
    CIRCUIT COURT OF ACCOMACK COUNTY
    Department of Mental Health v. G. Lewis Leonard, Trustee
    December 4, 1981
   By JUDGE N. WESCOTT JACOB

I have reviewed the memorandums submitted by counsel, together with the authorities cited therein. Unfortunately, there are no Virginia cases in point.

I am of the opinion that the trust created by the will of Perry Brimer was created to meet the needs of Annie J. Brimer. Since the evidence does not disclose to the contrary I assume that it is necessary that Annie J. Brimer be confined in the state institution and that her expenses are reasonable. I, therefore, think that the Trustee must pay what "her needs may require."

The discretion given the Trustee is not an uncontrolled one, as pointed out in the case of Rinker's Admr. v. Simpson, 159 Va. 612 (1932). Even though the Trustee is given discretion I think he must pay amounts that are necessary for Mrs. Brimer’s maintenance and support.

For this reason, I would give judgment to the Department of Mental Health for the amount sued for.  