument of appointment that all the terms of the power have been strictly complied with; but such statements are not essential to the validity of the appointment, for if the terms of the power are in reality complied with, it will be sufficient, whether it be so stated, or whether the instrument of appointment is altogether silent upon the subject.

Appointments for raising portions for younger children.]— Where an appointment is made in pursuance of a power to raise portions for younger children, the proper way to pen the instrument is first to recite the instrument creating the power in the way we have already pointed out, and therein to set out clearly the particular clause by which the power is limited (see the form 3 Con. Prec., Part IX., No. IV., clause 1, p. 126, 2nd edit.); next, to recite how many children there are who are at present objects of the power, and which of such children it is intended to make the appointment in favour of. The appointment of the portion or portions, as the case may be, is then made, and the trustees under the instrument creating the power are authorized to levy and raise the same in accordance with the powers and in pursuance of the trusts thereof, and by virtue of the appointment made by the present instrument. To these clauses is usually added a proviso that the appointment thereby made is not to prevent any further appointment to appointee, or to preclude him from taking his share in the residue: (see the form 3 Con. Prec., Part IX., No. IV., pp. 126, 127, 2nd edit.)

Appointment of a jointure.]-Where an appointment is made to secure a jointure to a wife, after reciting the instru