APPOINTMENT. The designation of a person, by the person or persons having au thority 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. 448. For a discussion of constitu tional and statutory limitations of executive and legislative functions in respect to ap pointments to office, see 30 Amer. & Eng. Corp. Cas. 321, note.
The governor cannot make a valid appoint ment to an office which at the time is right fully 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, white 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 appoint ment: 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 ap pointment, but the right is not an office; Corn. v. Binns, 17 S. & R. (Pa.) 219, 233. And see Com. v. Sutherland, 3 8. & R. (Pa.) 157; Cooper, Justin. 699, 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 Sugd. 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; Rxish 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 gen eral join ; Franklin v. Osgood, 14 Johns.
(N. Y.) 553 ; but where given to several who act in a trust capacity, as a class, it may be by the survivors; Peter v. Beverly, 10 Pet. (U. S.) 564, 9 L. Ed. 522 ; Tainter v. Clark, 13 Mete. (Mass.) 220. When such a right is devolved upon two executors and two others are named as successors in case of their death, no others can execute the trust so long as any one of the four is liv ing and has not declined the trust, and an administrator c. t. a. will be liable to suit by the succeedibg trustee for trust property with which he intermeddles ; Hayes v. Pratt, 147 U. S. 557, 13 Sup. Ct. 503, 37 L. Ed. 279.
How to be made.—A very precise compli ance with the directions of the donor is nec essary; 1 P. Will. 740 ; 6 Mann. & G. 386; Ladd v. Ladd, 8 How. (U. S.) 30, 12 L. Ed. 967; having regard to the intention, especial ly in substantial matters; Tudor, Lead. Cas. 306; 3 Ves. Ch. 421. It may be a partial execution of the power only, and yet be val id; 4 Cruise, Dig. 205; or, if excessive, may be good to the extent of the power ; 2 Ves. Sen. 640; 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 Vern. 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 Sugd. Pow. 22; Jackson v. Veeder, 11 Johns. (N. 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 ; Corn. v. Williams' Ex'rs, 13 Pa. 29.
See ILLUSORY APPOINTMENT; POWER. Con sult 2 Washb. R. P. (5th ed.) *298, 337; Tu dor, Lead. Cas.; Chance, Pow.; 4 Greenl. Cruise, Dig.