sons respectively making such request, or his, her, or their
counsel in the law, shall be reasonably advised and required,
and as shall be tendered to be done or executed.
NESS &c.

IN WIT

2. WHERE THE SEISIN AND THE USE ARE CREATED BY DISTINCT INSTRUMENTS (61).

APPOINTMENT.

No. 15.

APPOINTMENT, by the joint Donees of a Power con-
templating Specific Objects, to a Child in Fee.

To
ALL PERSONS TO WHOM THESE PRESENTS SHALL COME,
[husband], of &c., and [Christian name] his wife, send greeting.

Of uses limited by appointment, considered with reference to the

assurance cre

(61) The distribution here adopted of those assurances which raise uses by transmutation of possession, is not founded upon any substantial difference in their nature. Though the student would probably feel some difficulty at first in admitting an appointment to be an assurance under which a use arises by transmutation of possession, yet, when it is conating the seisin. sidered that the power itself is really an executory use, deriving its legal existence from the original conveyance to uses, and that the appointment merely ascertains the object or direction of such use, it will be apparent, not only that the appointment owes its efficacy to the seisin raised by transmutation of possession, but that, in legal contemplation, the appointee is in of a use limited by the very assurance which created the seisin. It is, indeed, a settled principle, that the use created by the execution of a power is to be considered, in point of construction and effect, as (from the time of the execution, Duke of Marlborough v. Godolphin, 2 Ves. sen. 61; and see Hole v. Escott, 3 Mylne & C. 187) contained in the instrument creating the power, or, more correctly speaking, in the assurance creating the seisin to serve the uses to be raised under the power-for that seisin is

- of marriage settlement, con

husband and

WHEREAS, by indentures of lease and release, bearing date RECITALS respectively the and days of, in the in the year The indenture of release, made between [husband], of the first taining a power part; the said [Christian name], the wife of the said [husband], enabling the by her then name and description of [maiden name], spinster, wife to appoint of the second part; and [trustees of settlement], of the third to all or any part; being a settlement in contemplation of the marriage of their children; the said [husband] and [Christian name], his wife, divers

one or more of

the common source of all the uses. The power itself may be created by an instrument distinct from the assurance which raises the seisin, as when land is conveyed by lease and release to A., to such uses as B. shall by deed appoint, and then B., by a subsequent deed, appoints to such uses as C. shall by deed appoint. Now, if C. appoints to the use of E., the appointee (E.) will be regarded, from the time of such appointment, as the taker of a use under the conveyance to A. Where the seisin was created by fine or recovery, the uses were necessarily declared by another instrument. So the seisin may be created by feoffment, or by lease and release, and the uses be wholly declared by a separate instrument; for such declaration would negative the resulting use. In all these instances, the assurance creating the seisin, and the instrument limiting the use, are considered as standing in the intimate relation to each other of cause and effect. Enough has been said to guard the student against inferring, from the distribution which it has been thought convenient to adopt in the text, that an appointment is a distinct species of assurance, adapted to originate uses, instead of being, what it truly is, the application or modification of a use which owes its inception to a previous assurance.

Some remarks have already been made (ante, n. 22) on the classification Appendancy of of powers, with reference more particularly to powers appendant, as for powers. example, a power of leasing given to a tenant for life. Now, such a power is nothing but a species of executory use; in other words, the fee is conveyed to the use (among other uses) of such person as the tenant for life shall nominate to be the lessee for a certain term of years upon certain conditions, and this use is served out of the seisin of the fee in precedence of the estate of the tenant for life, but to whose estate it is yet said to be appendant.

A power may be distinguished from other contingent and executory uses, as being an option rather than a limitation, as depending on the exercise of a discretion at a future time. (3 Mylne & Cr. 193). The distinction, however, does not appear to be very substantial, when it is considered that a use limited to A., if B. shall return from Rome, is to arise only on the performance of an act which it is in the discretion of B. to perform or not; such a use is, in truth, a power to be exercised by the act of returning, instead of the act of executing a legal instrument.

Distinction between powers and other uses, whether substantial.

-that the marriage was solemnized;

-that there is issue, an eldest son and

manors, messuages, lands, tenements, and hereditaments, situate at, in the county of, therein described, with their appurtenances, were limited, from and after the solemnization of the said marriage, To the use of the said [husband] and his assigns for his life, without impeachment of waste, with remainder to the use of the said [trustees], and their heirs, during the life of the said [husband], upon trust to preserve the contingent remainders thereinafter limited, and after the decease of the said [husband], to certain uses, for securing to the said [Christian name], the wife of the said [husband], a yearly rent-charge of £- for her life for her jointure, and

subject thereto, To the use of all or any one or more of the children or more remote issue of the said marriage, (such issue to be born in the lifetime of the said [husband] and [Christian name] his wife, or one of them), for such estate or estates, in such shares, subject to such restrictions and limitations, and in such manner as the said [husband] and [Christian name], his wife, by any deed or deeds, revocable or irrevocable, to be executed by them in the presence of and to be attested by two or more witnesses, should direct, limit, or appoint; And in default of such direction, limitation, or appointment, to certain ulterior uses. AND WHEREAS the said marriage was solemnized in the parish church of

,

in the year

on the day of AND WHEREAS there is issue now

living of the said marriage an eldest son, (namely), [name

younger child- of son], who was baptized at

ren; -that the

power has not been exercised.

