Appointment

The designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust. As distinguished from an election, it seems that an appointment is generally made by one person, or a limited number acting with delegated powers, while an election is made by all of a class. The word is sometimes used in a sense quite akin to this, and apparently derived from it as denoting the right or privilegb conferred by an appointment. Thus, the act of authorizing a man to print the laws of the United States by authority, and the right thereby conveyed, are considered such an appointment, but the right is not an office. 17 Serg. & R. (Pa.) 29, 238. And see 3 Serg. & R. (Pa.) 157; Cooper, Just. 599, 604. The exercise of a right to designate the person or persons who are to take the use of real estate. 2 Washb. Real Prop. 302.

The designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust. The making out a commission is conclusive evidence of an appointment to an office for holding which a commission is required; Marbury v. Madison, 1 Cr. (U. S.) 137, 2 L. Ed. 60; U. S. v. Bradley, 10 Pet. (U. S.) 343, 9 L. Ed. 44S. For a discussion of constitutional and statutory limitations of executive and legislative functions in respect to appointments to office, see 30 Amer. & Eng. Corp- Cas. 321, note. The governor cannot make a valid appointment to an office which at the time is rightfully held by an incumbent whose term has not expired; State v. Peelle, 124 Ind. 515, 24 N. E. 440, 8 L. R. A. 228. As distinguished from an election, it seems that an appointment is generally made by one person, or a limited number acting with delegated powers, while an election Is made by all of a class. The word is sometimes used in a sense quite akin to this, and apparently derived from it as denoting the right or privilege conferred by an appointment: thus, the act of authorizing a man to print the laws of the United States by authority, and the right thereby conferred, are considered such an appointment, but the right is not an office; Com. v. Binns, 17 S. & R. (Pa.) 219, 233. And see Com. v. Sutherland, 3 S. & R. (Pa.) 157; Cooper, Justin. 599, 604. In Chancery Practice. The exercise of a right to designate the person or persons who are to take the use of real estate. 2 Washb. R. P. 302. By whom to be made. — It must be made by the person authorized; 2 Bouv. Inst. § 1922; who may be any person competent to dispose of an estate of his own in the same manner; 4 Kent 324; Including a married woman; 1 Sngd. Pow. 182; 3 C. B. 578; 5 id. 741; Ladd v. Ladd, 8 How. (U. S.) 27, 12 L. Ed. 967; even though her husband be the appointee; Rush v. Lewis, 21 Pa. 72; or an infant, if the power be simply collateral; 2 Washb. R. P. (5th ed.) *317. Where two or more are named as donees, all must in general join; Franklin v. Osgood, 14 Johns. (N. Y.) 553; but where given to several who Pet (U. S.) 564, 9 L. Ed. 522; Talnter t. Clark, 13 Mete. (Mass.) 220. When such a right is devolved upon two executors and two others are named as successors In of their death, no others can execute the trust so long as any one of the four is living and has not declined the trust, and an administrator c. t. a. will lie liable to suit by the succeeding trustee for trust property with which he intermeddles; Hayes v. Pratt, 147 U. S. 557, 13 Sup. Ct 503, 37 L. Ed. 27'.). How to be made. — A vt iy precise compliance with the directions of the donor is necessary; 1 P. Will. 740; 6 Mann. & G. 386; Ladd v. Ladd, 8 How. (U. S.) 30, 12 L. EkL 967; having regard to the intention, especially in substantial matters; Tudor, Lead. Cas. 306; 3 Ves. Ch. 421. It may be a partial execution of the power only, and yet be valid; 4 Cruise, Dig. 205; or, if excessive, may be good to the extent of the power; 2 Ves. Sen. 040; 3 Dru. & W. 339. It must come within the spirit of the power; thus, if the appointment is to be to and amongst several, a fair allotment must be made to each: 4 Ves. Ch. 771; 2 Vera. Ch. 513; otherwise, where it is to be made to such as the donee may select; 5 Ves. Ch. 857. The effect of an appointment is to vest the estate in the appointee, as if conveyed by the original donor;• 2 Washb. R. P. (5th ed.) *320; 2 Crabb. R. P. 726, 741: 2 Sngd. Pow. 22; Jackson v. Veeder, 11 Johns. (X. Y.) 169. Thus where the appointment, after an estate for life, is to a lineal descendant of the testator, but who is a collateral relation of the party exercising the power, the gift is not subject to a collateral inheritance tax; Com. v. Williams' Ex'rs, 13 Pa. 29. See Illusory Appointment; Power. Consult 2 Washb. R. P. (5th ed.) *29S, 337; Tudor, Lead. Cas.; Chance, Pow.; 4 Greenl. Cruise, Dig.

