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DAN L. FRAZER 

v. Record No. 952115 OPINION BY JUSTICE ELIZABETH B. LACY 

 September 13, 1996 

AUSTIN LINWOOD MILLINGTON, 

ETC., ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 This appeal involves issues relating to the exercise of a 

special testamentary power of appointment contained in a trust 

agreement and to a management/co-ownership agreement executed 

between beneficiaries of the trust. 

 Mildred W. Frazer executed a will and a Trust Agreement in 

1984 which provided that all her property be placed into the 

Mildred W. Frazer Trust (the Trust) at her death. The Trust was 

a discretionary trust to be administered for the benefit of her 

two children, Dan L. Frazer and Shelle Frazer Millington. The 

relevant division date of the Trust was July 1, 1995. 

 Following Mildred Frazer's death in 1986, disputes arose 

between the trust beneficiaries and the trustees. The resulting 

litigation was settled in 1992. As part of the settlement, the 

trustees agreed to name Shelle as trustee with Dan as the 

successor trustee in the event Shelle could not serve. 

Additionally, Dan and Shelle executed a Management/co-ownership 

Agreement which contained provisions regarding the division and 

distribution of the Trust assets and authorized Shelle to run the 

businesses which comprised the primary assets of the Trust. 

 Shelle died unexpectedly in 1994, leaving no children. In 

her will she named her husband, Austin Linwood Millington, as the 
executor and sole beneficiary of her estate. Shelle's will also 

referred to a special testamentary power of appointment contained 

in Article V, Paragraph 3 of the Trust Agreement, and directed 

that "all property subject thereto shall pass to my husband." 

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 Following Shelle's death, Dan, acting as successor trustee, 

transferred some assets of the Trust to himself and directed that 

trust distributions be made only to him. 

 Millington, individually and as executor of Shelle's estate, 

filed a bill of complaint seeking, inter alia, a declaratory 

judgment that either (1) he, individually, was a beneficiary of 

the Trust through Shelle's exercise of the special testamentary 

power of appointment in his favor, or (2) Shelle's estate was a 

beneficiary of the Trust because it succeeded to her contract 

rights in the Management/co-ownership Agreement. Millington also 

sought the appointment of an independent trustee. 

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 Following a four-day hearing, the trial court ruled that 

provisions of both the Trust Agreement and Management/coownership Agreement were ambiguous and, based on extrinsic 

evidence, concluded that Shelle's exercise of the special 

testamentary power of appointment was ineffective to pass any 

interest in the Trust to Millington. The trial court further 

held that the Management/co-ownership Agreement was a valid 

contract and that, under Paragraph 20 of the Agreement, Shelle's 

estate succeeded to her contract right to require distribution of 

the trust assets in accordance with the terms of the Agreement. 

The trial court appointed an independent trustee based on its 

determination that neither the Management/co-ownership Agreement 
nor the 1992 settlement agreement constituted a valid appointment 

of Dan as a successor trustee to Shelle. Finally, the trial 

court ruled that the Trust was liable for the attorneys' fees and 

costs related to litigation filed by Dan which Shelle defended in 

her capacity as trustee of the Trust. 

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 Dan appealed, challenging the trial court's holding that 

Shelle's estate could enforce contract rights under the 

Management/co-ownership Agreement, the appointment of an 

independent trustee, and the payment of attorneys' fees and costs 

by the Trust. Millington assigned cross-error, asserting that 

the terms of the Trust Agreement were not ambiguous and that 

Shelle had effectively exercised the special testamentary power 

of appointment granted in Article V, Paragraph 3 of the Trust 

Agreement. We awarded an appeal on all issues. 

 We begin, as the trial court did, by considering the 

provisions of the Trust Agreement applicable to the special 

testamentary power of appointment which Shelle attempted to 

exercise in favor of Millington. The relevant provisions of the 

Trust Agreement state in pertinent part: 

 2. . . . 

 On the Division Date, the Trustee shall divide the 

Trust Estate into separate shares, one share for each 

of her children who is living on the Division Date and 

one for each of her deceased children who leaves a 

descendant living on the Division Date. 

