## Facts

- A testator created a testamentary trust for his two sons, naming a bank as trustee.
- The trust authorized the trustee to use trust earnings, “or principal if said accumulations are insufficient,” to provide for the sons’ “comfort and support” when “necessary.”
- The instrument permitted unequal advances to one son, provided any excess would be charged against that son’s share.
- One son, an income beneficiary receiving monthly distributions, requested $100,000 from principal from a corpus of about $260,000.
- He asserted he was in serious financial distress, had approximately $48,000 in debt, had virtually no assets, and suffered from a chronic illness impairing his ability to earn.
- The trustee refused to invade principal, asserting the existing monthly income was sufficient and that the trust clause gave it broad discretion.
- The trustee introduced evidence that the beneficiary had previously squandered substantial sums, arguing his distress resulted from financial mismanagement.
- The trial court upheld the trustee’s refusal; the beneficiary appealed.

## Issues

1. Whether a trustee with discretionary authority to use income and, if insufficient, principal for a beneficiary’s “comfort and support” abuses its discretion by refusing any invasion of corpus despite evidence of serious financial and medical need.
2. Whether, and to what extent, a court may order invasion of principal to fulfill the support purpose while accounting for co-beneficiaries’ and contingent beneficiaries’ interests.

## Decision

- The Supreme Court of Appeals of West Virginia reversed and remanded.
- The court held the trustee’s categorical refusal to invade principal constituted an abuse or misapplication of discretion under the trust’s support provision.
- The court ordered a limited invasion of principal sufficient to meet legitimate support needs, rather than granting the full $100,000 requested.
- The court directed that any principal advanced be handled consistently with the trust’s mechanism charging unequal advances against the recipient beneficiary’s share.

## Legal Principles

- Trustee discretion, even when expressed in permissive terms (e.g., “may,” “if necessary”), is subject to equitable review for abuse, bad faith, or failure to act consistent with the trust’s purposes.
- A support trust must be administered to carry out the settlor’s intent to provide for the beneficiary’s comfort and support; income-only treatment is improper when the instrument authorizes principal invasion and necessity exists.
- When trust language authorizes use of principal if income is insufficient, serious financial distress and health-related impairment of earning capacity may require some invasion of corpus.
- A trustee must exercise discretion rather than treat discretion as a default refusal; protecting other beneficiaries does not justify denying all support when the trust contemplates differential advances with later accounting.

## Conclusion

The court required a limited invasion of trust principal because the support clause contemplated principal distributions when needed and the trustee’s refusal to consider any invasion, despite substantial evidence of current necessity, frustrated the trust’s support purpose and amounted to an abuse of discretion.


Emmert v. Old Nat'l Bank of Martinsburg, 246 S.E.2d 236 (W. Va. 1978)