APPOINTEE. A person who is appointed or selected for a particular purpose; as the appointee under a power, is the person who is to receive the benefit of the trust or power.
/B>. One authorized1 by the donor2 under the statute3 of uses, to execute a power. 2 Bouv. Ins. n. 1923.
APPOINTMENT, chancery practice. The act of a person authorized by a will or other instrument to direct how trust property shall be disposed of, directing such disposition4 agreeably to the general directions of the trust.
2. The appointment must be made in such a manner as to come within the spirit of the power. And although at law the rule only requires that some allotment, however small, shall be given to each person, when the power is to appoint to and among several persons; the rule in equity5 differs, and requires a real and substantial portion to each, and a mere6 nominal7 allotment to one is deemed illusory and fraudulent. When the distribution is left to discretion8, without any prescribed rule, Is to such of the children as the trustee shall think proper, he may appoint to one only; 5 Ves. 857; but if the words be, 'amongst' the children as he should think proper, each must have a share, and the doctrine9 of illusory appointment applies. 4 Ves. 771 Prec. Ch. 256; 2 Vern. 513. Vide, generally, 1 Supp. to Ves. Jr. 40, 95, 201, 235, 237; 2 Id. 1 27; 1 Vern.67, n.; 1 Ves. Jr. 31 0, n.; 4 Kent, Com. 337; Sugd. on Pow. Index, h. t.; 2 Hill. Ab. Index, h. t.; 2 Bouv. Inst. n. 1921, et seq.
APPOINTMENT, 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 conclusive10 evidence. 1 Cranch, 137, 155; 10 Pet. 343. The appointment of an executor, which is done by nominating him as such in a will or testament11.
2. By appointment is also understood a public employment, nearly synonymous with office. The distinction is this, that the term appointment is of a more extensive signification than office; for example, the act of authorizing12 a man to print the laws of the United States by authority, and the right conveyed by such an act, is an appointment, but the right thus conveyed is not an office. 17 S. & R. 219, 233. See 3 S. & R. 157; Coop. Just. 599, 604.
APPORTIONMENT, contracts. Lord Coke defines it to be a division or partition of a rent, common, or the like, or the making it into parts. Co . Litt. 147. This definition seems incomplete. Apportionment frequently denotes, not, division, but distribution; and in its ordinary technical sense, the distribution of one subject in proportion to another previously14 distributed. 1 Swanst. C. 87, n.
2. Apportionment will here be considered only in relation to contracts, by talking a view, 1, of such as are purely15 personal and, 2, of such as relate to the realty.
3. – 1. When a Purely personal contract is entire and not divisible in its nature, it is manifest it cannot be apportioned16; as when the subject of the contract is but one thing, and there is but one creditor17 and one debtor18, neither can apportion13 the obligation without the consent of the other. In such case the creditor cannot force his debtor to pay him a part of his debt only, and leave the other part unpaid19, nor can the debtor compel his creditor to receive a part only of what is due to him on account of his claim. Nor can the assignee of a part sustain an action for such part. 5 N. S. 192.
4. When there is a special contract between the parties, in general no compensation can be received unless the whole contract has been actually fulfilled. 4 Greenl. 454; 2 Pick. R. 267; 10 Pick. R. 209; 4 Pick. R. 103; 4 M'Cord, R. 26, 246; 6 Verm. R. 35. The subject of the contract being a complex event, constituted by the performance of various acts, the imperfect completion of the event, by the performance of only some of those acts, cannot, by virtue20 of that contract, of which it is not the subject, afford a title to the whole, or any part of the stipulated21 benefit. See 1 Swanst. C. 338, n. and the cases there cited; Story, Bailm. 441; Chit. Contr. 168; 3 Watts22, 331; 2 Mass. 147, 436; 3 Hen. & Munf. 407; 2 John. Cas. 17; 13 John. R. 365; 11 Wend. 257; 7 Cowen, 184; 8 Cowen, 84; 2 Pick. 332. See generally on the subject of the apportionment, of personal obligations, 16 Vin. Ab. 138; 22 Vin. Ab. 13; Stark23. Ev. part 4, p. 1622; Com. Dig. Chancery, 2 E and 4 N 5; 3 Chit. Com. Law 129; Newl. Contr. 159; Long on Sales, 108. And for the doctrine of the civil law, see Dumoulin, de dividuo et individuo, part 2, n. 6, 7; Toull. Dr. Civ. Fr. liv. 3, tit 3, c. 4, n. 750, et seq.
5. – 2. With regard to rents, the law is different. Rents may in general be apportioned, and this may take place in several ways; first, by the act of the landlord or reversioner alone, and secondly24, by virtue of the statute of 11 Geo. II., c. 19, s. 15, or by statutes25 in the several states in which its principles have been embodied26.
6. – 1. When there is a subsisting27 obligation on the part of the tenant28 to pay a certain reat, the reversioner may sell his estate in different parts, to as many persons as he may deem proper, and the lessee29 or tenant will be bound to pay to each a proportion of the rent. 3 Watts, 404; 3 Kent Com. 470, 3d. ed.; Co. Litt. 158 a; Gilb. on Rents, 173; 7 Car. 23; 13 Co. 57 Cro. Eliz. 637, 651; Archb. L. &. T. 172 5 B. & A.876; 6 Halst. 262. It is usual for the owners of the reversion to agree among themselves as to the amount which each is to receive; but when there is no agreement, the rent will be apportioned by the jury. 3 Kent, Com. 470; 1 Bouv. Inst. n. 697.
7. – 2. Rent may be apportioned as to time by virtue of the stat. 11 Geo. H., C. 19, s. 15, by which it is provided that the rent due by a tenant for life, who dies during the currency of a quarter, of a year, or other division of time at which the rent was made payable30, shall be apportioned to the day of his death. In Delaware, Missouri, New Jersey31, and New York, it is provided by statutes, that if the tenant for life, lessor, die on the rent day, his executors may recover the whole rent; if before, a proportional part. In Delaware, Kentucky, Missouri, and New York, when one is entitled to rents, depending on the life of another, he may recover them notwithstanding the death of the latter. In Delaware, Kentucky, Missouri, and Virginia, it is specially32 provided, that the hushand, after the death of his wife, may recover the rents of her lands. 1 Hill. Ab. c. 16, 50. In Kentucky, the rent is to be apportioned when the lease is determined33 upon any contingency34.
8. When the tenant is deprived of the land, as by eviction35, by title paramount36, or by quitting the premises37 with the landlord's consent, in the absence of any agreement to the contrary, his obligation to pay rent ceases, as regards the current quarter or half year, or other day of payment, as the case may be. But rent which is due may be recovered. Gilb. on Rents, 145; 3 Kent, Comm. 376; 4 Wend. 423; 8 Cowen, 727 1 Har. & Gill, 308; 11 Mass. 493. See 4 Cruise's Dig. 206; 3 Call's R. 268; 4 M'Cord 447; 1 Bailey's R. 469; 2 Bouv. Inst. n. 1675, et seq.
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