366 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
(ii) Statutory power such as the power of sale given to a mortgagee.
(iii) The various express and implied equitable powers possessed by trustees and executors.
(iv) Powers to appoint trusts so as to create equitable interests.
- The power of appointment is a transaction which resembles a trust and it is this which must be distinguished from a trust.
The word appointment means -pointing out, indicatingthe act of declaring the destination of specific property, in exercise of an authority conferred for that purpose-the act of nominating to an office.
The last class termed powers of appointment are made use of where it is desired to make provision for the creation of future interests, but to postpone their complete declaration.
Thus in a marriage settlement, property may be given to trustees upon trust for the husband and wife for their lives and, after the death of the survivor upon trust for (i) Such of the children of the marriage as the survivor shall appoint, or (ii) All the children of the marriage in such shares as the survivors shall appoint. In such a case, upon appointment being made, the child to whom it is made takes exactly as if a limitation to the same effect had been made in the original instrument.
A power of this kind, where there is a restriction as to its objects (i.e., persons in whose favour it may be exercised) is termed a special power of appintment. But there may be a general power of appointment when there is no such restriction, so that the donee may appoint to himself. In such a case the donee having the same powers of disposition as an owner, is for most purposes treated as the owner of the property :
(i) A power may give a mere discretion and therefore is distinct from a trust, which creates an obligation or (ii) A power may impose an obligation to exercise the discretion.
In the former case there is no trust. In the latter case there is. The former is called mere power. The latter is called power in the nature of a trust or power coupled with trust.