In chancery practice. The exercise of a right to designate the person or persons who are to take the use of real estate. 2 Washb. Real Prop. 302. The act of a person in directing the disposition of property, by limiting a use, or by substituting a new use for a former one, in pursuance of a power granted to him for that purpose by a preceding deed, called a "power of appointment;" also the deed or other instrument by which he so conveys. Where the power embraces several permitted objects, and the appointment is made to one or more of them, excluding others, it is called "exclusive." Appointment may signify an appropriation of money to a specific purpose. Harris ,v. Clark, 3 N. Y. 93, 119, 51 Am. Dec. 352.

In public law. The selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. State v. New Orleans, 41 La Ann. 156, 6 South. 592; Wickersham v. Brit-tan, 93 Cal. 34, 28 Pan. 792, 15 In R. A. 106; Speed v. Crawford, 3 Mete. (Ky.) 210. The term "appointment" is to be distinguished from "election." The former is an executive act, whereby a person is named as the incumbent of an office and invested therewith, by one or more individuals who have the sole power and right to select and constitute the officer. Election means that the person is chosen by a principle of selection in the nature of a vote, participated in by the public generally or by the entire class of persons qualified to express their choice in this manner. See McPherson v. Blacker, 148 In S1, 13 Sup. Ct. 3, 36 In Ed. 869 ; State v. Co.mpson, 34 Or. 25, 54 Pac. 349; Reid v. Gorsuch, 67 N. J. Law, 396, 51 Atl. 457; State v. Squire, 39 Ohio St. 197; State v. Williams, 60 Kan. 837, 58 Pac. 476.

The designation of a person to hold an oi Sce or discharge a trust; the act of- appointing; the exercise of the power of designating under a deed called a power of appointment the person who is to take the use of realty; also the instrument by which the designation is made. v. Power.

In chancery practice. The exercise of a right to designate the person or persons who are to take the use of real estate. 2 Washb. Real Prop. 302. The act of a person in directing the disposition of property, by limiting a use, or by substituting a new use for a former one, in pursuance of a power granted to him for that purpose by a preceding deed, called a “power of appointment;” also the deed or other instrument by which he so conveys. Where the power embraces several permitted objects, and the appointment is made to one or more of them, excluding others, it is called “exclusive.” Appointment may signify an appropriation of money to a specific purpose. 3 N. Y. 98, 119.

In public law. The selection or designation of a person, by the person or persons having authority therefor, to fill an oilice or public function and discharge the duties of the same. The term “appointment” is to be distinguished from “election.” The former is an executive act, whereby a person is named as the incumbent of an office and invested there. with, by one or more individuals who have the sole power and right to select and constitute the officer. Election means that the person is chosen by a principle of selection in the nature of a vote, participated in by the public generally or by the entire class of persons qualified to express their choice ia this manner.

