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HomeMy WebLinkAbout97-00526 IN RE: frEOR(;E F. (;ARDNER INTER VIVOS TRUST IN THE COURT OF COMMON PLEAS OF CIIMBERLAND COUNTY, PENNSYL VANIA ORPHANS' COllRT DIVISION TRUSTEE APPOINTMENT ;),/-.. q '/ - ,';;d..~' Assigned to: ,.1. ORDER APPOINTING SUCCESSOR TRUSTEE rl+ \ ANDNOW,this~ -, day of,_~-:tj\...~ ,1997, upon consideration of the Petition of Mary Anne Adams, it is hereby ORDERED Rnd DECREED that: 1. Mary Anne Adams is appointed Successor Trustee to the George F. Gardner Trust. with all the powers and liabilities of the original trustee, David Gardner; and 2. Mary Anne Adams is not required to furnish any bond or security In accordance with the provisions of the Tl'lIst instrument. lk--1E-, ~ . fj: 0 .;;( .~ r~ 0 'l~ (-.1 e\.; t'-. ,.- ...'" ~ -, , , L~l r-'-- - ,\1 (\) l;.. P" :;} 0: (3 U ". oC, I IN REI GEORGEF. GARDNER INTER VIVOS TRUST IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLV ANIA ORPHANS' COURT DIVISION TRllSTEE APPOINTMENT Assigned to: , ~J. ORDER ANDNOW.th\s_ ___day of __ ,1997,upon consideration of the Petition of Mary Anne Adams, it is hereby ORDERED Rnd DECREED that: A hearing take place on' 1997 in Court Room Cumberland County Courthouse for the further consideration of the Petitioner's request. ,of the - ,.1, ... . 5., I'ara~raph \3 of the Trust provides that CCNB Bank (now "I'NC Bank") shall be appointed Successor Trustee if the original trustee is unablc or unwi\lln~ to serve as trustee. 6. I'NC Bank has declincd to accept appointment as Successor Trustee. A copy of I'NC's declination is attached as Exhibit "e" and incorporatcd herein by rcference. 7. The Trust provides that the Benetieiary ofthc Trust shull be George Gardner's wife and that the contingent beneticiaricfo shall bc OCOl'gc Gardner's childrcn. 8. The partit\s in intcrest to thc Trust arc: a. Mrs. Elizabeth Gardner. Beneticiary Residing at 500 Glendalc Street, Carlisle, Pennsylvania 17013 b. Mr. Michael Churles Gardner, Contingent Bencticiary Residing !It 1'.0, Box 3127. Seminolc, Florida 33775 c. Mrs. Nancy Gardner Margolis, Contingent Beneticlary Residing at 911 Twin Oaks Drive,Potomac, Muryland 20854 d. Ms. Jennifer Lou Gardner. Contingent Benetieiary Resldin~ at 2611 Hollywood Court, Mount Penn. Pennsylvania 19606 e. Mr. Jon Christopher Gardner, Contingent Beneficiary Residing at 1083 Oakvillc. Newville, Pehnsylvania 17241 I, f. Mr. David Allen Gardner, Contingent Beneficiary Resldin~ at HER-I, Box 5075, Keaau Hawaii 96749 g. Mrs, Mary Anne Adams, Contingent Beneficiary Residin~ ut 901 Ilillside Drivc Carlisle, P A 17013 9. All the parties in interest to the Trust are .I'1Ii./lIrl.l' and have agreed to the Appointment of Mary Anne Adams as Successor Trustee. Aftidavits of Consent to the appointment of Mary Anne Adams as Successor Trustee are uttached as Exhibits "I)" through "I" and incorporated herein by reference. 10, All the parties in interest are adults and have acknowledged their understanding of the significance of the appointment of a Successor Trustec. II. The Settlor, George F. Gardncr. is not u purty in interest. The Trust is irrevocable and does . not provide for the Settlor to retain a powcr of uppointmcnt for a succcssor trustee in the event the office of trustee becomes vacant. In order to rctain the irrevocable status of the Trust, Mr. Gardner has not executed an Affidavit of Consent. < , "', . L~OCABLE TRUST AGREEMENT MADE THIS 9th of November, 1962, between GEORGE F. GARDNER, presently of Cumberland County, Pennsylvania (hereinafter "Settlor"), and DAVID A. GARDNER, prooently of perry County, Pennoylvania (hereinafter "Fiduciary(s) Hereunder"). Settlor hereby transfers to the Fiduciary(s) Hereund~r the assets listed on the schedule annexed hereto and made a part hereof, to be held by the Fiduciary(s) Hereunder, and their successors and assigns, together with any other property that may be from time to time added hereto (such assets, and such other property, being hereinafter called the "principal"), IN TRUST, nevertheless, for the following uses and purposes and upon the following terms and conditions: 1. During the lifetime of the Settlor's wife, the Fiduciary(s) Hereunder shall pay the net income of the Trust to her and shall have the power to pay to, or apply for the benefit of, the wife of the Settlor, such amounts of the prin- cipal of the Trust as the Fiduciary(s) Hereunder, in their sole discretion, shall from time to time determine to be necessary and appropriate for the education, comfort, care, maintenance and support of the wife of the Settlor, and of the