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P is an income beneficiary of a testamentary trust established by the will of his father, Allen R. Emmert. The testamentary trust states: Earnings accumulated from the operation of the said trust estate, or principal if said accumulations are insufficient, may be used by D for the purpose of adequately providing for the comfort and support of either or both of my said sons, if necessary at any time. Advances or expenditures for either son in excess of advances or expenditures for the other son shall be charged against the share of the one for whom the advances or expenditures are made. P contends that this provision authorizes the trustee to invade the trust corpus and make a distribution to him of $100,000, which amount will adequately meet his current needs. D maintains that to the extent it has the discretion to invade the trust corpus, it has properly refused to do so. D contends that it does not have the discretion to distribute $100,000 to P because such a large distribution of principal would defeat the purposes of the trust. D claims it would also have to make the same distribution to P’s brother, Allen R. Emmert, Jr. The trust states: I [testator] desire that each of my sons be treated equally in the payments, advances and the distribution of income and the corpus of said trust. The trust assets are valued at approximately $230,000. This would require D to liquidate a store building worth $55,000 and violate the trusts special provision which states: I direct my Trustee to hold my merchandise store building property, located at 108-110 North Queen Street, Martinsburg, West Virginia, as a part of my trust estate and use the same in the operation of said store business, as is hereinafter provided, or rent the same. Also with just $30,000 left not enough income would be generated for the trustee to make the required $250 monthly payments to each of the testator's sons. But the trust provided for a pro-rata reduction of the monthly payments. Another specific trust provision the trustee might be unable to carry out is the following: If either or both of my sons are married and die without issue surviving, but leave a widow surviving, said widow of the deceased son or sons shall be paid the sum of $25,000.00). D feels a fiduciary responsibility to retain at least enough trust assets to meet this potential $50,000 obligation. P claims he suffers from an incurable disease known as Mallory-Weiss syndrome. P is apparently unable to obtain employment in sales, for which he is qualified by virtue of his background, education, and experience, or even to hold a steady job as a taxicab driver. P is $48,000 in debt. His debt was an accumulation of hospital and other medical expenses, moving and storage charges, back rent, department store arrears, and personal loans. P owned no assets that could be used to reduce his debt or meet his other pressing needs. His only financial resources immediately available are the $250 monthly payments provided by the testamentary trust and one-half the income from an inter vivos trust which had assets at the time of the proceeding below of approximately $60,000. D believed that P has adequate resources to provide for his own comfort and support without invasion of the testamentary trust corpus. Much of D's evidence was calculated to show that over the years P had received large sums of money from his father's estate and squandered it all. The court ruled for D and P appealed.

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