OF APPOINTMENTS. AN I. As a relative or dependant affurance originating under the statute of uses; and II. As an irrelative and independent inftrument, 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 inftrument, when viewed in the light we are now to confider it, is not only effentially connected, but by which it is abfolutely supported and governed; and hence, a person taking under an appointment, is confidered, in notion of law, as taking under the power authorifing fuch appointment," in the fame manner as if his name had been inferted in Appointments in execution of powers. the inftrument 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 inftrument executing the power,) confidered together;" as, for example, if the appointment be made by deed, the eftate appointed will immediately veft in the appointee, in like manner as if he had been named in the inftrument creating the power, but if the appointment be made by will, the appointee will be confidered in all refpects as a devifee, and subject to the fame chance of lapfe, 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 difcuffed in the effay of Mr. POWELL upon that subject, (and is also attempted to be investigated in the ELements OF CONVEYANCING, to which the prefent 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 inftrument alone, viz. the instrument of Appointment, and this I shall confider, 1. With respect to its Nature and Efficacy, and 1. OF APPOINTMENTS MADE IN EXECUTION OF POWERS. 1. With Refpect 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 arifes, it is neceffary, 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 inferted in the deed by which the power to appoint was given. Hence the limitations fometimes to be found in haftily- To children, prepared marriage fettlements, 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 fame reafon, 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 alfo 4 Ib. 737, and 1 Ca. Op. 35. From the fame principle, alfo, it follows, that it is To fuch ufes an incident to an appointment to defeat or vary all limitations in the deed, creating the power to appoint, made fubfequent to the creation of the power. This may be instanced in the common limitation in marriage fettlements, in use to the husband for life, remainder to the wife for life, and, after the decease of the furvivor, to the ufe of fuch perfons for fuch eftates, and subject to fuch powers as the husband and wife fhall 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 eftate under this power in any other manner, the ufe hitherto executed in the hufband in fee, is shifted by the operation of the ftatute of uses, from him to the appointee, in whom it will vest precisely in the fame 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 poffeffion constitute what is termed the legal estate). fhall appoint, husband, &c. And hence, likewife, it follows, that an appointment can never be made to an use, for as the appointment itself transfers the ufe to the appointee, and the ftatute the poffeffion, any ulterior limitation to uses would be limiting an use upon an use, which is not executable by the statute. An executed use may, however, be limited upon truft 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 inftrument, the cestui que truft will there be compelled to take the truft as limited. Appointments 2. Of Appointments made by Feme Coverts for the Purpofe by feme coverts. of transferring their feparate Property. WHERE a feme covert poffeffes property independently of her husband, as the frequently does through the medium of trustees named for that purpose, on her marriage she is allowed in equity to exercise a difpofing power over it, notwithstanding her coverture, and the inftrument by which the exercises this power, whether it be in the shape of an appointment properly fo called, or of a will, or other inftrument, is termed and confidered as taking effect as an appointment (a). See also post. p. 10. (a) It was for a long time queftioned 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 eftate. Rippon v. Dawding, Amb. 565, as a trust estate, Wright v. Cadogan, 6 Br. Par. Ca. 156, but fuch ftipulation will, with respect to the real eftate of the wife, extend to thofe lands, &c. only which fhe poffeffed at the time of the marriage, and not to those which may have fince defcended to or been purchased by her, unless the covenant or ftipulation exprefsly refer to eftates fubfequently 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 3. Of the Mode of framing a Deed of Appointment, under the Statute of Ufes. be rented, Though a deed of appointment is a derivative inftru- Power need not ment, taking its effect, in a great measure, from the deed under which it originates, yet it is not neceffary that fuch deed should be exprefsly recited, or otherwife referred to, so that either from the inoperativeness of the inftrument, unless as an appointment, or from other circumstances, it be apparent that the inftrument was intended as an execution of the Power. See Moor, 567. Cro. Eliz. 877. Cra. Jac. 34. 6. Co. 17. Alfo 1 Atk. 441. 559. 659. But this diftinction has been taken (with reference to fuch intention) between the cafes where the power is, and to make a disposition of them, for such a difpofition would, in favour of the heir-at-law, be deemed to have been done at the instigation of the husband; in such case therefore she can convey only by fine levied on a fecret examination as to the freedom of her confent. 2 Vez. 192. With refpect to perfonal property, however, a power to difpofe of it either by deed or will, is incident to its being fettled to the wife's feparate use, without any exprefs authority being given to her to difpofe of it; and so also, with respect to perfonal property, it seems to be the better opinion, that a general covenant by the hufband previous to the marriage, that the wife fhall have liberty to difpose of it as if she were fole, will extend as well to fuch property afterwards accruing, as to that which was expressly cited in the settlement, if fuch 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, b. n. (1). See III. 4. and ibid. 342, b. n. (1), And fee alfo Pow. Effay on the learning of Powers, Paffim. and Pow. Wood "On APPOINTMENTS." |