1 Present: All the Justices 2 3 DAN L. FRAZER 4 5 v. Record No. 952115 OPINION BY JUSTICE ELIZABETH B. LACY 6 September 13, 1996 7 AUSTIN LINWOOD MILLINGTON, 8 ETC., ET AL. 9 10 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 11 Michael P. McWeeny, Judge 12 13 This appeal involves issues relating to the exercise of a 14 special testamentary power of appointment contained in a trust 15 agreement and to a management/co-ownership agreement executed 16 between beneficiaries of the trust. 17 Mildred W. Frazer executed a will and a Trust Agreement in 18 1984 which provided that all her property be placed into the 19 Mildred W. Frazer Trust (the Trust) at her death. The Trust was 20 a discretionary trust to be administered for the benefit of her 21 two children, Dan L. Frazer and Shelle Frazer Millington. The 22 relevant division date of the Trust was July 1, 1995. 23 Following Mildred Frazer's death in 1986, disputes arose 24 between the trust beneficiaries and the trustees. The resulting 25 litigation was settled in 1992. As part of the settlement, the 26 trustees agreed to name Shelle as trustee with Dan as the 27 successor trustee in the event Shelle could not serve. 28 Additionally, Dan and Shelle executed a Management/co-ownership 29 Agreement which contained provisions regarding the division and 30 distribution of the Trust assets and authorized Shelle to run the 31 businesses which comprised the primary assets of the Trust. 32 Shelle died unexpectedly in 1994, leaving no children. In 33 her will she named her husband, Austin Linwood Millington, as the 1 executor and sole beneficiary of her estate. Shelle's will also 2 referred to a special testamentary power of appointment contained 3 in Article V, Paragraph 3 of the Trust Agreement, and directed 4 that "all property subject thereto shall pass to my husband." 5 Following Shelle's death, Dan, acting as successor trustee, 6 transferred some assets of the Trust to himself and directed that 7 trust distributions be made only to him. 8 Millington, individually and as executor of Shelle's estate, 9 filed a bill of complaint seeking, inter alia, a declaratory 10 judgment that either (1) he, individually, was a beneficiary of 11 the Trust through Shelle's exercise of the special testamentary 12 power of appointment in his favor, or (2) Shelle's estate was a 13 beneficiary of the Trust because it succeeded to her contract 14 rights in the Management/co-ownership Agreement. Millington also 15 sought the appointment of an independent trustee. 16 Following a four-day hearing, the trial court ruled that 17 provisions of both the Trust Agreement and Management/co- 18 ownership Agreement were ambiguous and, based on extrinsic 19 evidence, concluded that Shelle's exercise of the special 20 testamentary power of appointment was ineffective to pass any 21 interest in the Trust to Millington. The trial court further 22 held that the Management/co-ownership Agreement was a valid 23 contract and that, under Paragraph 20 of the Agreement, Shelle's 24 estate succeeded to her contract right to require distribution of 25 the trust assets in accordance with the terms of the Agreement. 26 The trial court appointed an independent trustee based on its 27 determination that neither the Management/co-ownership Agreement 1 nor the 1992 settlement agreement constituted a valid appointment 2 of Dan as a successor trustee to Shelle. Finally, the trial 3 court ruled that the Trust was liable for the attorneys' fees and 4 costs related to litigation filed by Dan which Shelle defended in 5 her capacity as trustee of the Trust. 6 Dan appealed, challenging the trial court's holding that 7 Shelle's estate could enforce contract rights under the 8 Management/co-ownership Agreement, the appointment of an 9 independent trustee, and the payment of attorneys' fees and costs 10 by the Trust. Millington assigned cross-error, asserting that 11 the terms of the Trust Agreement were not ambiguous and that 12 Shelle had effectively exercised the special testamentary power 13 of appointment granted in Article V, Paragraph 3 of the Trust 14 Agreement. We awarded an appeal on all issues. 15 We begin, as the trial court did, by considering the 16 provisions of the Trust Agreement applicable to the special 17 testamentary power of appointment which Shelle attempted to 18 exercise in favor of Millington. The relevant provisions of the 19 Trust Agreement state in pertinent part: 20 2. . . . 