Fixing, establishing: limitation, selection, designation. 1. Selection for the duties of an office or place of trust. Appointee. The person so designated, until qualified. A commission, regularly issued, is conclusive evidence t)f an appointment." Where a common council voted to ballot for a municipal officer, in pursuance of a power conferred by charter to " appoint " such officer, it was held that the ballot taken was intended to be an election, that is, an appointment. 3 Appointments to office are intrinsically executive acts, whether made by a court, a municipal council, an executive officer, or other person or body. A particular appointment is complete when the last act reauired of the appointing power is performed." See Office, 1; Resignation. 2. Exercise of the right to designate the person who is to take the use of realty.'' An authority given to another to be exercised over property in a manner and to an extent which he would not otherwise possess.^ Also Qalled power of appointment. Appointor. He who executes the power; the donee. He who confers the power is the donor. Appointee. He in whose favor the power is executed.* General appointment. Such appointment as enables the donee to name, as appointee, whom he pleases — even himself. Special appointment. Such as restricts the donee to naming one or more appointees from among particular persons. The latter dates from the creation of the power; the former from its exercise. > Nat. Bank of the Commonwealth u. Mechanics' Nat. Bank, 94 U. S. 439 (1876), cases; Nichols v. Knowles, 17 F. B. 495-96 (1881), cases; Bank of California V. Webb, 94 N. Y. 472 (1884), eases; Mc Curdy v. Middleton, 82 Ala. 137 (1886), cases; Sanborn r. Stark, 31 F; E. 18 (1887); 21 Cent. Law J. 473-79 (1885), cases. See also 9 Wheat. 720; 6 Cranch, 8; 1 Mass. 323; 88 Ind. 68-69, cases; 62 Miss. 8, 121, 500; 7 Oreg. 228; 59 Tex. 649; 55 Vt. 464, 543; 22 F. E. 570; 13 Am. Dec. 50.5. cases; 14 id. 694, cases; 1 Story, Eq. S 459 6; 2 Pars. Contr. 629. 2 United States v. Le Baron, 19 How. 79, 73 (1856); 1 Cranch, 137; 10 Pet. 313; 10 Oreg. 520. » State ex rel. Coogan v. Barbour, 63 Conn. 83, 85-90 (1885), cases. « [2 Washb. Real Prop. 302. Where a person, having a general power of appointment, by deed or by will, executes it, the property is deemed in equity a part of his assets, subject to the demands of his creditors in preference to the claims of voluntary appointees or of legar tees.i niusory appointment. Allotment of a nominal, not of a substantial, interest.^ The rule at common law was to require some allotment to each person where several appointees were intended. But the rule in equity requires a real, substantial portion in each appointee — a merely nominal allotnlent being viewed not only as illusory but as fraudulent.* A devise to a corporation for a charitable use is an appointment rather than a bequest.* The donee must be competent to dispose of an estate of his own In like manner. All donees, or their survivors, must join in executing the power. The donor's intention is to be strictly observed. A partial execution may be upheld. The estate vests in the appointee as if conveyed immediately by the donor. ^ See further Power, 2; Use, 3.

v. Power.

In equity, and conveyancing. A deed or instrument executed in pursuance of a power contained in some preceding deed, (called a power of appointment;) and which operates as a conveyance, by limiting a use, or by substituting a new use in place of a former one.* 1 Steph. Com. 506. 2 Crabb's Real Prop. 725. 8 § 2027, 2028. 4 Kenfse Om. 816. See Power of appointment. •/ An appomtment may be made by deed or will, or simply by writing, where the mode of executmg the power is not defined. 3 Kent's Com. 330. 1 Powell on Depism^ 65 — 71. It is not considerec* as an independent conveyance, but merely fiicillary to the former deed; and the party in whose favor it is made, called the appointee, is considered, for most purposes, as deriving his title under the ori^^nal conveyance, and to be in the same position as if that* instrument had actually contained a limitation in his favor, to the Extent of the estate appointed. 1 Stepk. Com. 506, 607. See Power.

government, wills. The act by which a person is selected and invested with an office; as the appointment of a judge, of which the making out of his commission is conclusive evidence, 1 Cranch, 137, 155. The appoint. ment of an executor, which is done by nominating him as such in a will or testament.