Settlor's dependent children, provided that none of the principal of this Trust shall be paid or applied for the benefit of the '- . wife of. the Settlor unless the principal of the marital deduc- tion trust created under the will or a trust created by the Settlor for the benefit of the wife of the Settlor has been exhausted, or there was no such mad tal deduction trust established. The wife of the Settlor shall have the power, at any time, and from time to time to make gifts of the principal of this Trust estate, in whole or in part, and in any manner . and in such proportions as she sees fit, to the issue of the Settlor, or any of them, as she may 1n writing set forth, but not including gifts to the wife of the Settlor herself, nor to her estate, nor to the creditors of herself, nor the creditors of her estate, provided that no such allowable gift may be applied or dietributed for the health, education, support, or maintenance of any issue of the Settlor which the wife of the Settlor is legally obligated to support. and maintain. 2. After the death of the latter to die of the settlor and his wife, and 'as long as there is any living child of the Settlor under twenty-five (25) years of age, as much of the net income and the principal as the Fiduciary(s) Hereunder, in their sole discretion, may from time to time think desirable, shall be distributed to such one or more of the children of the Settlor, in such amounts or proportions as the Fiduciary(s) Hereunder may from time to time think appropriate, and any net income not so distributed shall from time to time be accumulated - 2 - . "!"'...._. .,~ _.,.F~ "; ,,__.,'., . . , .nd added to the principal. The primary concern of the Settlor is for the care and education of his children until they become self-supporting, and, while the general plan of the Settlor is that his children be treated alike, the Settlor recognizes that needs will vary from person to person and from time to time. Accordingly, all distributees under this paragraph need not be treated equally or proportionately! one or more of the eligible distributees may be wholly excluded from any or all periodic distributions I the pattern fOllowing in one distribution need not be followed in others, income may be accumulated to whatever extent and in whatever amounts the riduciary(s) ~ereunder may think appropriate, and, the Fiduciary(s) lIereunder may give such consideration to the other resources of each of the e11g ible distributees as they may think appropriate. After the death of the latter to die of the Settlor and his wife, and as soon as there is nO living child of the Settlor under twenty-five (25) years of age, the then remaining principal of this Trust shall be divided into equal shares, so that there will be one share for each child of the Settlor who is then living or then deceased, and each share shall be kept invested as a separate trust, and thereafter during each such child's lifetime, the net income from his or her separate trust shall be paid to him or her, in quarterly or other convenient installmentsl as much of the - 3 - prinoipal of his or her trust as the Fiduciary(s) Hereunder from time to tirne think desirable -taking into account funds available from other sources - for the health, support, main- tenance or education of that child, or any of his or her descendants, either shall be paid to that person, or shall be applied directly for the purposesl and, each child shall have the right to withdraw up to one-half of the principal of his or her separate trust at anytime after reaching thirty (30) years of age, and the balance thereof at anytime after reaching thirty-five (35) years of age (the maximum amount subject to withdrawal before a child reaches thirty-five (35) years of: age being based on the market value of the principal of that child's separate trust at the time of his or her first request after reaching each particular age). At each child's death (or at the aforesaid time for the settling apart of shares in the case of a child who dies before that time), any then-remaining principal of his or her separate trust shall be paid to such one or more persons or organization - expecting only such child's estate, his or her creditors, and the credi- tors of his or her .state - on such terms as he or she may appoint, by a will specifically referring to this power of appointment, or in default of appointment, or insofar as it is not effectual, to such child's then-living issue, per stirpes, or, in default of such issue, to the then-living issue, per - 4 - stirpes, of the settlor (any portion thus accruing to a person for whom principal is then held in a separate trust hereunder being added to and thereafter treated as part of such principal). 