21 22 On the Division Date, the Trustee shall divide the 23 Trust Estate into separate shares, one share for each 24 of her children who is living on the Division Date and 25 one for each of her deceased children who leaves a 26 descendant living on the Division Date. 27 28 . . . . 29 30 3. Each child who survives the Grantor shall have a 31 special testamentary power to appoint all or any part 32 of the undistributed income and principal of his share 33 (when determined as of the Division Date) to any 34 person, firm or institution other than his estate, his 35 creditors or the creditors of his estate . . .; 1 provided that he specifically refer in his will to this 2 special power of appointment and his intent to exercise 3 it. Should a child not fully exercise his special 4 power of appointment, then the unappointed portion of 5 his share remaining at his death shall pass free of 6 trust per stirpes to his descendants who survive him. 7 If no descendant survives him, then the unappointed 8 portion of his share shall pass per stirpes, to the 9 Grantor's descendants who survive that child. 10 11 Dan asserts that the trial court correctly found that these 12 two paragraphs were ambiguous and that, based on the parol 13 evidence introduced, Mildred Frazer intended that Shelle or her 14 descendant had to survive the distribution date of the Trust to 15 obtain an interest in the trust. Because Shelle died before the 16 division date and without a descendant, she had no interest in 17 the Trust and therefore had no interest to transfer to Millington 18 under the special testamentary power of appointment granted in 19 Paragraph 3. We conclude that this construction of the Trust 20 Agreement is incorrect. 21 In construing the terms of the Trust Agreement, we seek to 22 effectuate the intent of the grantor. In ascertaining that 23 intention, we must examine the document as a whole and give 24 effect, so far as possible, to all its parts. Thomas v. 25 Copenhaver, 235 Va. 124, 128, 365 S.E.2d 760, 763 (1988). A 26 cardinal rule of will construction is that if "the words and 27 language of the testator are clear, the will needs no 28 interpretation. It speaks for itself." McKinsey v. 29 Cullingsworth, 175 Va. 411, 414, 9 S.E.2d 315, 316 (1940). 30 Applying these principles, we conclude that the provisions of the 31 paragraphs in issue are not ambiguous. They reflect the 32 grantor's intent to create a special testamentary power of 1 appointment over a beneficiary's interest in the Trust and do not 2 condition effective exercise of that power on the beneficiary or 3 a descendant of the beneficiary surviving the distribution date 4 of the Trust. 5 The first sentence of Paragraph 3 can only be construed as 6 expressing the grantor's intent to provide for the exercise of a 7 special testamentary power of appointment. A power of 8 appointment is "a unique legal creature" which "concerns property 9 but is not, itself, 'an absolute right of property.'" Holzbach 10 v. United Va. Bank, 216 Va. 482, 484, 219 S.E.2d 868, 870 11 (1975)(quoting Davis v. Kendall, 130 Va. 175, 197, 107 S.E. 751, 12 758 (1921)). It is the power to dispose of property vested in 13 another. Davis, 130 Va. at 204, 107 S.E. at 760. The exercise 14 of the power does not transfer property from the donee to the 15 appointee, in this case from Shelle to Millington, but rather 16 from the donor to the appointee. The donee, Shelle, is only a 17 conduit. Holzbach, 216 Va. at 484, 219 S.E.2d at 871; 18 Commonwealth v. Carter, 198 Va. 141, 145, 92 S.E.2d 369, 372 19 (1956). Thus, the donee must be able to exercise the power prior 20 to the time the property vests in the donee. To condition a 21 power of appointment on the vesting of the fee simple interest in 22 the donee/beneficiary directly contradicts the reason for and 23 principles underlying a power of appointment. 24 The grantor, Mildred Frazier, described the power of 25 appointment contained in Paragraph 3 as a testamentary power. 26 Thus it may only be exercised if the donee dies before the 27 division date. If the donee survived the division date, the 1 donee would take absolute ownership of the subject of the special 2 power of appointment, and the special power would merge with the 3 fee simple. See Browning v. Bluegrass Hardware Co., 153 Va. 20, 4 29, 149 S.E. 497, 499-500 (1929). 5 Lastly, the construction urged by Dan creates a direct 6 conflict with the final sentence of Paragraph 3, as quoted above. 