the behalf of the sd (grantee) of the third pt whby Memorial. in conson of £ of, &c. to the sd (grantor) in hand pd by (a) A B for and in behalf of the sd (grantee) for which a receipt is signed by the sd (grantor) on the back of the sd Indre He the sd (grantor) did give grant and confirm unto the sd (grantee) and her ass for and during her natural life one annty or yrly rent-charge of £- of, &c. to be issuing and paye yrly during the life of the sd (grantee) out of All that, &c. To Hold and enjoy the sd annty of £ unto the sd (grantee) and her ass during the term of her natural life clear of all taxes and deductions whatsr paye quarterly on the days and in manner thin mentd And for the better securing paymt of the sd annty and also in conson of 5s. to the sd (grantor) by the sd (T) He the sd (grantor) did demise unto the sd (T) all and singr the thnbefe mentd messes or tents lds and preses thby chagd with the sd annty To hold the sd preses thby demised unto the sd (T) his exs, &c. from the day next befe the day of the date thof for the term of 99 yrs if the sd (grantee) shd so long live at the yrly rent of a peppercorn only if lfully demanded subject to redemption upon the due paymt of the sd annty to the sd (grantee) in manner thin mentd the exon of which indre whof this is a memorial is witnessed by (b) F I of in the co. of gent. and I C of in the co. of gent. Of a Bond and Warrant of Attorney for securing the Also of a bond or obligation bearing even date with the above-mentioned indre from the sd (grantor) to the sd (grantee) in the penal sum of £- with a condon there under written for making void the same upon payment by the sd (grantor) unto the sd (grantee) at the times and in manner in the above indre mentd the exon of which bond is witnessed by J H of, &c. in the co. of And of a (c) warrant of attorney bearing date the same day of exted by the sd (grantor) directed to certain atties therein named empowering them to enter up judgment on the above mentd boud at the suit of the sd (grantee) in his Maj. Ct of K. B. at Westminster the exon of which warrant of atty by the sd (grantor) is also witnessed by the 3d J H (u) As to the mode of payment, see Obs. 2. Release. Recitals. Annuity still subsist ing. Testatum. Further testatum. Release of an Annuity on a Repurchase. This Indre made, &c. (see p. 64) Betn (Releasor) of, &c. of the first pt (Trustee) a trustee named for and on behalf of (releasee) of, &c. of the second pt and (releasee) of, &c. of the third pt Whas by Indre, &c. [recite grant of annty, see Assignment of Annuity.] And Whas, &c. (recite warrant of attorney) And Whas the annty is still subsisting and all arrears of the same have been pd up to the day of the date of these prests as the sd (releasor) doth hby acknge And Whas the sd (releasee) hath agrd with the sd (releasor) for the repurchase of the sd annty of £ at or for the price or sum of £ and it hath been thereupon agrd that the sd annty and the secties for the same shd be reld and the sd term of 99 yrs be surrdrd in manner hnaftr mentd Now this Indre Witnesseth That in conson of, &c. to the sd (releasor) in hand pd by the sd (releasee) the rect, &c. at the instance of the sd (releasee) testified by his signing and sealing these prests He the sd (e) (releasor) Hath remised released acquitted and for ever quitted claim and by these prests Doth remise, &c. unto the sd (releasee) his hrs exs ads and ass The sd aunty secured by the sd in pt hnbefe recited indre and all arrears thof and all powers and remedies for recovering and enforcing paymt of the same And also the sd judgment entered up against the sd (releasee) at the suit of the sd (releasor) and the full bent of the same and all or. secties entered into and given for securing the sd annty And all the este right, &c. (see Assignment) of him the sd (releasor) of, in, to and out of the sd annty or, &c. and the sd judgmt and secties and evy pt thof And the sd (releasor) doth hby for himself, &c. (covt that he has done no act to incumber See Assignment) whby the sd annty or any pt thof after the exon of these prests shall continue or be paye on the sd messe, &c. or the sd preses be chagd with the same annty or any pt thof And this Indre further Witnesseth That in further pursuance of, &c. and in conson of the preses and also in conson of 5s, to the sd (T) in hand, &c. by the sd (releasee) &c. the rect, &c. He the sd (T) at the instance and by the direction of the sd (releasor) testified, &c. Hath surrendered and yielded up remised and released and by, &c. doth, &c. surrender All that messe, &c. and all and singular or. the preses which by the sd hnbefe in part recited indre were demised to the sd (T) his exs, &c. for the term, &c. determinable as afd And all the este, &c. To the intent that the sd term of 99 yrs may be merged and extinguished by way of release of right surrender or orwise cease determine and be void to all intents and purps whatsr And the sd (T) doth hby, &c. (Covt by trustee that he has done no act to incumber) In Witness, &c. APPOINTMENTS. Obs. 1. An appointment as a deed may be considered in two Definition. ways, either as a relative and dependant instrument, springing out of, and deriving its force from the Statute of Uses; or as an irrelative and independant instrument, delegating an authority to one person to act for or in behalf of another. 