
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Commonwealth of Virginia, Department of Mental Health and Retardation v. First & Merchants National Bank, as Trustee under the will of Floyd S. Bennett, deceased, et al.
    March 19, 1979
    Ended File No. K-998
   By JUDGE WILLARD I. WALKER

This cause, which has been regularly matured, set for hearing and docketed, came on January 23, 1979, to be heard upon the bill of complaint and order adding parties defendant, taken for confessed as to Floyd S. Bennett, Jr., Victoria B. Firor, Edgar B. Bennett, Edgar B. Bennett, Jr., Anne E. Bennett, Dorothy B. Black, Kenneth L. Black, III, William B. Black, Cynthia B. Stuart, Hardwick Stuart, Jr., and Cynthia S. Mock, defendants who have accepted service of process, twenty-one days having elapsed since acceptance and such defendants still failing to appear, plead, answer or demur; upon the joint and several answers of First & Merchants National Bank and Floyd S. Bennett, Jr., as Trustees under the will of Floyd S. Bennett, deceased, and of Robert M. Firor, Aimee E. Firor, Stephen E. Bennett, Laura Stuart, Sarah Stuart and Walter E. Mock, III, infant defendants, by Dennis I. Belcher, their guardian ad litem; upon the evidence this day heard ore tenus by agreement of counsel; and was argued by counsel.

On consideration whereof, the Court finds from the evidence the following facts:

1. Since November 11, 1945, Margaret Douglas Bennett has been a resident of an institution operated by the Commonwealth of Virginia, namely the Lynchburg Training School and Hospital, Lynchburg, Virginia.

2. The Commonwealth has provided the support of Margaret Douglas Bennett since April 1, 1973, and for such support she is indebted to the Commonwealth in the amount of $18,274.80.

3. First & Merchants National Bank and Floyd S. Bennett, Jr. are Trustees of the trust created under the will of Floyd S. Bennett, deceased, for the benefit of his daughter, Margaret Douglas Bennett. The will was filed as an exhibit with the other suit papers in this cause.

4. Floyd S. Bennett executed his will when he knew his daughter would require institutionalization.

5. The Trustees hold assets valued at approximately $13,000 in the trust created under Floyd S. Bennett's will.

On further consideration whereof, the Court doth follow the opinion of the Honorable Brockenbrough Lamb set forth in the suit George E. Haw, Administrator d^.b_.n^.c^.t_.a^. and substituted Trustee under the will of Columbia Ella Pedin, deceased v. R. W. Haw, et al., Trustees of Presbyterian Church and adjudge, order and decree as follows:

A. The trust created under the will of Floyd S. Bennett for the benefit of his daughter, Margaret Douglas Bennett, is a discretionary trust and is not part of the estate of Margaret Douglas Bennett within the meaning of Section 37.1-105 of the Code of Virginia.

B. First & Merchants National Bank and Floyd S. Bennett, Jr., as Trustees under the will of Floyd S. Bennett, deceased, have properly exercised their discretion in refusing to make distributions to the Commonwealth of Virginia notwithstanding that the Commonwealth has provided the support of Margaret Douglas Bennett.

C. The relief prayed for in the complainant's bill is denied.

D. First & Merchants National Bank and Floyd S. Bennett, Jr., as Trustees under the will of Floyd S. Bennett, deceased, shall be authorized to pay from the principal of the trust estate the costs of this proceeding and the sum of $800.00 to McGuire, Woods & Battle, counsel to the Trustees, for their services in defending the Trustees in this suit, in each case to be charged to principal as an expense of administering the trust estate.  