3. Notwithstanding anything to the contrary herein con- tained, in the event that the wife of the Settlor survl.ves the settlor, and in the further event that any part of the prin- cipal of this Trust is includible in the gross estate of the settlor for purposes of federal estate tax, and if in such circumstances the value of the property qualifying for the marital deduction for purposes of federal estate tax under the will of the Settlor, or otherwise, totals less than the amount which is exactly sufficient to reduce the federal estate tax falling due because of the death of the Settlor to the lowest possible figure _ then such portion of the principal of this Trust as may be necessary to make up the difference, sO that such marital deduction will be an amount equal to the amount which is exactly sufficient to reduce such federal estate tax falling due because of the death of the Settlor to the lowest possible figure, shall be set apart from this Trust in a separate trust for the exclusive benefit of the wife of the settlor. During th~ lifetime of the wife of the Settlor, the entire net income from such separate trust shall be paid to her, at least quarter ly, as much of the principal thereof as - 5 - " the Fiduciary(s)'Hereunder may from time to time think desirable for her welfar.e, comfort or support shall be paid to her, and she shall have the power to require the Fiduciary(s) Hereunder to make productive any unproductive property held in such separate trust (or to dispose of such property and rein- vest the proceeds in productive property within a reasonable time). On the death of the wife of the Settlor, any increase , in death taxes or administration expenses in her estate caused by the inclusion of the assets of such separate trust in her estate for purposes of federal estate tax shall be paid out of such assets, and a written statement by her executor or administrator of the amounts thus payable may be accepted by the Fiduciary(s) Hereunder as being correct, and the balance . of the assets of such separate trust shall be made a part of the then other principal of this Trust. In calculating the amount to be set aside for the separate trust under this paragraph 3, the value of any property not passing under this instrument which qualifies for the marital deduction shall be taken into consideration, and the amount thereof shall be reduced to the extent that the estate of the settlor would lose the benefit of any credits available against such federal estate tax in the estate of the Settlor. The Fiduciary(s) Hereunder shall elect to qualify the principal of any separate trust under this paragraph 3 as "qualified terminal interest - 6 - property" and the Settlor intends that the income interest of his w'fein such separate trust shall qualify as "a qualifying income interest for life" within the meaning of Section 2056 of the Internal Revenue Code of 1954, as amended. No property ineligible for the marital deduction shall be used to satisfy such deduction. Property distributed in kind in satisfaction of such marital deduction shall be distributed at the lower of. (i) its value at the time of distribution and (ii) either the value finally put on it for purposes of federal estate tax in the estate of the Settlor, or if it was acquir.ed after the death of the Settlor, its adjusted federal income tax basis. The Fiduciary(s) Hereunder shall have the right and power to apply directly for the benefit of the wife of the Settlor all sums to which she is entitled from the separate trust under this Paragraph 3, if she is, in the opinion of the Fiduciary(s) Hereunder, disabled by advanced age, illness, or other cause. Any provision of this Trust lo the contrary notwithstanding, the Fiduciary(s) Her.eunder, as to funding, and dealing otherwise with the separate trust under this Paragraph 3, shall not have any right to allocate any property received or charge incurred, as to such separate trust, to principal or income or partly to each, without regard to any law defining principal and income, nor to distribute in kind to such separate trust if such distribution would affect satisfaction of the marital deduction. - 7 - " 4. Unless otherwise provided for herein, any income or principal payable to any beneficiary who is a minor, or to a beneficiary who, in the sole judgment of the Fiduciary(s) Hereunder, is mentally or physically incapacitated, shall be held in a separate trust by the Fiduciary(s) Hereunder during such minority