1 Wood's Conv. 465. 2. An appointment, in the first sense of the word, is an instrument adapted for carrying into effect those particular modifications of uses, which are denominated powers. Thus, suppose an estate be conveyed to A and his heirs to the use of B for life, remainder to such son as B shall appoint, and B appoints to the use of his first son; then the use vests in the son by the appointment, and the possession by the statute, which union of the use and possession, constitutes what is termed the legal estate. The appointment operates not as a conveyance, but as the limitation of the use; the right to make this designation is termed the power; the exercise of the power is termed an appointment; the person exercising it the appointor, and the person taking under it the appointee. Butler's Co. Litt. 271, b. n. An appointment is, therefore, controlled by the pre-existing instrument on which it is founded; for, in notion of law, any one taking by virtue of such an appointment is considered as taking under the instrument giving the power; with this restriction, however, that reference must be had to the nature of the instruments in construing the validity of an appointment. If the power be executed by will, the interest of the appointee, who is considered in the light of a devisee, will be ambulatory and revocable like the will itself, and consequently subject to the chance of a lapse, if the appointee die in the lifetime of the appointor; D. of Marlborough v. Godolphin, 2 Ves. 61; but if made by any other instrument or deed, not in its nature revocable, the property upon which it attaches will be absolutely vested in the appointee, in like manner as if he had been named in the original conveyance. It follows likewise, from the nature of this instrument, that no limitation in an appointment will be valid, unless it would have been so, if it had been made by the conveyance creating the power. Limitations, therefore, to the unborn children of an unborn child are void, because the law would not permit such a conveyance, as tending to a perpetuity; Robinson v. Hardcastle, 2 T. R. 241. As a use cannot be limited upon a use, so as to be executed by the statute, it follows likewise, from the nature of an appointment, which, as before observed, is a limitation to a use, that it cannot be made immediately to the use of the appointee, but it may be and usually is made upon trust to such purposes as the appointee shall direct; and courts of equity will give efficiency to the instrument where the statute falls short, by compelling the cestui que use to comply with the trust as limited; Wood's Conv. 460. But. Co. Litt. ub. sup. Operation of an ap pointment. 3. An appointment is applicable, under the sanction of the By feme Court of Chancery, to the disposition of separate property by a covert. femme covert; who, though disabled at common law to make a Requisites of au ap pointment. Power of will or regular conveyance, is allowed in equity a disposing power notwithstanding her coverture, and the instrument by which she exercises this power, whether in the shape of a will or otherwise, is considered as taking effect in the nature of an appointment. And in cases where married women are entitled to separate property in the hands of trustees, their appointment will be valid, although the trustees are not parties thereto; Peacock v. Monk, 2 Ves. 190. Rippon v. Dawding, Ambl. 565. 4. In framing a deed of appointment, it is not necessary to refer to, or recite the deed, creating the power, if it sufficiently appear that the party intend exercising it. 6 Co. 17. Cro. Eliz. 877. For this reason, it is usual, in every well-drawn deed of appointment, for the party exercising the power, to declare that he acts not only in exercise of that particular power, but also of every other power enabling him in that behalf. This latter clause is said in some cases to have reached powers that were understood to be extinguished. Sugd. Pow. 197, 5th ed. Likewise every incidental circumstance prescribed in the creation of the power ought to be complied with in the instrument by which the power is executed, ib. 213. If a writing is required, a disposition by parol is not valid. 1 Vern. 340. If a seal be required, a writing under hand will not be sufficient. So likewise as to signing, attestation, number and quality of witnesses, consent of particular persons, giving notice, &c. Sugd. Pow. 216, 5th ed. If a deed be expressly required, it cannot be executed by will, Darlington v. Pulteney, Cowp. 260; but where a power is given generally, without any restriction, as to the mode of execution, as by any writing or instrument,' it may be exercised by deed or will. 5. A power of appointment includes in itself a power of revoca revocation. tion, although no such authority be expressly reserved in the deed creating the power. But where a power is executed by deed, the donee must expressly reserve a power of revocation, in the deed executing the power, otherwise the appointment is irrevocable, even if the original power authorize the donce to appoint and revoke his appointment. Hele v. Bond, Prec. Chanc. 