
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Leslie Boynton Behage v. Marc Purintun, Adm’r, et al.
    August 13, 1997
    Case No. HI-101-3
   By Judge T. J. Markow

This case concerns the interpretation of a duly probated will. Most of the property in the subject estate has already been appropriately distributed. Plaintiff, one of the decedent’s sisters, who is an heir in toe event of intestacy, has filed a Bill of Complaint seeking to have toe assets remaining in toe estate at this point distributed under the rules of intestacy. Defendant, toe administrator of toe estate, has filed a cross-bill for aid and guidance. He asserts that toe terms of toe will require that he distribute toe remainder of toe estate to certain friends of toe decedent One of these Mends, Milton Adams, has intervened in this case, asserting his right to toe assets.

The controversy centers on one provision of toe will. It is labeled paragraph Twelfth and provides as follows:

To my close Mends, Jerry Thompson, Mark Pennington, Will Mastín, Paul Carl and many others, I would like for my executor to make whatever dispositions of property as he deems appropriate.

This paragraph of toe will, which creates a power of appointment constitutes toe only provision which remains to be acted upon by toe administrator of toe estate. It has come into controversy because of toe death of toe executor.

Earlier in toe will, Larry Clifford Koonts was named as executor. No provision was nude for a substitute or alternate executor to act in toe event that Mr. Koonts had Med to qualify or had been unable to perform bis duties. Mr. Koonts did qualify, and began toe process of administering toe estate. However, before he could give Ml effect to paragraph Twelfth, he died. Defendant Marc Purintun has been appointed and is serving as the administrator, dlb.n., c.La., of the estate.

Mr. Purintun, while not mentioned in the will, claims to be a friend of the decedent. He believes that he can exercise the discretion afforded to the executor in paragraph Twelfth and follow the testator’s intentions. He proposes to distribute the remainder of the estate, at least in part, to the intervener, Mr. Adams.

Plaintiff claims that paragraph Twelfth was not a residuary clause. Plaintiff further contends that the power of appointment created by that provision was personal to Mr. Koonts and does not pass on to his successor, Mr. Purintun. Finally, Plaintiff argues that the class designated in the power of appointment is too broad and too ambiguous to be given effect by this Court.

Defendants claim drat the testator deliberately limited the bequests to his natural heirs and to allow tire property to pass intestate would be to defy the intent of tire testator. They claim that Mr. Purintun is able to carry out the wishes of tire testator as well as Mr. Koonts would have been. They further claim that the class is defined and limited by tire language of the will.

The Court finds that the power of appointment does not survive the death of tire donee of that power, Mr. Koonts. As such, tire Court does not reach tiré issues of whether the provision would have been considered a residuary clause and whether tire class is overly broad and ambiguous.

"A power of appointment, where a trust and confidence is reposed in tire donee, is personal to the donee, and cannot be delegated.” Hood v. Haden, 82 Va. 588, 595 (1886). If a testator, in creating a power of appointment, does so relying on tire donee’s discretion to make the ultimate appointment, no one but the donee has tire discretion to do so. See Frazier v. Frazier, 29 Va. (2 Leigh) 642 (1831); Robinson v. Allen, 52 Va. (11 Gratt.) 785 (1854). It is not enough that Mr. Purintun knew tire testator's wishes as well as Mr. Koonts did. Assuming this to be true, Mr. Purintun is, for all intents and purposes under this will, a stranger to the will. The Court cannot conclude that the testator expressed an intent to allow just anyone to exercise the discretion allowed by the provision in question.

The argument can be made that tire language of tire provision gives tire discretion to tire "executor” not to Koonts. Since tire administrator functions in an analogous capacity to tire executor, it might follow that tire power of appointment had as its donee anyone who performed that role.

This argument fails in tire face of the will. The Court must read tire will as a whole. In doing so, tire Court notices that the testator did not have a provision for a substitute or alternate executor. This implies that he had never considered that die donee of the power of appointment might be someone other than Mr. Koonts. Further, Mr. Koonts is described elsewhere in the will as “my friend," and is left; by specific bequest, a diamond ring, an oil painting, and other small mementos he may wish so as to he able to remember the testator. This implies a close friendship. There is a reason, die Court finds, that it was Larry Koonts who was selected as the executor. Furthermore, there is a reason why it was Larry Koonts who was selected as the donee of the power of appointment. Given that the class mentioned in die power of appointment, close friends, is of the type which would require some personal knowledge of die testator to define, it is not surprising that the testator chose a specific individual who was a friend to play that role.

As the Court has found that the power of appointment was personal to Mir. Koonts, it cannot be exercised by anyone else, including Mr. Purintun. Therefore, paragraph Twelfth is of no effect The remaining property belonging to die estate must pass by die laws of intestate succession.

Defendants argue that this defeats the intent of die testator, as he had given a specific bequest to one of his sisters and had left only a message to the other (effectively disinheriting her), and the decision will allow them to take a largor share of the estate. This may be true. However, assuming that the testator did not wish to leave the remaining property to his sisters, he did not take die necessary steps to see that, under any circumstances, they would cot inherit the property. The Court can only give effect to the testator’s intentions to die degree that they are lawfully and completely expressed in a valid will  