or incapacity. The Fiduciary(s) Hereunder are authorized, in their exclusive discretion, to expend f~om income or principal of each such separate trust, such sum(s) as may be necessary for the comfort, care, maintenance, sup- port and education of such minor or incapacitated beneficiary, directly, without the intervention of a guardian or committeel or the Fiduciary(s) Ilereunder may pay the same to any person having care or control of said beneficiary, or with whom such beneficiary resides, without any duty on the part of the Fiduciary(s) Hereunder to supervise or inquire into the appli- cation of the funds by any person to whom payment is so made. Any income and principal not so expended by the Fiduciary(s) Hereunder shall be retained by the Fiduciary(s) Hereunder and paid to the beneficiary upon termination of the incapacity (including minority), or to the estate of the beneficiary, if such beneficiary dies before reaching the age of twenty-one (21) years, or while still incapacitated, as the case may be, unless otherwise provided herein. - 8 - 5. The Fiduciaty(s) Hereunder are hereby, for purposes of the Trust herein created, vested with all right, title arid interest in and to any life insurance policies and rights under group term life insurance certificates ever transferred to this Trust, and are authorized and empowered to exercise all or any of the options, benefits, rights, privileges, and interests under the policiesl and any receipts, releases, and other instruments executed by the Fiduciary(s) Hereunder in connection with the policies shall be binding and conclusive as to all persons entitled to any proceeds hereunder. 6. Any policies of insurance ever transferred hereunder, and all additional policies which may ever be transferred hereunder, shall be made payable to this Trust. For the pur- pose of collecting monies due under such policies, the Fiduciary(s) Hereunder shall have the power to make proper proofs and releases to enable them to receive the proceeds thereof, to institute any suit or proceeding and to perform any and all of their acts necessary or appropriate for accomplishing such purpose. The Fiduciary(s) Hereunder shall not, however, be obliged to institute or maintain any litiga- tion to enforce payment of any policy until they shall have been indemnified to their satisfaction. The receipt of the Fiduciary(s) Hereunder shall be in full acquittance and discharge of the company issuing the policy, and upon payment ~ 9 ~ of the proceeds thereof to this Trust, f:luch company shall be exempted from all liability as to the proper application of the trust fund. , Expenses incurred in making such collections shall be a proper charge against this Trust. 7. The Fiduciary(s) Hereunder shall be under no duty or responsibility to pay any premiums or other charge required to continue in force the above-mentioned policies, or any addi- tions thereto, or substitutions therefor, or to procure renewals thereof, or to see that the policies are kept in forcel nor shall the Fiduciary(s) Hereunder have any respon- sibility with respect to any indebtedness of the Settlor now existing to the respective insurance company(s), or to a lending j,nstitution with which the policies have been depo- sited as collateral. 8. The interests of beneficiaries hereunder in the income and principal of this Trust estate shall not be subject to anticipation or to voluntary or involuntary alienation. 9. Unless otherwise provided herein, the Fiduciary(sl Hereunder shall, in addition to the powers given by law, have the following powers, both as to principal and income I (al TO retain, without liability, any investment which may become part of ,the principal created hereunder and to make such investments (including bona - 10 - .....,- ,7'" insurance. All such additions shall be subject. to all of the terms and conditions of this agreement. 11. The af:oregoing provisions of this Trust notwith- standing, if ever an asset of the Trust consists of property which is being leased by the Trust to a business in which the Settlor has an interest, or had an interest during his life- time, or a business which is the outgrowth or extenuation of any business in which the Settlor had an interest during his lifetime, or a business in which the wife of the Settlor or any child of the Settlor has an equity interest, such property shall be maintained as an asset of the Trust as long as it is being leased to any such business, and shall not be subject to distribution to any beneficiary of the Trust, but rather, any such beneficiary shall continue to be a beneficiary of such property through the Trust, and the term of the Trust shall be extended as long as is necessary to permit the Trust to con- tinue owning any such property. 