1911 Encyclopædia Britannica/Appointment, Power of
APPOINTMENT, POWER OF, in English law, an authority reserved by or limited to a person, to dispose, either wholly or partially, of real or personal property, either for his own benefit or for that of others. Thus if A settle property upon trustees to such uses as B shall by deed or will appoint and in default of and until such appointment to the use of C and his heirs, B, though he has no interest in the property, can at any time appoint the property to any one he pleases, including himself, and C’s interest which has hitherto been vested in him will be divested. In the above case A is said to be the donor, B the donee, and the persons in whose favour the appointment is exercised are called the appointees. Such powers are either general or limited. A general power is one which the appointor may exercise in favour of any person he pleases. It is obvious that such a power is very nearly equivalent to ownership, and consequently property which is the subject of a general power has been made to share the liabilities of ownership. By the Judgments Act 1838 all hereditaments over which a judgment debtor has such a power may be seized by the sheriff under a writ of elegit, and by the Bankruptcy Act 1883 similar property will vest in the trustees of a bankrupt. By the Finance Act 1894 property of which the deceased had a general power of appointment is subject to the payment of estate duty, even though the power has not been exercised. A limited power is one which can only be exercised in favour of certain specified persons or classes; such a power is frequently inserted in marriage settlements in which after life estates to the husband and wife a power is given to appoint among the children of the marriage. In such a case no appointment to any one but children of the marriage is valid. Formerly it was held that the intention of the donor of such a power was that each of the class which are the objects of the power should take some part of the fund, and from this arose the equitable doctrine of illusory appointments, by which the courts of equity set aside an appointment which was good at law on the ground that a merely nominal share had been appointed to one of the objects. The great difficulty of deciding what was a nominal or illusory share caused the passing of the Illusory Appointments Act of 1830, whereby it was enacted that no appointment should be set aside merely on the ground that a share appointed was illusory. It was still necessary, however, that some share should be appointed to each object, and consequently it was possible in the popular phrase to be “cut off with a shilling,” but now by the Powers Amendment Act 1874 the appointor is no longer obliged to appoint a share to each object of the power.
It is a general rule that every circumstance required by the instrument creating the power to accompany the execution of it must be strictly observed. Thus it might be required that the appointment should be by an instrument witnessed by four witnesses, or that the consent in writing of some third party should be signified. The general rule, however, has been modified both by statute and by the rules of equity. By the Wills Act 1837 a will made pursuant to the requirements of that statute shall be a valid execution of a power of appointment by will, notwithstanding that some additional form or solemnity shall have been required by the instrument creating the power, and by the Wills Act 1861 a will made out of the United Kingdom by a British subject according to the forms required by the law of the place where the will was made shall, as regards personal estate, be held to be well executed and admitted to probate; consequently it has been held that an appointment made by such a will is a valid exercise of the power. As regards appointments by deed the Law of Property Amendment Act 1859 enacts that a deed attested by two witnesses shall, so far as execution and attestation go, be a valid exercise of a power to appoint by deed. The courts of equity also will interfere in some cases of defective execution in order to carry out the intentions of the settlor. The principle upon which the court acts is obscure, but the rule has been thus stated:—“Whenever a man having power over an estate, whether ownership or not, in discharge of moral or natural relations, shows an intention to execute such power, the court will operate upon the conscience of the heir (or of the persons entitled in default) to make him perfect this intention.” Equity, however, only relieves against defects not of the essence of the power, such as the absence of seal or execution by will instead of deed, but where the defect is of the essence of the power, as where a consent is not obtained, equity will not assist, 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.)