TESTATUM.

Operative words.

on the day of in the year , and several younger children. AND WHEREAS the said [husband] and [Christian name], his wife, have not exercised the aforesaid power of appointment given to them by the said recited indentures: Now THESE PRESENTS WITNESS, that the said [husband] and [Christian name], his wife, in execution of the aforesaid power given to them by the said recited indentures, and of every other power hereunto enabling them, or either of them, Do and each of them Doth irrevocably direct, limit, and appoint, that all the manors, messuages, lands, tenements, and hereditaments comprised in the said recited indenture of release, or now subject to the subsisting uses thereof, with their rights, members, and appurtenances, shall, from and after the determination of such of the limitations, and subject to such of the powers contained

in the same indenture, as are subsisting and antecedent in point of effect to the aforesaid power, remain and be, To THE USE of the said [eldest son], his heirs and assigns for ever. IN WITNESS &c.

No. 16.

APPOINTMENT by the sole Donee of a General Power,
to Uses to prevent Dower in Favour of a Pur-

chaser.

THIS INDENTURE, made the —

day of

in the

year of our Lord, BETWEEN [appointor], of &c., of the one Parties. part; [purchaser], of &c., of the second part; and [trustee for purchaser to prevent dower], of the third part. WHEREAS, by RECITALS virtue of indentures of lease and of appointment and release, bearing date respectively the and days of

in

of convey

ance to such uses as the ven

dor shall appoint;

the year, the indenture of appointment and release being made between [names of parties], the hereditaments hereinafter described now stand limited To the use of such persons, for such estates, intents, and purposes, in such shares and in such manner as the said [appointor] shall, by any deed or deeds, to be executed by him in the presence of and to be attested by two or more witnesses, direct, limit, or appoint; AND WHEREAS —of contract the said [appointor] has contracted with the said [purchaser] for sale. for the sale to him of the fee-simple in possession of the said hereditaments, at the price of £- : NOW THIS INDENTURE TESTATUM. WITNESSETH, that, in pursuance of the said contract, and in consideration of the sum of £ of lawful British money paid by the said [purchaser] to the said [appointor], at or before the execution of these presents, the receipt of which sum the said [appointor] hereby acknowledges, and from the same sum and every part thereof hereby acquits and discharges the said [appointee], his heirs, executors, administrators, and assigns, The said [appointor], by virtue and in execution of the aforesaid power or authority given to him by the said recited indentures, and of every other power or authority enabling

Operative words. Parcels.

USES.

him in this behalf, Doth direct, limit, and appoint, That all [parcels] (62), Together with the appurtenances thereunto belonging, shall henceforth remain and be To THE USES following: namely, To such uses and in such manner as the said [purchaser] shall at any time, or from time to time, by any deed or deeds appoint; and in default of such appointment, To the use of the said [purchaser] and his assigns, during the term of his natural life, without impeachment for any manner of waste; and immediately after the determination of that estate by any means in his lifetime, To the use of the said [trustee], his executors and administrators, during the life of the said [purchaser], In trust for the said [purchaser] and his assigns; And immediately after the determination of the said estate hereby limited to the said [trustee], his executors and administrators, To the use of the said [purchaser] (63), his heirs and assigns for ever. And the said [appointor], for himself, his heirs, executors, and administrators, hereby covenants with the said [purchaser], his appointees, heirs, and assigns, that, notwithstanding any act, matter, or thing done or permitted by the said [appointor] to the contrary, the said recited power is valid, subsisting, and unexecuted, and the said [appointor] has in himself good right by virtue thereof to appoint by these presents the said hereditaments and premises, with their appurtenances, to the uses and in manner aforesaid; -for quiet en- And also, that the said hereditaments and premises, with their joyment; appurtenances, and the rents and profits thereof, shall or may, at all times hereafter, be quietly held, received, and enjoyed accordingly, without any eviction, interruption, or denial from or by the said [appointor], or any person or persons rightfully -for freedom claiming or to claim through, under, or in trust for him; Free from, or by the said [appointor], his heirs, executors, or ad

Covenants by appointor;

-for right to appoint;

from incum

brances;

Of the parcels,

&c., in appoint

ments.

(62) In appointments, the description of the parcels commonly forms part of the recital of the instrument creating the power; the general words are reduced to a short mention of the appurtenances; and the clauses of "all estate," &c., and "all deeds," &c., are wholly omitted. This practice is founded on the nature of the instrument which is merely a destination of the use. Strict accuracy would seem to require that the instrument should be, in terms, an appointment of the use, and not of the land; but the form given in the text, and generally adopted, is sufficiently correct and more convenient.

(63) Vide ante, Vol. 1, Chap. v. (Dower Act).