Could a judge serve as trustee of a trust created by a late uncle’s will?

Plain-English summary

A judge’s uncle had died, leaving a trust for his widow and child and naming the widow and judge as trustees. The judge asked whether former Canon 5D permitted the role.

The Commission reviewed the Canon’s family exception and case law defining “family.” It concluded that service for the late uncle’s estate was not precluded, subject to the Canon’s restrictions: no interference with judicial duties, no likely proceedings ordinarily before the judge, and the same financial-activity limits that applied personally.

Currency note

This opinion was issued in 1989 under the earlier Judicial Code of Ethics, before West Virginia adopted its 1993 Code and its 2015 Code of Judicial Conduct, effective December 1, 2015. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on the letter's conclusion.

Common questions

Q: Could the judge serve as trustee?

A: Yes, for the uncle’s family trust, subject to Canon 5D’s restrictions.

Q: What conditions applied?

A: Service could not interfere with judicial duties, create prohibited litigation involvement, or evade the judge’s personal financial restrictions.

Background and rules framework

Former Canon 5D allowed a judge to act as fiduciary for a family member only if judicial duties were not impaired, with further litigation and financial restrictions.

Citations and references

West Virginia Judicial Code of Ethics (former):

• Canon 5D and subsections (1) and (2), fiduciary activities.
• Watson v. Burley, 105 W. Va. 416 (1928), cited on the meaning of family.

See also

• WV JIC Advisory Opinion 1990-02: Park foundation board

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1989-01, redacted
• Code adoption date: West Virginia JIC 2015 Annual Report

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
Room Ew400, State Capitol

Charleston 25305

Februa ry 21, 1989

Re: JIC Advisory Opinion 1989-01

Dear

Your letter dated Februa ry 7, 1989, to Chief Justice

seeking an adviso ry opinion has been
referre d to the Judici al Invest igation Commis sion for respon se. In your corresp ondenc e you state that your uncle, . who was your mother 's brothe r, died on January 24, 1989.
You state that he left a sizable estate and by his will created a trust for his widow and only child. The trust was created mainly for income tax purpos es, and in his will he named his widow and you as trustee s. You indica te that the duties of the trustee s set forth in the will are detaile d and becaus e of the size of the estate will involve some attenti on on your part. You seek an adviso ry opinion on whethe r the Judici al Code of Ethics , Canon 5D, will permit you to serve as trustee .

Canon 5D of the Judici al Code of Ethics states in perti- nent part:

D. Fiduci ary Activi ties. A judge should not serve as the execut or, admin istrato r, truste e, guardia n, or other fiducia ry, except for the estate , trust, or person of a member of his family , and then only if such service will not interfe re with the proper perform ance of his judici al duties . 'Membe r of his family ' include s a spouse , child, grandc hild, parent , grandp arent, or other relativ e or person with whom the judge mainta ins a close famili al relatio nship. As a family fiducia ry a judge is subjec t to the follow ing restric tions:

(1) He should not serve if it is likely that as a fiducia ry he will be engage d in procee dings that would ordina rily come before him, or if the estate ,

February 21, 1989
Page 2
trust, or ward becomes involved in adversary proceedings in the court on which he serves or one under its appellate jurisdiction.
(2) While acting as a fiduciary a judge is subject to the same restrictions on financial activities that apply to him in his personal capacity.
It can be seen that Canon 5D of the Judicial Code of Ethics permits a judge to serve in a fiduciary capacity for a member of his family which the Canon delineates as spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.
The Supreme Court of Appeals of West Virginia defined the word "family" in Watson v. Burley, 105 w. Va. 416 (1928), as follows:
The word family has two very distinct meanings:
First, the collective body of persons, who live in one house and under one head or manager; and it may include in this sense parents, children, servants, or in some cases even boarders or lodgers; second, those who descend from one common progenitor; and in this sense it cannot include the parents and has no reference to the fact of residents in one house and under one head.
When used in its first sense, it rarely includes boarders and lodgers; sometimes includes servants; generally includes children; but is sometimes con- fined to the wife and infant children or those dependent on the head of the family by reason of their relations independent of contract. The word has this comprehensive, or more or less limited, since, as will most effectually carry out the purpose of the document, in which it is used.
105 w. Va. 419. Courts and other jurisdictions have generally followed this definition which defines family as a collective body of persons who live in one house and under one head or those individuals who are related by blood or marriage.
Some cases define those individuals living in a common household with a common manager as a family. A family is a body of persons who live in one house under one head including parents, children, servants, lodgers, or boarders, or a group of persons

February 21, 1989
Page 3

sharing common dwelling and table. Pesqueira v. Talbot, 441 P.2d, 73. In construing a zoning ordinance, the New Hampshire Court held that the term "family" when defined simply as a housekeeping unit is not limited to persons related by blood or marriage but includes also unrelated groups. Town ·of Durham v. White Enterprizes, Inc., 348 A.2d, 706. Under this criteria the courts have generally held that a family is a collective body of persons who live in one house and under one head or manager; a household including parents, children, and servants and as the case may be lodgers or boarders. Edward Hines Lumber Company v. Smith, 172 N.E.2d, 429.
Other jurisdictions have also followed the definition of family which includes descendants of common relatives or persons related by marriage. In common parlance and usage the word 11 family 11 more frequently connotes the existance of a martial or blood relationship or a legal status approximating such a relationship. Hicks v. Hatem, 289 A.2d, 325. In its most common use the word 11 family 11 implies father, mother, and children or immediate blood relatives. In Re Noel's ·Estate, 499 P.2d, 1072.
In conjunction with defining the term "family 11 some courts have defined the term "family relationship." In McMahon v. Auger, 357 P.2d, 374, the Idaho Supreme Court stated that the term 11 family relationship" as used in connection with presumption that services of one family relative to another are presumed to have been rendered gratuitously means a collective body of persons who form one household unit under one head and one domestic government and who have reciprocal, natural, and moral duties to support and card for one another. See also Sturgeon v. Wideman Estate, 608 S. W. 2d, 14 0 •

A review of decisions in this area demonstrates that the word "family," generally defined as individuals or a group of individuals who fall within one of the two criteria set forth by our Court in Watson v. Burley, supra, in the holdings of other jurisdictions, is a flexible term which often makes judicial construction difficult. It is one of indefinite conception which give rise to varying definitions. When a court is called on to give a specific meaning to resolve a particular question of law, judicial construction must relate to, and be consistent with, the context in which the word "family" is found. Planning and Zoning Commission of the Town of Westport v. Synanon Foundation, Inc., 216 A.2d, 442. In applying this rule of judicial construction to your inquiry, the language contained in Canon SD should be dis- cussed.
The Canon states that a judge should not serve as an executor, administrator, trustee, guardian, or other fiduciary,

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unless for the estate, trust, or person of a member of his family, and then only if such service will not interfere with the proper performance of his judicial duties. There are two conditions which must be met before a judge can serve as an executor, administrator, trustee, guardian, or other fiduciary. First, he must serve in one of those positions for a member of his family. Second, even if a judge wishes to serve in such a position for a member of his family he can do so only if such service will not interfere with the proper performance of his judicial duties.
Based upon a review of Canon SD and the decisions of this state and other jurisdictions which define "family" and "family relationship" you would not be precluded from serving as a trustee for your late uncle's estate subject to the restrictions set forth in the Canon.
Very truly yours,

Lfk...w ~- ~~-:;
Thomas B. Canterbury
Chairman
TBC/bl