Page:EB1911 - Volume 02.djvu/238

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APPOMATTOX COURT HOUSE—APPORTIONMENT

nor will it relieve where a power to appoint by will is purported to be exercised by deed. A power of appointment if exercised must be exercised bona fide, otherwise it will be void as fraudulent; thus it has been frequently decided that where a father, having a limited power of appointment among his children, appoints the whole fund to an infant child, who is in no need of the appointment and who is ill, in the expectation of the death of the child whereby the fund will come to him as next of kin, such appointment is void as a fraud upon the power. Where an execution is partly fraudulent and partly valid the court will, if possible, separate the two and only revoke that which is fraudulent; if, however, the two parts are not separable the whole is void. The same rule is applied in cases of excessive execution where the power is exercised in favour of persons some of whom are and some of whom are not objects of the power. The doctrine of Election (q.v.) applies to appointments under powers, but there must be a gift of free and disposable property to the persons entitled in default of appointment.

The appointment must in law be read into the instrument creating the power in lieu of the power itself. Thus an appointor under a limited power cannot appoint to any person to whom the donor could not have appointed by reason of the rule against perpetuities, but this is not so in the case of a general power, for there the appointor is virtually owner of the property appointed. In applying this rule to appointments a distinction arises between powers created by deed and will, for a deed speaks from the date of its execution but a will from the death of the testator, and so limitations bad when the will was made may have become good when it comes into operation. Since the Conveyancing Act 1881 all powers may be released by the donees thereof, unless the power is coupled with a trust in respect of which there is a duty cast on the donee to exercise it; and this is so even though the donee gets a benefit by such release as one entitled in default of appointment, for this is not a fraud upon the power. (E. S. M. B.)

APPOMATTOX COURT HOUSE, a village of Appomattox county, Virginia, U.S.A., 25 m. E. of Lynchburg, in the S. part of the state. It is served by the Norfolk & Western railway. The village was the scene of the surrender of the Confederate Army of Northern Virginia under General Robert E. Lee to the Federal forces under Lieutenant-General U. S. Grant on Sunday the 9th of April 1865. The terms were: “the officers to give their individual paroles not to take up arms against the government of the United States until properly exchanged, and each company or regimental commander to sign a like parole for the men of their commands,” ... neither “side arms of the officers nor their private horses or baggage” to be surrendered; and, as many privates in the Confederate Army owned horses and mules, all horses and mules claimed by men in the Confederate Army to be left in their possession.

APPONYI, ALBERT, Count (1846-  ), Hungarian statesman, the most distinguished member of an ancient noble family, dating back to the 13th century, and son of the chancellor György Apponyi (1808-1899) and the accomplished and saintly Countess Julia Sztáray, was born at Pesth on the 29th of May 1846. Educated at the Jesuit seminary at Kalksburg and at the universities of Vienna and Pesth, a long foreign tour completed his curriculum, and at Paris he made the acquaintance of Montalembert, a kindred spirit, whose influence on the young Apponyi was permanent. He entered parliament in 1872 as a liberal Catholic, attaching himself at first to the Deák party; but the feudal and ultramontane traditions of his family circle profoundly modified, though they could never destroy, his popular ideals. On the break up of the Deák party he attached himself to the conservative group which followed Baron Pál Senynyey (1824-1888) and eventually became its leader. Until 1905 Count Albert was constantly in opposition, but in May of that year he consented to take office in the second Wekerle ministry. A lofty and magnetic orator, his speeches were published at Budapest in 1896; and he is the author of an interesting dissertation, Esthetics and Politics, the Artist and the Statesman (Hung.) (Budapest, 1895).

APPORTIONMENT (Fr. apportionement; Med. Lat. apportionamentum; derived from Lat. portio, share), distribution or allotment in proper shares; a term used in law in a variety of senses, (1) Sometimes it is employed roughly and with no technical meaning to indicate the distribution of a benefit (e.g. salvage or damages under the Fatal Accidents Act 1846, § 2), or liability (e.g. general average contributions, or tithe rent-charge), or the incidence of a duty (e.g. obligations as to the maintenance of highways). (2) In its strict legal interpretation apportionment falls into two classes, “apportionment in respect of estate” and “apportionment in respect of time.”

1. Apportionment in respect of Estate may result either from the act of the parties or from the operation of law. Where a lessee is evicted from, or surrenders or forfeits possession of part of the property leased to him, he becomes liable at common law to pay only a rent apportioned to the value of the interest which he still retains. So where the person entitled to the reversion of an estate assigns part of it, the right to an apportioned part of the rent incident to the whole reversion passes to his assignee. The lessee is not bound, however, by an apportionment of rent made upon the grant of part of the reversion unless it is made either with his consent or by the verdict of a jury. The assignee of the reversion of part of demised premises could not, at common law, re-enter for breach of a condition, inasmuch as a condition of re-entry in a lease could not at common law be apportioned. But this has now been altered by statute both in England (Law of Property Amendment Act 1859, § 3; Conveyancing Act 1881, § 12) and in many of the British colonies (e.g. Ontario, Rev. Stats., 1897, c. 170, § 9; Barbados, No. 12 of 1891, § 9). In the cases just mentioned there is apportionment in respect of estate by act of the parties.

Apportionment by operation of law may be brought about where by act of law a lease becomes inoperative as regards its subject-matter, or by the “act of God” (as, for instance, where part of an estate is submerged by the encroachments of the sea). To the same category belongs the apportionment of rent which takes place under various statutes (e.g. the Lands Clauses Consolidation Act 1845, § 119, when land is required for public purposes; the Agricultural Holdings Act 1883, § 41, in the case of a tenant from year to year receiving notice to quit part of a holding; and the Irish Land Act 1903, § 61, apportionment of quit and crown rents).

2. Apportionment in respect of Time.—At common law, there was no apportionment of rent in respect of time. Such apportionment was, however, in certain cases allowed in England by the Distress for Rent Act 1737, and the Apportionment Act 1834, and is now allowed generally under the Apportionment Act 1870. Under that statute (§ 2) all rents, annuities, dividends and other periodical payments in the nature of income are to be considered as accruing from day to day and to be apportionable in respect of time accordingly. It is provided, however, that the apportioned part of such rents, &c., shall only be payable or recoverable in the case of a continuing payment, when the entire portion of which it forms part itself becomes payable, and, in the case of a payment determined by re-entry, death or otherwise, only when the next entire portion would have been payable if it had not so determined (§ 3). Persons entitled to apportioned parts of rent have the same remedies for recovering them when payable as they would have had in respect of the entire rent; but a lessee is not to be liable for any apportioned part specifically. The rent is recoverable by the heir or other person who would, but for the apportionment, be entitled to the entire rent, and he holds it subject to distribution (§ 4). The Apportionment Act 1870 extends to payments not made under any instrument in writing (§ 2), but not to annual sums made payable in policies of insurance (§ 6). Apportionment under the act can be excluded by express stipulation.

The apportionment created by this statute is “apportionment in respect of time.” The cases to which it applies are mainly cases of either (A) apportionment of rent due under leases where at a time between the dates fixed for payment the lessor or lessee dies, or some other alteration in the position of parties occurs; or (B) apportionment of income between the representatives of a limited owner and the remainder-man when the limited interest