 . . . . 

 3. Each child who survives the Grantor shall have a 

special testamentary power to appoint all or any part 

of the undistributed income and principal of his share 

(when determined as of the Division Date) to any 

person, firm or institution other than his estate, his 

creditors or the creditors of his estate . . .; 
provided that he specifically refer in his will to this 

special power of appointment and his intent to exercise 

it. Should a child not fully exercise his special 

power of appointment, then the unappointed portion of 

his share remaining at his death shall pass free of 

trust 

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per stirpes to his descendants who survive him. 

If no descendant survives him, then the unappointed 

portion of his share shall pass 

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per stirpes, to the 

Grantor's descendants who survive that child. 

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 Dan asserts that the trial court correctly found that these 

two paragraphs were ambiguous and that, based on the parol 

evidence introduced, Mildred Frazer intended that Shelle or her 

descendant had to survive the distribution date of the Trust to 

obtain an interest in the trust. Because Shelle died before the 

division date and without a descendant, she had no interest in 

the Trust and therefore had no interest to transfer to Millington 

under the special testamentary power of appointment granted in 

Paragraph 3. We conclude that this construction of the Trust 

Agreement is incorrect. 

 In construing the terms of the Trust Agreement, we seek to 

effectuate the intent of the grantor. In ascertaining that 

intention, we must examine the document as a whole and give 

24 effect, so far as possible, to all its parts. Thomas v. 

Copenhaver, 235 Va. 124, 128, 365 S.E.2d 760, 763 (1988). A 

cardinal rule of will construction is that if "the words and 

language of the testator are clear, the will needs no 

interpretation. It speaks for itself." 

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28 McKinsey v. 

Cullingsworth, 175 Va. 411, 414, 9 S.E.2d 315, 316 (1940). 

Applying these principles, we conclude that the provisions of the 

paragraphs in issue are not ambiguous. They reflect the 

grantor's intent to create a special testamentary power of 

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appointment over a beneficiary's interest in the Trust and do not 

condition effective exercise of that power on the beneficiary or 

a descendant of the beneficiary surviving the distribution date 

of the Trust. 

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 The first sentence of Paragraph 3 can only be construed as 

expressing the grantor's intent to provide for the exercise of a 

special testamentary power of appointment. A power of 

appointment is "a unique legal creature" which "concerns property 

9 but is not, itself, 'an absolute right of property.'" Holzbach 

v. United Va. Bank, 216 Va. 482, 484, 219 S.E.2d 868, 870 

(1975)(quoting 

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Davis v. Kendall, 130 Va. 175, 197, 107 S.E. 751, 

758 (1921)). It is the power to dispose of property vested in 

another. 

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Davis, 130 Va. at 204, 107 S.E. at 760. The exercise 

of the power does not transfer property from the donee to the 

appointee, in this case from Shelle to Millington, but rather 

from the donor to the appointee. The donee, Shelle, is only a 

conduit. 

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17 Holzbach, 216 Va. at 484, 219 S.E.2d at 871; 

Commonwealth v. Carter, 198 Va. 141, 145, 92 S.E.2d 369, 372 

(1956). Thus, the donee must be able to exercise the power prior 

to the time the property vests in the donee. To condition a 

power of appointment on the vesting of the fee simple interest in 

the donee/beneficiary directly contradicts the reason for and 

principles underlying a power of appointment. 

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 The grantor, Mildred Frazier, described the power of 

appointment contained in Paragraph 3 as a testamentary power. 

Thus it may only be exercised if the donee dies before the 

division date. If the donee survived the division date, the 
donee would take absolute ownership of the subject of the special 

power of appointment, and the special power would merge with the 

fee simple. 

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See Browning v. Bluegrass Hardware Co., 153 Va. 20, 

29, 149 S.E. 497, 499-500 (1929). 

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 Lastly, the construction urged by Dan creates a direct 

conflict with the final sentence of Paragraph 3, as quoted above. 

