Appointment in exercise of a Power, In the case of freeholds an instrument which alters, abridges, or suspends a use limited by a prior assurance or trust creating the power which sanctions such appointment. In the case of appointments of uses of freeholds effected under the Statute of Uses the seisin to serve the appointed use was transferred by the prior assurance; the appointment vested the legal estate in the appointee, who took as though he were named in such prior assurance. After the 31st December, 1925, a power of appointment of land can only operate inequity, (English) Law of Property Act, 1925, s. 1(7).
Powers may also be reserved over personal estate, and in that case also only the equitable estate now passes; a common instance is the power of appointment among the issue usually given by a marriage settlement, by virtue of which the parents can distribute the settled funds amongst the issue in such shares as the donees of the power think fit, and the trustees will then hold the funds in trust for the appointees accordingly. A deed of appointment should recite or refer to the power, and be expressed to be in exercise of it, as manifesting the intention of the appointor, or person executing the power, and also of every other authority enabling him in that behalf, so as to guard against any misrecital of the assurance creating the power. It should likewise state than any formalities required for the execution of the power are complied with, and the attestation should set forth that such formalities were observed.
The formalities required by the creator of a power should be few and simple, for many an appointment has failed because they have not been precisely attended to. When the consent of any person is required to the exercise of a power, it is generally a condition precedent, and an execution of the power without such consent is not cured by subsequent acquisition. In all cases, legal or equitable, an appointment is deemed to be part of the instrument conferring the power for the purposes of construing the appointed limitation or trust. Sugden on Powers, 8th ed., p. 472. See (English) Preston's Act (54 Geo. 3, c. 168), as to the attestation of appointments made prior to the 30th July, 1814; and also see the (English) Wills Act, 1837 (7 Wm. 4 & 1 Vict. c. 26), s. 10, and the (English) Wills (Soldiers and Sailors) Act, 1918 (7 & 8 Geo. 5, c. 58), as to appointments exercisable by will; and see the (English) Law of Property Act, 1925, s. 159, replacing the (English) Law of Property Amendment Act,1859 (22 & 23 Vict. c. 35) s. 12, as to appointments by deed. For frauds on Powers see FRAUD and Farwellon Powers.
Illusory Appointments, by s. 158 of the (English) L. P. Act, 1925, replacing and extending the (English) Illusory Appointments Act, 1830 (11 Geo. 4, and 1 Wm. 4, c. 46), and the (English) Powers of Appointments Act, 1874 (37 & 38 Vict. c. 37), appointments of nominal shares are to be valid in equity as well as in law and are not to be invalidated on the ground that any object of the power is thereby excluded or takes an illusory share. See also FRAUDS ON POWERS.
Frauds on powers of appointment.'Where a limited power is executed for a corrupt purpose as by a bargain with any of the proper objects of the power to benefit the appointor, Hinchinbroke (Lord) v. Seymour, (1784) 1 Bro CC 395 (unless the appointor actually buys the interest of the person entitled, see Brownlow v. Meath (Earl) (1840) 2 Dr and Wal 674), or where the appointment includes a purpose or condition not contained in the power by the donor, see Hay v. Watkins (184), 3 Dr and War 339, the exercise of the power is void. The (English) Law of Property Act, 1925, s. 157, protects purchasers in good faith and making reasonable inquiry when dealing after 1925 with an appointee who is not less than 25 years of age, to the extent of the appointee's own interest as provided by the section. See Farwell, or Sugden on Powers. And see POWER.
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