12. This Trust shall be irrevocable, and not subject to any amendment or alteration. 13. If ever the initially appointed Fiduciary Hereunder is unable or unwilling so to serve, or to continue so serving, CCNB Bank, N.A. shall serve in his place. 14. The compensation of any corporate fiduciary when acting hereunder shall be in accordance with its standard schedule of fees at such time. - 14 - .1S; Any fiduciary acting hereunder shall not be required to enter bond or other security in any jurisdiction in which said fiduciary may be called upon to act. 1'. All references herein to "wife" of the Settlor shall mean such person who is the spouse of the Settlor at any given point in time, snd upon the death of the Settlor, shall mean such person who survives the Settlor as his widow. 17. In the event that the Settlor creates another trust or trusts, whether by will or by agreement, the provisions of which arc substantially the same as those of the trust or trust shares created hereunder, the Fiduciary(s) Hereunder, in their discretion, may, after the death of the Settlor, merge the trust or trusts created hereunder with such other trust or trusts, the Trust created hereunder thereafter to be held, administered and distributed as part of such other trust or trusts. It is expressly provided, however, that in the event of such merger of trusts, no part of this Trust (including principal and undistributed income) shall be used for the payment of any taxes, debts, legacies, expenses of administra- tion, or other obligations enforceable against the Settlor or his estate, it being the intention of the Settlor that none of the property comprising this Tr.ust shall be includible in the gross estate of the Settlor for purposes of federal estate tax, or subject to any inheritance or estate tax. - 15 - . . 18. The Commonwealth of PennElylvania is hereby designated as the situs of this Trust herein created, and all questions pertaining to the validity and construction of this Trust, or the administration hereunder, shall be determined in accordance with the laws of pennsylvania, regardless of the jurisdiction in which this Trust may at any time be administered. IN WITNESS WHEREOF, GEORGE F. GARDNER, as Settlor has hereunto set his hand and seal and DAVID A. GARDNER, as the initial Fiduciary Hereunder, has hereunto set his hand and seal, the day and year first above-written. WITNESS: :~N". . /5'TT_O' ~ J&1A;;I ({'!. ))/atd.J ~d.M. <. r [JMUlJdL DAVID A. GARDNER ~CSLG~ INITIAL FIDUCIARY HEREUNDtR " \- M 16 - n.""" ai-' ..... ..\-. .... ,r'-.'.-". "L."~' J91,fn/kow/tdw/.. OMNIBUS RESIGNATION AND DESIGNATION OF SUCCESSOR TRUSTEES On this, the 4th day of February, 1994, the undersigned, David A. Gardner. does hereby: I. Resign, effective immediately, his position as Trustee (or Co- Trustee. as the case may be) under the following: (a) Trust under Will of Marian B. Gardner (including all of the various trusts created thereunder. refen-ed to therein as Trust A. Trust B. Trust C and Trust D. respectively); (b) Revocable Estate Plan Trust Agreement of Marian B. Gardner dated September 24, 1979: and (c) Irrevocable Trust Agreement of George F. Gardner dated November 9, 1982. David A. Gardner does hereby further agree never to serve in any fiduciary capacity in respect of the above Trusts or any other Trust established by George F. Gardner or the Estate of George F, Gardner, 2. Designate and appoint Mary Anne Adams as his successor (herein "Successor Trustee") under the aforesaid Trusts. 3. Agree to immediately turn over all records of the aforesaid Trusts to the Successor Trustee and further to coopemle fully with Successor Trustee to pennit Successor Trustee to assume such duties. In particular. David A. Gardner shall provide keys and all other personal property relating to or in any way having to do with trust property to Successor Tmstee. 4. Agree to cause to be prepared accountings of his tmsteeships of the aforesaid Trusts. and to present such accountings to the Successor Trustee and the benet1ciaries of the aforesaid Trusts for review, such accountings to be completed and 1,0 presented as soon as possible. Pending the prepamtion and review of such accountings. David A, Gardner does hereby agree to cause an escrow of $200.000.00 of the proceeds received from the sale of certain of David A. Gardner's Class B non-voting stock in Raystay Co. to Lentest Communications. Inc.. or its designet\ to be deposited with his attorney, Roger M. Morgenthal. Esquire. Such escrow fund shall be held unti! such accountings are prepared and delivered to ~'" .,_' ,~--""..