APPOINTMENTS.

Powers.

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 aspects.

I. As a relative or dependant affurance originating under the ftatute of ufes; 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 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 fupported and governed; and hence, a perfon 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 the inftrument itself, by which the power is created, with this diftinction only, that he muft 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 fubject 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 alfo attempted to be inveftigated in the ELEMENTS

OF CONVEYANCING, to which the prefent Collection of Precedents was originally intended in the nature of a SUPPLEMENT,) but may more properly be introduced under a future head, I fhall here confine myself to the nature and properties of the derivative inftrument alone, viz. the inftrument of Appointment, and this I shall confider,

1. With respect to its Nature and Efficacy, and 2. With refpect to its Form.

I. OF APPOINTMENTS MADE IN EXECUTION OF POWERS.

1. With Refpect to the Nature and Efficacy of an Appointment under the flatute of Ufes.

powers.

As to the nature and efficacy of an appointment, it is Appointments apparent from what has already been faid, that as the exe- in execution of cution 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 fhould be fuch as would be valid, had they been inferted in the deed by which the power to appoint was given.

&c.

Hence the limitations fometimes to be found in haftily- To children, prepared marriage fettlements, to the unborn children of 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 unborn at the time of creating the power. Robinfon v. Hardcaftle, 2 Durn. and E. Rep. 241. See alfo 4 lb. 737, and I Ca. Op. 35.

From the fame principle, alfo, it follows, that it is To fuch ufes as incident to an appointment to defeat and vary all limita- hufband, &c. fhall appoint. tions in the deed, creating the power to appoint, made fubfequent to the creation of the power. This may be inftanced in the common limitation in marriage fettlements, to the use of the husband for life, remainder to the wife for life, and, after the decease of the furvivor, to the use of fuch perfons for fuch eftates, and fubject to fuch powers as the husband and wife fhall jointly appoint, and in default of appointment, and subject thereto, to the use of the

Appointments by teme coverts.

hufband, in fee, under which limitation the ufe 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 husband in fee, is shifted by the operation of the ftatute of ufes, from him to the appointee, in whom it will veft precifely in the fame manner as it would have vefted had a fimilar limitation been made to him in the deed creating the power to appoint. The ufe vefting in him by the appointment, and the poffeffion by the ftatute, (which union of the ufe and poffeffion conftitute what is termed the legal eftate).

And hence, likewife, it follows, that an appointment can never be made to an ufe, for as the appointment itself transfers the ufe to the appointee, and the ftatute the pofSeffion, any ulterior limitation to ufes would be limiting a ufe upon a ufe, which is not executable by the ftatute. An executed ufe may, however, be limited upon truft for any purposes the appointor may choose; for as trufts are under the controul of courts of equity, which regard the intention of the parties more than the legal efficiency of the inftrument, the ceftui que truft will there be compelled to take the truft as limited.

2. Of Appointments made by Feme Coverts for the Purpose of transferring their feparate property.

WHERE a feme covert poffeffes property independently of her husband, as fhe frequently does through the medium of trustees named for that purpose on her marriage, the is allowed in equity to exercife 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.

(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 feparate ufe, 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

3. Of the Mode of framing a Deed of Appointment, under the

Statute of Ufes.

Though a deed of appointment is a derivative inftrument, Power need not taking its effect, in a great measure, from the deed under be recited. which it originates, yet it is not neceffary that fuch deed fhould be exprefsly recited, or otherwife referred to, fo that either from the inoperativeness of the inftrument unless as an appointment, or from other circumstances, it be appa

refpecting her separate property, provided a ftipulation be made for that purpofe on her marriage, will be valid in equity, and that as well where the fubject of it is a legal eftate. Rippon v. Dawding, Amb. 565, as a truft eftate, Wright v. Cadogan, 6 Br. Par. Ca. 156, but fuch ftipulation will, with refpect to the real estate of the wife, extend to those lands, &c. only, which the 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 expressly refer to eftates fubfequently accruing,as well as to thofe then in her poffeffion, 2 Vez. 190, nor will the mere fettling fuch eftates upon the wife, as a feme fole, without a power given to her to convey them, empower her to make a difpofition of them, for fuch a difpofition would, in favour of the heir-at-law, be deemed to have been done at the inftigation of the hufband; in fuch cafe, therefore, fhe 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 separate use, without any exprefs authority being given to her to difpofe of it; and fo alfo, with refpect to perfonal property, it seems to be the better opinion, that a general covenant by the husband previous to the marriage, that the wife fhall have liberty to difpofe of it as if the were fole, will extend as well to fuch property afterwards accruing, as to that which was exprefsly mentioned in the fettlement, if fuch can be fairly inferred to have been the intention of the parties; 4 Vin. Abr.131, pl.8, but otherwise it should feem, where no fuch 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. on Powers, paffim. and Sudg. Appointments.

Difference where power recited and where not.

Rule of conftru

ment.

rent that the inftrument was intended as an execution of the Power. See Moor, 567. Cro. Eliz. 877. Cro. Jac. 34. 6. Co. 17. Allo 1 Atk. 441. 559. 659. But this diftinction has been taken (with reference to fuch intention) between the cafes where fuch power is, and where it is not recited in the deed by which it is executed, that where an estate is conveyed with a refervation of a power of appointment, and the perfon fo referving the power, executes a conveyance, which from its nature may take effect, either as operating upon the legal eftate remaining in (or rather refulting to) him, or as an execution of fuch power, and no reference be made to the deed out of which the power arises; the deed or will, will take effect out of fuch remaining or refulting eftate, and not be deemed to be an execution of the power. These pofitions may be exemplified by the common mode of conveyance to the ufe of fuch perfons, and for fuch ellates as the grantor fhall by deed or will appoint, in which cafe the ufe vefts by operation of law in the grantor as of a qualified fee, i. e. a fee fubject to be defeated by an appointment under the power, and if in this cafe the grantor limit the estate in pursuance of the power referved to himself for the purpose, it will take effect, as an estate limited by the original inftrument, or deed creating the power, and the inftrument executing the power will operate fimply as a declaration to the ufes, but if on the other hand the grantor execute a conveyance calculated to pass the land itself, without any reference to the deed creating the power, then fuch conveyance will be conftrued to pass the land and not merely the ufe as an execution of the power, for the grantor having in him both an eftate, and a power of limiting as ufe, either of which he may execute at his election, it is fair to prefume that the form pursued by him, was meant as an indication of intention to pafs his proprietary estate, in preference to limiting an ufe under the power, fee 1 Vent. 225 1 Atk. 559.

Where, however, it remains doubtful, after a full coning an appoint- fideration of all the circumftances, whether the fettler intended to execute his power, or to act as independent owner of the eftate, the rule is to confider the inftrument as a conveyance of the eflate, and not as a limitation of the ufe. See Brown and Taylor, Cro. Car. 38. And Jenkins and Keymis, 1 Ch. Ca. 103.