 That sentence specifically addresses a situation in which a 

special testamentary power is partially exercised and no 

descendants survive the donee at the division date. If Dan's 

assertion that the donee or his descendant must survive the 

division date to effectively exercise the special power was 

correct, there would be no need for the Trust Agreement to 

address a circumstance in which no descendants survived the donee 

at the division date. "Inconsistencies in testamentary documents 

'are not looked upon with favor and the court should undertake, 

wherever it is possible, to reconcile conflicting provisions, 

keeping in mind always this elementary rule, the testatrix's 

intentions control.'" West v. Hines, 245 Va. 379, 384, 429 

S.E.2d 1, 3 (1993)(quoting 

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Whittle v. Roper, 156 Va. 407, 413, 

157 S.E. 827, 829 (1931)). 

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 Giving expression to all the provisions, we hold that 

Mildred Frazer's intent is ascertainable and unambiguous. A 

plain reading shows that Mildred Frazer intended to allow her 

children to exercise a special testamentary power of appointment 

without requiring that they or one of their descendants survive 

the division date. Accordingly, we now consider whether Shelle 

effectively exercised that power in her will. 
 A donor may impose conditions and requirements upon the 

exercise of a power of appointment, and the valid exercise of 

that power is dependent upon compliance with those conditions and 

requirements. 

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Holzbach, 216 Va. at 484, 219 S.E.2d at 871. 

Under the provisions of Article V, Paragraph 3 of the Trust 

Agreement, valid exercise of the special power requires that: 1) 

the donee survive the donor; 2) the donee not appoint himself, 

his creditors, his estate, or creditors of his estate; and, 3) 

the donee specifically reference the special power in his or her 

will. There is no contention that these conditions were not met 

and we find that they were satisfied. We, therefore, hold that 

Shelle Millington validly exercised her special power of 

appointment in favor of Austin Millington. 

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 In light of our holding regarding the exercise of the 

special power of appointment, we need not address Dan's 

assignment of error concerning whether Shelle's estate was a 

beneficiary of the trust as a successor in interest to her 

contract rights in the Management/co-ownership Agreement. In 

considering the two remaining assignments of error, we first 

conclude that the trial court was correct in holding that Dan was 

not appointed trustee of the Trust in accordance with the 

provisions of the Trust Agreement. 

 Appointment of trustees must conform precisely to the 

requirements of the trust document. Little v. Ward, 250 Va. 3, 

9-10, 458 S.E.2d 586, 590 (1995). Article VIII, Paragraph 4 of 

the Agreement provides that only an individual serving as a 

trustee may appoint his or her successor trustee. While both the 

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Management/co-ownership Agreement and 1992 settlement provide 

that Dan would automatically become successor trustee to Shelle 

if Shelle could not serve, these documents could not constitute a 

valid appointment of Dan. The trustees signing the 1992 

settlement could only appoint their own successor, not a 

subsequent successor trustee. Shelle was not appointed trustee 

until after she executed the agreements. Thus neither document 

constitutes a valid appointment by Shelle of Dan as her successor 

trustee. Accordingly, the trial court properly appointed an 

independent trustee to settle the affairs of the Trust. 

Furthermore, the orders of the trial court giving direction to 

the independent trustee and directing Dan to account for and 

return certain assets to the Trust were proper. 

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 Finally, we reject Dan's contention that the trial court 

erred in determining that litigation filed by Dan naming Shelle 

"individually" as the defendant was in fact litigation related 

directly to Shelle's activities as trustee of the Trust. The 

record supports the trial court's conclusion that the attorneys' 

fees incurred in the defense of that litigation were properly 

payable by the Trust. 

 In summary, we will reverse that portion of the trial 

court's judgment holding that Shelle Millington's attempt to 

exercise the special testamentary power of appointment granted in 

Article V, Paragraph 3 of the Trust Agreement in favor of Austin 

Millington was ineffective and will enter judgment for Austin 

Millington on that issue. We will affirm that portion of the 

judgment of the trial court regarding the appointment of and 
direction to an independent trustee and directing the Trust to 

pay certain attorneys' fees and costs. 

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4 reversed in part, 5 and final judgment.