-\T..'~'t"""""-" "'> MARTSON, DEARDORFF, WILLIAMS & D'ITD as attorneys for the Trusts and the beneficiaries thereof, and the actions to be taken by the said David A. Gardner under parngl"dph I, 2. and 3 hereof, as well as all action set forth in a certain Agreement and Release of even date herewith by and between the said David A. Gardner and Raystay Co. and Way maker Co. have been fully resolved to the reasonable satisfaction of R.1ystay Co., Way maker Co.. and George F, Gardner at which time the sum of $100,000.00 plus all accrued interest shall be released to the said David A. Gardner. Upon the review of such accountings and the resolution of any issues revealed thereby by way of surcharge or otherwise, to tbe reasonable satisfaction of a majority of the beneficiaries of the above referenced Trusts, David A. Gardner shall be fully released of all liability for such activity as Trustee as set forth in such accountings. and the balance of such escrow, if any, shall be released to the said David A. Gardner with interest accrued thereon. to the extent not used with respect to the satisfaction of any such surcharge. The failure of one or more of the beneficiaries of any of the above referenced Trusts to raise objections. communicated in writing to the said David A. Gardner or his counsel, Roger M. Morgenthal. Esquire, withir\ 90 days of the filing of such accountings shall be deemed an approval of such accountings and shall penuit a release of the escrow as aforesaid. 5. Should the Successor Trustee or any other beneficiaries of the above referenced , Trust be required to engage legal counselor incur any other costs in order to enforce the provisions hereof and shall prevail in such enforcement, the said David A. Gardner agrees that he will be liable for such fees, costs and expenses associated therewith with the escrow hereunder being held as security for such purpose. it being the intention of the undersigned that the Successor Trustee and any other beneticiaries hereof shall be fully indemnified and held hannless against such fees, costs and expenses by the said David A. Gardner. IN WITNESS WHEREOF, David A, Gardner has executed this document the day and year first above written, intending to be legally bound hereby, Witness: ,- I ~JJ L2 " /. /) ~ QJ. cl ( ~ J)/\ avid A. Gardner I L l'NC Ullnk. ~'i\' I~.I'! (,.1111\11' h~I' li() 1\11\\Il~ {'..Il11P II ilL P,\ \ iillll.n\W'\ PNC lPRllVA'flE BANK June 11, 1996 Stephen L. Bloom. Esq, Martson, Deardorff. Williams & Olio Ten E. High St, Carlisle. P A 17013 Re: George F, Gardner Trust Your File No, 3008R.30S Dear Steve: Thank you fer your letter of May 29. 1996 regarding the above matter. I have carefully reviewed thiS information that you have provided. It appears to me that the current amount available to place into trust is $200,000, However. would two-thirds of that amount be distributed immediately to those children that have attained the age of 3S? If this is the case, approximately $66,667 would be remaining for the benefit of the other two beneficiaries, Unfortunately, our minimum amount for a trust is currently $250,000. In light of this. we would not wish to serve as trustee under the circumstances. Thank you for your consideration in making us aware of this situation, If you require a formal renunciation in your efforts to secure a corporate trustee. please provide same for our review and execution. Very truly yours. ~. Smiley Vice President Trust Officer JAS/ '-1 r- " LJ '_--o-..i, . . . AFI1IDi\ vl'r.JlF-<'y'NSENI . shtf-- ~.j IttVJcU i . /1l[ t.J p .. eOMI\l6N'NE/.b Tn OF rEN~7\ : MM. COUNTY OF' etJ\'Yi-r:,t<L,~I'IDro N I? . .' Ulall ' . I. 1. David Allen Oa~dJ.'er. am a purty' in illtcre~t to the George F, danl.iwr Irrevocable Tr\lst Agreement, duted Nove~bcr 9..19&2 (the "Tl\lst"). I \VIlli originutl)> appointed the Fi{luci~;Y ("Tnlstee") of the Trust. \ rcsrgn\ld.u~ TC\1swe,;n Februury 4.J9,94. L'cNB DlIlIk \,\OW "1'Nt: Llllnk") WIIs nUIl1ett Buecessor,Trustee in parugraph I J oj the Trust. PNC Bunk. hus declin'ed to act liS Successor Truslee, . . . " Mary Anne Adums has agreed to lIC'lepllhe uppointmcnt as Successor Trustee to the TrUst. , MlIl'Y Anne Adams is fullyqualitied to serve as Trustee. I consent to the appointment of Mary Anne ~al11S as Succ<;ssor Trustee of the Trust. \\~D(l(l~ ~. DlIvld Allen GlIrdner . Sworn to and 'Subscribe before me 'b~S ~ day of -Af,i .I ,1997. [,...s ~b"r~~dvW((1 ; l~ Wr1M11'I.u-,'OVl U;p,'r(S roflbler'f