HomeMy WebLinkAbout12-17-08Oath of Personal Representative
COI:%i~,,~O?.r~~~E e r TH OF PFArrrcyr VANI A .
SS
COUNTY OF ~=UMBERLAND ,
The Petitioner(s) above-named swear(s) or affirm(s) that the 5tatemenls in the foregoing Petition are true aid con~ect to the i,est of
the knowledge and belief of Petitioner(s) and that, as personal representative(s) of the Decedent, Petitioner(s) will well and truly
administer the estate according to law.
Sworn to or;~ffirmed and subscribed
-^ik't.,
h~fore. me, iiie ~ ~ _~ .day of
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1/state of DEAN 5MITHERS ,Deceased
Social Security Number: 211-1R-2919
Date of Death: November 12, 2008
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AND NOW, , in consideration of the foregoing Petition, satisfactory proof
having been presented before me, IT ISDECREED that Letters Testamentary
are hereby granted to F & M TRUST COMPANY, DELORES M. SM[THERS and LISA S. CAMPBELL, c0-eXECUTORS
in the above estate
and that the instrument(s) dated March 11, 2005
described in the Petition be admitted to probate and f led of record as the last Will (and Codicils}) of
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Letters .....~.t .~~ .... $ °l
(~~~ Short Certificate(s) ...~... $ t~(
Renunciation(s) .......... S
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TOTAL .............. S-~`L
Attorney S
Attorney Name:
Regisier n/ I6'i11s
~L lr
.OWEL R. GATES, ESQ.
Supreme Court LD. No.: 4677`
Address: 1013 Mumma Road, Suite 100
Lemoyne, PA i 7043
Telephone: (717j 731-9000
Form RIB'-0? rnr. 10.13.06 }gage ~ Of ~
105.905MS REV. 9/08
This is to certify that this is a true copy of the record which is on file in the Pennsylvania Division of Vital Records in accordance
with Ar_t 66, P.L. 304, approved by the General Assembly, June 29, 1953.
WARNING: It is illegal to duplicate this copy by photostat or photograph.
Military
Status
H1 D5~1a3 REV 1112006
TvPE!PRINi IN
PEHMAN~NT
6lACK INK
i~~~?35
No.
Frank Yeropoli
State Registrar
N~V 2 52x18
Date
COMMONWEALTH OF PENNSYLVANIA • DEPARTMENT OF HEALTH • VITAL RECORDS
CERTIFICATE OF DEATH
(See instructions and examples on reverser 1 \ f~ `rC l ~1 i r. I
1. Name at Oecedenl (First, middle. last. sufl{x) 2
S
S
Dean Smithers .
ex 3.
ocial Security Number a Dale of Death (Month, tlay, year)
Male 211
- 18 - 2919 Nov. 12, 2008
5-Age 1Las' DiMday. Untler 1 year Untler I tlay 8. Dale r. Birth (Month, tlay, year) ]. Birthplace 1CIty and state or foreign coumryl 6a- Place of Deefh (Check only one)
n+alhs a s Nou.s Nn~1es
81
Nov. 19, 1926 Mi Hcsl)tat. Cther:
lroy
PA
Yrs. ,
^Inpahent ^ERroplPatam ^ooA ®N,'angHpme [7Raaideapa ^an
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Bb. County of peaty 6c. Git Borc Twp. of Death Bd. Facliry Name (If not inst'utwn. g ve sVee1 and numbed 9. Was Decedent of H'=pane Origin? [~ No [] yes 20. R : A
;an
lid r, 8~.ack, W^.i1e, etc.
Cumberland Carlisle
Cha
l P
i (It yes. sperafy Cuban, ISpec~y)
C
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pe
o
nte at
ar
is
e Me+man,PUertoRican,e,c~ White
it-Oecedenl's Usual Occuoe~.ron Kmtl of worx done Burin most of workin Ills. Do not state r¢liratll 12 Wes Decedent ever in the 13- OecedenYs Educelion (SpeGly only highest grade completetl) 14. Marital Status'. Married, Never Maniatl. 15 $uviving Speuse (If wile, a maitlen name)
"
Kintl of Wark Nintl of Business i Intlustry U. S. Armed Forces
' Elementary /Secondary (p-12) College (1.4 or `x) Wtlowed. Dworcea (SpecTyl '
Manager Telephone Co.
