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Encyclopedia Britannica - Main :: APO-ARN |
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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 1:- 8and until such appointment to the use of C and his heirs, B, though he has no interest
interest
elegit
marriage
marriage
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 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 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.) End of Article: APPOINTMENT, POWER OF If you wish, you can link directly to this article.
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