474. Sugd. Pow. 525, 5th ed. Where a power is executed by will, it is always revocable, although no express power of revocation is reserved. Sugd. ub. sup. Likewise a power given to one person cannot be given by him to a third person. A direction by an appointor to such a one, naming him to appoint, limit, or direct, as he shall think fit, &c. will be void; for, the donee of the power having himself but a delegated authority, this would be contrary to the maxim in law, that, delegatus non potest delegare. 2 Atk. 88. 2 Ves. 643. But if a power be expressly reserved to be executed by the appointor and his assigns, an execution by an assignee will in such case be good, and a devisee will be a good assignee, within the words of that power. Sir T. Jones, 110. 1 Ventr. 338. 2 Show. 57. When Appoint ments distributive. Exclusive. a man has both a power and an interest, he is made not only to exercise his power, but also to convey his interest by lease and release (see Purchase Deeds.) This, though not always necessary, is adopted by way of precaution, in case a power should not be well created, or be suspended or extinguished. But. Co. Litt. 271, b. n. 6. Appointments under a power may be either distributive or exclusive. Where the power of the appointment is to be distributive, a certain share must be given to all; but where it is exclusive, the party appointing is at liberty to give to some to the exclusion of the rest. At law, any share, however small, will satisfy the terms of the power; but in equity, relief was given at an early period against any appointment technically called an illusory (elusory) ap pointment, where the share was very disproportionate to the amount of the fund to be distributed, and the number of objects to participate of it. 1 T. R. 438. 1 Vern. 67. Sugd. Pow. 494, 5th ed. But, in consequence of the difficulty of determining what ought to be deemed a substantial share, so as to render an appointment valid, and of the frequent litigation which was occasioned by this uncertainty, it is now provided, by the Illusory Appointment Act, 1 W. IV. c. 46 (one of the five Acts brought in by Sir E. Sugden), that no appointment, which shall be made in exercise of any power or authority, to appoint any property, real or personal, shall be invalid, on the ground that the share is unsubstantial, illusory, or nominal; by which provision the jurisdiction of the Court of Chancery is taken away, and the doctrine of appointments is restored to its original state as at common law. Sugd. Acts, Jemmet's cd. 7. Where it is intended to give a power of appointing a fund to several objects, or any of them exclusively, the intention ought to be expressed with precision, as, to all or every such one or more exclusively of the other or others of the objects as the donee shall appoint.' It has been held, that a power to appoint amongst the children, as the donee shall think proper, did not authorize an exclusive appointment, the word amongst,' being equivalent to all and every.' Kemp v. Kemp, 5 Ves. 849. And in an early case, upon a gift to the wife, upon trust and confidence that she would not dispose thereof, but for the benefit of the children, it was determined that no child could be excluded. Menzey v. Walker, Cas. Ab. Eq. 72. 8. By the 55 G. III. c. 184, the stamp required for an appoint- Stamp ment in execution of a power is 17. 15s.; and for every entire quantity of 1080 words over and above the first 1080 words, a further progressive duty of 17. 58. 9. A delegation of an authority must be by deed, in order to Delegation show that the person appointed actually has the power to represent of authohis principal, and to what extent. Salk. 9. It is not, however, rity. necessary for an attorney, having merely a naked authority given to him, to be a party to the deed appointing him. 2 Roll. Ab. 8, 9. Shep. Touchst. 217. 10. Few persons are excluded from exercising a naked authority, to which they are delegated, for the execution of such an authority can be attended with no prejudice or inconvenience to the parties acting under it; therefore, infants and femes covert may act as attornies. Perks. 148. Co. Litt. 52, a. & 112, a. 11. The distinction between a naked authority and one coupled Naked auwith an interest, was formerly of greater importance than it is now, thority. owing to the intervention of courts of equity. It was formerly held, that if one of two executors, empowered by a will to sell lands died, the survivor could not sell, having merely a naked authority. Co. Litt. 113, a. But equity would now compel an execution of the power in favour of those for whom it was created. 1 Ch. Ca. 139. Harg. Co. Litt. 113, a. n. 2. At common law, if one of several executors empowered to sell lands refused, the others could not sell; but by 21 Hen. VIII. c. 4, the rest in that case are invested with the power of selling. 12. When a person has an authority, as an attorney, to do any act, he ought to do it in the name of the person giving the authority. 9 Co. 76. Stra. 765. Where executors are empowered to sell lands, they may do it in their own name. 9 Co. 77, a. So when a man does an act which cannot be effectual, otherwise than as done by virtue of his authority, this shall be deemed to be in exec: tion of his authority, although done in his own name. Salk. 95, 96. Delegated authority, how to be executed. 13. As a delegated authority cannot be assigned or transferred Not to be by the party receiving it to another, a deputy cannot appoint a delegated. |