7 That sentence specifically addresses a situation in which a 8 special testamentary power is partially exercised and no 9 descendants survive the donee at the division date. If Dan's 10 assertion that the donee or his descendant must survive the 11 division date to effectively exercise the special power was 12 correct, there would be no need for the Trust Agreement to 13 address a circumstance in which no descendants survived the donee 14 at the division date. "Inconsistencies in testamentary documents 15 'are not looked upon with favor and the court should undertake, 16 wherever it is possible, to reconcile conflicting provisions, 17 keeping in mind always this elementary rule, the testatrix's 18 intentions control.'" West v. Hines, 245 Va. 379, 384, 429 19 S.E.2d 1, 3 (1993)(quoting Whittle v. Roper, 156 Va. 407, 413, 20 157 S.E. 827, 829 (1931)). 21 Giving expression to all the provisions, we hold that 22 Mildred Frazer's intent is ascertainable and unambiguous. A 23 plain reading shows that Mildred Frazer intended to allow her 24 children to exercise a special testamentary power of appointment 25 without requiring that they or one of their descendants survive 26 the division date. Accordingly, we now consider whether Shelle 27 effectively exercised that power in her will. 1 A donor may impose conditions and requirements upon the 2 exercise of a power of appointment, and the valid exercise of 3 that power is dependent upon compliance with those conditions and 4 requirements. Holzbach, 216 Va. at 484, 219 S.E.2d at 871. 5 Under the provisions of Article V, Paragraph 3 of the Trust 6 Agreement, valid exercise of the special power requires that: 1) 7 the donee survive the donor; 2) the donee not appoint himself, 8 his creditors, his estate, or creditors of his estate; and, 3) 9 the donee specifically reference the special power in his or her 10 will. There is no contention that these conditions were not met 11 and we find that they were satisfied. We, therefore, hold that 12 Shelle Millington validly exercised her special power of 13 appointment in favor of Austin Millington. 14 In light of our holding regarding the exercise of the 15 special power of appointment, we need not address Dan's 16 assignment of error concerning whether Shelle's estate was a 17 beneficiary of the trust as a successor in interest to her 18 contract rights in the Management/co-ownership Agreement. In 19 considering the two remaining assignments of error, we first 20 conclude that the trial court was correct in holding that Dan was 21 not appointed trustee of the Trust in accordance with the 22 provisions of the Trust Agreement. 23 Appointment of trustees must conform precisely to the 24 requirements of the trust document. Little v. Ward, 250 Va. 3, 25 9-10, 458 S.E.2d 586, 590 (1995). Article VIII, Paragraph 4 of 26 the Agreement provides that only an individual serving as a 27 trustee may appoint his or her successor trustee. While both the 1 Management/co-ownership Agreement and 1992 settlement provide 2 that Dan would automatically become successor trustee to Shelle 3 if Shelle could not serve, these documents could not constitute a 4 valid appointment of Dan. The trustees signing the 1992 5 settlement could only appoint their own successor, not a 6 subsequent successor trustee. Shelle was not appointed trustee 7 until after she executed the agreements. Thus neither document 8 constitutes a valid appointment by Shelle of Dan as her successor 9 trustee. Accordingly, the trial court properly appointed an 10 independent trustee to settle the affairs of the Trust. 11 Furthermore, the orders of the trial court giving direction to 12 the independent trustee and directing Dan to account for and 13 return certain assets to the Trust were proper. 14 Finally, we reject Dan's contention that the trial court 15 erred in determining that litigation filed by Dan naming Shelle 16 "individually" as the defendant was in fact litigation related 17 directly to Shelle's activities as trustee of the Trust. The 18 record supports the trial court's conclusion that the attorneys' 19 fees incurred in the defense of that litigation were properly 20 payable by the Trust. 21 In summary, we will reverse that portion of the trial 22 court's judgment holding that Shelle Millington's attempt to 23 exercise the special testamentary power of appointment granted in 24 Article V, Paragraph 3 of the Trust Agreement in favor of Austin 25 Millington was ineffective and will enter judgment for Austin 26 Millington on that issue. We will affirm that portion of the 27 judgment of the trial court regarding the appointment of and 1 direction to an independent trustee and directing the Trust to 2 pay certain attorneys' fees and costs. 3 Affirmed in part, 4 reversed in part, 5 and final judgment.