## Facts

- Clara Clayton Post died in West Virginia in 1975; her will and codicil were admitted to probate, and Josephine H. Berry qualified as executrix.
- The will created a private educational trust for descendants of Post’s late husband’s brothers and sisters, giving the trustee discretion to pay educational expenses for qualifying class members.
- The trust was to last 25 years after Post’s death or until the principal fell below $5,000, whichever occurred first; upon termination, principal and income would be distributed per stirpes to then-living descendants of the husband’s siblings.
- Berry concluded the 25-year duration created a rule-against-perpetuities risk and entered a termination agreement with the trustee bank reducing the duration to 21 years and calling for a declaratory judgment action.
- A guardian ad litem was appointed to represent unborn beneficiaries.
- In the declaratory judgment action, the circuit court granted summary judgment for heirs at law, held the trust void for violating the rule against perpetuities, and ruled the executrix and trustee lacked authority to enter the termination agreement.

## Issues

1. Whether an executor is a necessary party with standing to bring and appeal a declaratory judgment action concerning will construction and estate administration.
2. Whether a private testamentary trust that facially violates the rule against perpetuities must be declared void, or may be judicially modified to carry out the testatrix’s intent.
3. Whether West Virginia should recognize an equitable modification doctrine for certain non-charitable devises and bequests that otherwise fail under the rule against perpetuities.
4. Whether separate guardians ad litem are required when will construction may create distinct, adverse classes of unborn beneficiaries.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the summary judgment declaring the trust void.
- The court held an executor is a necessary party to, and may appeal from, a declaratory judgment concerning will construction or estate administration.
- The court adopted an equitable modification doctrine permitting judicial modification of perpetuities-defective non-charitable devises and bequests when specified conditions are met.
- The court concluded the trust should be modified to comply with the rule against perpetuities, rather than invalidated, because modification would preserve the testatrix’s general plan while curing the temporal defect.
- The court held that when will construction may create distinct classes of unborn beneficiaries with adverse interests, separate guardians ad litem should be appointed for each class.

## Legal Principles

- An executor is a necessary party to declaratory litigation over will construction or estate administration and has standing to appeal the resulting judgment.
- A perpetuities-violating non-charitable devise or bequest may be equitably modified to comply with the rule if:
  - the testator’s intent is expressed or readily ascertainable;
  - the testator’s general intent does not violate the rule against perpetuities;
  - the offending particular intent is not critical to the overall testamentary scheme; and
  - the modification effectuates the general intent, avoids intestacy, and conforms to the policies underlying the rule against perpetuities.
- Courts may cure a perpetuities defect by adjusting the temporal provision (e.g., reducing an excessive term) while preserving the dispositive scheme.
- Where will construction may create distinct classes of unborn beneficiaries whose interests are adverse, each class should be represented by its own guardian ad litem.

## Conclusion

The court rejected automatic invalidation of a perpetuities-defective private testamentary trust, held that executors may litigate and appeal will-construction declaratory judgments, adopted a four-part equitable modification test to cure certain perpetuities violations, and required separate representation for adverse classes of unborn beneficiaries.


Berry v. Union Nat’l Bank, 262 S.E.2d 766 (W. Va. 1980)