This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
Executory interests are frequently created by means of powers of appointment: that is, by giving to some person the right to take the land away from one set of persons and give it to others.
Thus, a power is a capacity given to a person to dispose of a greater estate in the land than he himself possesses.
Or, more roughly, "a power to give away what you have not got."
Originally, even a tenant in fee simple had no power to dispose of the land for more than his own life: but by common law and the statute Quia Emptores, he soon acquired a power to sell or convey the whole fee simple; and by the statute of wills he acquired a power to dispose of the land by will. These powers are now considered as belonging naturally to a tenant in fee simple, and the word "power" is used to denote the same sort of powers when possessed by some person who has not the fee simple.
Powers are either -
(1) General Powers. - Where the donee of the power can "appoint" the land to any one without restriction.
E.g. A grants land to such persons as B shall appoint by deed or by his will.
B is called the "appointor," or "donee of the power," and he can "appoint" or give the land to any one he likes, including himself.
Until B makes the appointment he has no estate or interest in the land; but he can, at any moment, by executing a deed, vest the fee simple in himself.
(2) Special Powers. - Where the donee of the power can only appoint the land to one or more of the members of a certain class of persons.
Thus, land may be given by a marriage settlement to the husband for life, with remainder to such of the children of the marriage as the husband shall by will appoint.
The husband can then give the land by his will to any of his children; but he cannot give it to any person who is not his child. The children are said to be the "objects of the power."
If the donee of the power attempts to appoint the land in favour of any person who is not an object of the power, the appointment is bad. This is called an "excessive execution" of the power.
Thus, if the husband appointed part of the property to a grandchild, the appointment of that part would be bad.
Special powers are either -
(a) Non-exclusive: where the appointor must not exclude any member of the class; or
(b) Exclusive: where the appointor can appoint the whole property to one or more of the class and exclude the others.
At common law a special power was deemed to be nonexclusive unless the appointor was expressly authorised to exclude some of the class; and he was obliged to give some substantial share to each one, otherwise the appointment was "illusory " and void.
Now, by the Illusory Appointments Act, 1830 (c), in case of a non-exclusive power an appointment of the smallest amount is sufficient;
And by the Powers of Appointment Act, 1874 (d), a special power is deemed to be exclusive, unless the
(c) 11 Geo. IV. and 1 Will. IV. c. 46, s. 1.
(d) 37 & 38 Vict. c. 37.
appointor is expressly forbidden to exclude any member of the class.
Thus, if at the present day land is given "to such of the children of B as B shall by will appoint," B can give the whole of the land to any one of his children. Again, if the settlement expressly directs that he must give some part to each child, then he can give the smallest fraction to all his children except one, and give the whole of the land except that fraction to one child.
Powers may be created by deed or by will or by statute, and they may affect either the legal or the equitable estate.
Hence powers may be classified as follows: -
In early times, before a tenant in fee simple could alienate the fee, a grant to him, "his heirs and assigns " would give him power to alienate the fee. This was a Common Law power.
2. Powers under the Statute of Uses. - In this case the exercise of the power transfers the legal estate by reason of the Statute of Uses which vests the legal estate in the person who has the use.
E.g. "to T to the use of such persons as A shall appoint.' A appoints to the use of X. X gets the legal state.
3. Equitable Powers. - "Where the appointor cannot deal with the legal estate, but can only appoint the equitable estate.
E.g: "unto and to the use of T in trust for such persons as "A shall appoint." A appoints in favour of X. T then holds the land in trust for X.
4. Statutory Powers, or powers created by statute.
E.g. the powers given to a tenant for life under the Settled
Land Acts, whereby a person who has only a life estate can sell the whole fee simple.
The appointor need not have any estate or interest in the land over which he has a power of appointment.
In this case the power is said to be collateral, and is -
Either (a) simply collateral: when he cannot appoint to himself.
Or (b) collateral and in gross; when he can (e).
If the appointor has some estate in the land, the power is said to be a power relating to land, and then it is -
Either (a) appendant: when the appointor can, by the exercise of the power, destroy his own estate.
E.g. a tenant for life can sell the whole fee simple under the Settled Land Acts, and thus destroy his own life estate in the land.
Or (b) appendant and in gross: when the power does not arise until the termination of the estate of the appointor.
E.g. land is granted "to A for life, with remainder to such of his children as he shall by deed or will appoint."
A power may be released by a deed (f), except in the case of a power "coupled with a duty," i.e. a power which is given to one person upon trust to be exercised for the benefit of others (g).