Online Encyclopedia

Search over 40,000 articles from the original, classic Encyclopedia Britannica, 11th Edition.

APPOINTMENT, POWER OF

Online Encyclopedia

Originally appearing in Volume V02, Page 226 of the 1911 Encyclopedia Britannica.

» Make a correction to this article.
» Add information or comments to this article.

Encyclopedia Home :: APO-ARN

Spread the word:

del.icio.us it!

See also:

APPOINTMENT, POWER OF

APPOINTMENT, See also:
POWER [WILLIAM GRATTAN] TYRONE (1797-1841)
POWER OF , in See also:

ENGLISH

English See also:

law, an authority reserved by or limited to a See also:

PERSON, OFFENCES AGAINST THE

person, to dispose, either wholly or partially, of real or See also:

PERSONAL

personal See also:

PROPERTY

property, either for his own benefit or for that of others. Thus if A See also:

settle property upon trustees to such uses as B shall by See also:

DEED (in O. Eng. dead, from the stem of the verb " to do ")

deed or will appoint and in See also:

DEFAULT (Fr. defaut, from defailler, to fail, Lat. fallere)

default of 1:- 8and until such appointment to the use of C and his heirs, B, though he has no See also:

INTEREST

interest in the property, can at any See also:

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 See also:

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 See also:

POWERS, HIRAM (1805-1873)

powers are either See also:

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 See also:

EQUIVALENT

equivalent to ownership, and consequently property which is the subject of a general power has been made to See also:

SHARE (O. Eng. scearu, chiefly in compounds, e.g. land-scearu, a share of land, from sceran to cut; cf. " shear" )

share the liabilities of ownership. By the Judgments See also:

ACT (Lat. actus, actum)

Act 1838 all hereditaments over which a See also:

JUDGMENT

judgment debtor has such a power may be seized by the See also:

SHERIFF

sheriff under a See also:

WRIT (O. Eng. gewrit, writ, from writan, to write)

writ of See also:

ELEGIT (Lat. for " he has chosen ")

elegit, and by the See also:

BANKRUPTCY (from Lat. bancus or Fr. banquet table or counter, and Lat. ruptus, broken)

Bankruptcy Act 1883 similar property will vest in the trustees of a bankrupt. By the See also:

FINANCE

Finance Act 1894 property of which the deceased had a general power of appointment is subject to the See also:

PAYMENT (Fr. paiement, from payer, to pay; Lat. pacare, to appease, pax, peace)

payment of See also:

ESTATE (through O. Fr. estat, mod. flat, from Lat. status, state, condition, position, stare, to stand)

estate See also:

DUTY (from " due," that which is owing, O. Fr. deu, dil, past participle of devoir; Lat. debere, debitum; cf. " debt ")

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 See also:

MARRIAGE

marriage settlements in which after See also:

LIFE

life estates to the See also:

HUSBAND

husband and wife a power is given to appoint among the See also:

CHILDREN, LAW RELATING TO

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 See also:

OBJECTS

objects of the power should take some See also:

PART

part of the fund, and from this arose the equitable See also:

DOCTRINE

doctrine of illusory appointments, by which the courts of See also:

EQUITY (Lat. aequitas)

equity set aside an appointment which was See also:

GOOD, JOHN MASON (1764-1827)

good at law on the ground that a merely nominal share had been appointed to one of the objects. The See also:

GREAT

great difficulty of deciding what was a nominal or illusory share caused the passing of the Illusory Appointments Act of 183o, 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 See also:

OBJECT

object, and consequently it was possible in the popular phrase to be " cut off with a See also:

SHILLING

shilling," but now by the Powers See also:

AMENDMENT (through the O. Fr. amender, to correct, from Lat. mendum, a fault)

Amendment Act 1874 the appointor is no longer obliged to appoint a share to each object of the power. It is a general See also:

RULE

rule that every circumstance required by the See also:

INSTRUMENT (Lat. instrumentum, from insincere, to build up, furnish, arrange, prepare)

instrument creating the power to accompany the See also:

EXECUTION (from Lat. ex-sequor, exsecutus, follow or carry out)

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 See also:

writing of some third party should be signified. The general rule, however, has been modified both by See also:

STATUTE

statute and by the rules of equity. By the See also:

WILLS, WILLIAM GORMAN (1828-1891)

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 See also:

FORM (Lat. forma)

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 See also:

UNITED

United See also:

KINGDOM

Kingdom by a See also:

BRITISH

British subject according to the forms required by the law of the See also:

PLACE (through Fr. from Lat. platea, street; Gr. IrAar6s, wide)

place where the will was made shall, as regards personal estate, be held to be well executed and admitted to See also:

PROBATE

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 See also:

ATTESTATION (Lat. adtestare, attestare, to bear witness, testis, a witness)

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 See also:

order to carry out the intentions of the settlor. The principle upon which the See also:

court acts is obscure, but the rule has been thus stated:—" Whenever a See also:

man having power over an estate, whether ownership or not, in See also:

DISCHARGE (adapted from the O. Fr. discharge, modern decharge, from a med. Lat. discargare, to unload, dis- and earn care, to load, cf. " charge ")

discharge of moral or natural relations, shows an intention to execute such power, the court will operate upon the See also:

conscience of the See also:

HEIR (Lat. heres, from a root meaning to grasp, seen in heres or erus, master of a house, Gr. xeip, hand, Sans. hat ana, hand)

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 See also:

ABSENCE (Lat. absentia)

absence of See also:

seal or execution by will insteld of deed, but where the defect is of the essence of the power, as where a consent is not obtained, equity will not assist, r1 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 See also:

bona fide, otherwise it will be void as fraudulent; thus it has been frequently decided that where a See also:

FATHER

father, having a limited power of appointment among his children, appoints the whole fund to an See also:

INFANT (in early forms enfaunt, enfant, through the Fr. enfant, from Lat. infans, in, not, and fans, the present participle of fari, to speak)

infant See also:

child, who is in no need of the appointment and who is See also:

ill, in the expectation of the See also:

DEATH

death of the child whereby the fund will come to him as next of See also:

KIN (0. E. cyn, a word represented in nearly all Teutonic languages, cf. Du. kunne, Dan. and Swed. kon, Goth kuni, tribe; the Teutonic base is kunya; the equivalent Aryan root gan- to beget, produce, is seen in Gr. 'yEvos, Lat. genus, cf. "kind")

kin, such appointment is void as a See also:

FRAUD (Lat. fraus, deceit)

fraud upon the power. Where an execution is partly fraudulent and partly valid the court will, if possible, See also:

SEPARATE

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 See also:

Election (q.v.) applies to appointments under powers, but there must be a See also:

GIFT (a common Teutonic word, cf. Ger. die Gift, gift, das Gift, poison, formed from the Teut. stem gab-, to give, cf. Dutch geven, Ger. geben; in O. Eng. the word appears with initial y, the guttural of later English is due to Scandinavian influence)

gift of See also:

FREE

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 See also:

REASON (Lat. ratio, through French raison)

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 See also:

BAD, BCD

bad when the will was made may have become good when it comes into operation. Since the See also:

CONVEYANCING

Conveyancing Act 1881 all powers may be released by the donees thereof, unless the power is coupled with a See also:

TRUST

trust in respect of which there is a duty See also:

CAST (from the verb meaning " to throw "; the word is Scand. in origin, cf. Dan. kaste, and Swed. kasta; " cast " in Middle Eng. took the place of the A.S. weor pan, cf. Ger. werf en)

cast on the donee to exercise it; and this is so even though the donee gets a benefit by such See also:

RELEASE (O.Fr. reles, variant of relais, from relaisser, to release, let go, Lat. relaxare)

release as one entitled in default of appointment, for this is not a fraud upon the power. (E. S. M.

End of Article: APPOINTMENT, POWER OF

Additional information and Comments

There are no comments yet for this article.

» Add information or comments to this article.

Please link directly to this article:
Highlight the code below, right click, and select "copy." Then paste it into your website, email, or other HTML.

Site content, images, and layout Copyright © 2006 - Net Industries, worldwide.
Do not copy, download, transfer, or otherwise replicate the site content in whole or in part.

Links to articles and home page are always encouraged.

[back]
APPOGGIATURA (from Ital. appoggiare, to lean upon)

[next]
APPOMATTOX COURT HOUSE