This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Powers taking effect, as explained above, as executory limitations, and the analogous class of powers operating upon equitable interests without affecting the legal title, both of which are known as "powers of appointment," constitute a very important branch of the English law of land, and, as will appear later, they are subject to various rules which do not apply to other classes of powers. In this country, owing to the infrequency of family settlements of land, such powers are less common, though by no means unusual.
The creator of a power of appointment is known as the "donor" of the power, and the person to whom the power is given as the "donee." The exercise or execution of the power is frequently termed the "appointment," and the person in favor of whom it is exercised is termed the "appointee."
A power of appointment is ordinarily referred to as "general" if the donee is given authority thereby to appoint to any person, including himself, and is not restricted as to the estate or interest which he may appoint, while it is a "particular," "special," or "limited" power if, by the instrument creating the power, the appointment is restricted to particular per22. Goodeve, Real Prop. (4th Ed.) 302; Edwards, Prop. in. Land
172 sons, or a particular class of persons, known as "objects" of the power.23 A power has also been referred to as "special" or "particular" when it authorizes an appointment for a special purpose only, as to sell or lease land.24
Until the exercise of the power of appointment, the ownership of the land is in the creator of the power, or in his heirs or residuary devisees, or, it may be, in another person to whom he has transferred it. Frequently a transfer of the property is incorporated in the instrument by which the power is created, in the form of a gift in default of appointment.25 For instance, in the case of a gift to A for life with power to appoint the fee simple among his children, with a gift in default of appointment to B and his heirs, B has a fee simple estate, subject to be divested by the creation of another estate under the power. Had there been no gift in default of appointment, the fee simple would have continued in the creator of the power, or those claiming under him, until divested by an appointment thereunder.25
In whomsoever the ownership of the land may be pending the making of the appointment, so soon as this is made, his estate is divested pro tanto, this being a necessary result of the theory that the estates limited by the appointment ultimately take effect as if limited in the original instrument creating the power.26-28 Consequently the rights of the appointee will take priority over the lien of a judgment or execution upon the land, which has its inception during the pe23. Co. Litt. 271b, Butler's note VII, 2; Sugden, Powers 394; Far-well, Powers 8; Goodeve, Real Prop. (4th Ed.) 298.
24. Williams, Real Prop. (21st Ed.) 391; Edwards, Prop, in Land (4th Ed.) 173.
25. Post Sec. 329.
26-28. Sugden; Powers, 478; Farwell, Powers, 310; Christy v. Pulliam, 17 111. 59; Grace v. Perry, 197 Md. 550, 7 Ann. Cas. 948, 95 S. W. 875; Orender v. Call, 101 N. C. 399, 7 S. E. 878; Hicks v. Ward, 107 N. C. 392, 10 L. R. A. 821, 12 S. E. 318.
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