Keller v. Keller
In Keller v. Keller, 169 W. Va. 372, 287 S.E.2d 508 (1982), the Court encountered a scenario in which a testator had willed his property in equal shares to his eight children. The testator had also provided a spendthrift trust for the share of one of the children and expressly provided that on the death of that child his share should go to the other surviving children, all named individually in the residuary clause. Specifically, the testator provided:
"I further direct that should George W. Keller die while the said trust fund is in existence that the said Trustee shall pay his funeral expenses from said fund and any balance remaining in said trust fund to pass outright to such of the brothers and sisters of said George W. Keller as are then living, share and share alike." (Id. at 374, 287 S.E.2d at 509.)
The child for whom the spendthrift trust had been created predeceased the testator.
The Court, analyzing the antilapse statute, concluded that the deceased child's share should pass to the surviving children. While "the trust provisions of the will had no specific application," because the child for whom the trust had been created had predeceased the testator, the Court found that the trust provisions of the will expressed a general intent that the brothers and sisters surviving George W. Keller would take his share. It is clear that had the trust been in existence after the death of the testator, such brothers and sisters, rather than the appellants, would have taken George W. Keller's share. (169 W. Va. at 381, 287 S.E.2d at 513.)
Based upon the obviously intended alternate distribution, the antilapse statute did not apply to transfer the disputed share to George W. Keller's lineal descendants. Id.