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 .
Under the doctrine of "illusory" appointments, it was formerly the rule in England that, where one had a "nonexclusive" power,-that is, a power of appointing among all the members of a class, as, for instance, to all one's children,-equity would regard an appointment of a merely nominal share to one of such class as invalid, and would require a substantial share to be given him.7 This doctrine has been repudiated by some courts in this country, it being considered that the claim of each of the objects is satisfied if there is any appointment to him, however small the share,8 while by other courts it is apparently recognized.9
Miss. 323; Moreau v. Detchemen-dy, 18 Mo. 522.
5. Hopkins v. Myall, 2 R. & M. 86; Breit v. Yeaton, 101 111. 242; Montgomery v. Agricultural Bank, 10 Sm. & M. (Miss.) 566; Justis v. English, 30 Gratt. (Va.) 565.
6. Johnson v. Bragge (1901) 1 Ch. 28; Hood v. Mackinnon (1909) 1 Ch. 476; Beatty v. Clark, 20 Cal. 11; Monzo v. Woodhouse, 185 N. Y. 295, 6 L. R. A. N. S. 746, 78 N. E. 71; Grayson v. Weddle, 63 Mo. 523.
7. Sugden, Powers, 449, 938; Butcher v. Butcher, 1 Ves. & B. 79.
8. Ingraham v. Meade, 3 Wall. Jr. 32, 13 Fed. Cas. No. 7045; Lines v. Darden, 5 Fla. 71; Hawthorn v. Ulrich, 207 111. 430, 69 N. E. 885; Graeff v. DeTurk, 44 Pa. St. 527; Lloyd v. Fritz, 235 Pa. St. 538, 84 Atl. 450; Fronty v. Godard, Bailey Eq. (S. C.) 517.
9. Hatchett v. Hatchett, 103 Ala. 556, 16 So. 550; Degman v. Degman, 98 Ky. 717, 34 S. W. 523; Clay v. Smallwood, 100 Ky. 212, 38 S. W. 7; Loosing v. Loosing, 85 Neb. 66, 122 N. W. 707; City of Portsmouth v. Shackford, 46 N. H. 423; McCamant v. Nuckolls, 85 Va. 331, 12 S. E. 160; lar way with the object of inducing some particular course of conduct on the part of the appointee19 or of punishing a particular course of conduct on the part of another20 But the execution in favor of a particular person will not, it seems, be set aside because it is based on a preference for that person over others, or on animosity to those excluded, the purpose or intention only, and not the motive, being a subject for inquiry.21 what is on its face a compliance therewith, to utilize the power for a purpose other than that contemplated by the creator thereof. Indeed the decisions under this head of fraud on powers appear to be in effect merely decisions as to the construction of particular powers, that is, decisions whether an attempted exercise of the power, if made with some particular motive, was to be regarded as within the scope of the power.
The doctrine referred to, having been found to be exceedingly unsatisfactory by reason of the difficulty of ascertaining, without a resort to Litigation, what was a merely nominal and what a substantial share, was abolished in England by a statute,10 providing that no appoint ment should be invalid by reason of the smallness of the share appointed in favor of any of the objects of the power.11 This statute was subsequently repealed by another statute12 in effect making every power to appoint among several objects an exclusive power, that is, a power authorizing an appointment which excludes one or more of such objects13 unless the amount of the share from which no member of the class shall be excluded is expressly stated in the instrument creating the power. In several states likewise the statute provides that when by the terms of the power the property is to be appointed among a class in such manner and proportions as the donee sees fit, he may allot it to one or more to the exclusion of others.14