' ®vea ^Np 2+ Married Delores Divan
!6. Decedent
s Mailing Adtlress (Street, city / town. s lip code) Decetlents Ditl Decetlenl
5 Alliance Drive, Apt. 302 naparRaamenae na.slal¢ np^Y¢a.Decede-nLroecn r„p
Towos
i
Carlisle, PA 17013 ,?h cpanly n
p?
Cumberland t'd p Nq Decedemr edw,tmo Carlisle
Actual Limits cl Ciry 1 Borc
16. Fathers Name (First. middle. last. suhix)
Geor
e I
Smithers 19- brother's Neme (First, mitldle, maltlen surname]
g
. Mary Catherine Krickbaum
20a. Informant's Name iType/ Printi
Delores Smithers 20b. Informant's Meiling Atldress (Street, city /town, slate, zip cotle)
5 Alliance Dr., Apt.302, Carlisle, PA 17013
21 a. Methoc of ptsposhion ^ Cremation ^ ponahon 21 b. Date of Disposition (Monty. Bey, year) 21c. Place et Disposition (Name of cemetery. aremaWry or other place) 21 tl. Location (C~y/ lover, stele. lip cotle)
® Eunel ^ Removal !nom State ~ Was Cremadon or DOneilon AUthorizetl
^ om¢r-s-eciry byMamdalExammerycdranen ^vea^Np Nov. 15 2008 Mechanicsbur Cemeter Mechanicsbur PA 17055
zza. signaw-emFpneral ervm ¢e (pr parsgn acnng as pph)
s
a 2zn. ucsnse Nvmbar z2p. Noma arw naaraaamFapiuty Hoffman-Roth Funeral Home & Cremator
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Inc
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1:;8425 ,
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219 N. Hanover St., Carlisle, PA 17013
Cpmgete Ilerns z3a~c only when ceNlying 2 T best of my icn edge, de rred a1 Ina lime, Ie antl pWC Iatetl. (Signature antl htle)
wu
~ 23b. Lice se Number 23c. Dale Blgnetl (MOnm
tlay year)
pnyam npl avanabla at time nr tleath m
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and tleatR
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Items 2a-26 must be completetl by person 24. Time of Death 25. le Pronounce cad (Month, day, year) 26. Was Case Ref
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e
to Mebical Examiner 1 Coroner for a Rea on Other than f, remotion or Donation?
who pronounces death. ~ ~ /') A M. ~ ~ y ' y ~/ ..,
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^ Yes N No
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CAUSE OF DEATH (See instructions antl examples)
Item 27 van ". Enter the enaln of events-d' ases inlur es or oompl let qna that dractly reused the tleath
DO N07 eNar lermine erenls r gpprox mate nterval'.
such as cardrae arrest Patl II: E t the f
n
l
c
ondlans pbuYno to tleath, 2g. {Ntl Totacc Use Conlrihule to Death?
.
respire\ory~ arrest, or vamrrcular fibrillefion without showing [ne etiology. 1JS1 only one cause on each line. , Onset to Deefh but not resulYng n the untlerly ng cause given In Part I. ^Ves ^ PmOahly
IMMEDIATE (:AUSE ((Final tlisease o~ ^No ~(,nknown
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condition resu ling in deeldl _~ ~ S~h~ (~ N'ICpI ~~ YW
a / rjp~
'-_•..L_ 2g II Femela'.
~
Due to (or as a cpnaeque f
ce ] Not pregnant within past yeas
Beq Bally li;:t conditions. i! any, b,
~. ~M /'T`~(y.`+Ct_f~~~..t $I S r0'+-T.tS
teasrp tp Ina .:a hared on one a. l/V~AL~JL)~ ^ Pregnant at time of death
Enter the UNDERLYING CAUSE Due to (or as a consequence of).
~ ^ Nat pregnant, em pregnamwnhlo a2 hays
(disc se or' jury that initiated the
ems rew4mg in death) LA8T. _
~ . S P~Klw/SGtJS e1 tleath
Due to (or as a conseque ce oft: ^ Nat pregnant. bur pregnant 48 days to l year
d before tleath
^ Unknown II pregnant witnn Ina past year
30a. Was an Aulo-sy 30b. Were Autopsy Findings 31- Manner pt Deefh 32a. Dale of Injury (Month, day, year) 32b, Describe How Injury Occurred 32c Place of Injury. Home, Farm, Street. Fau'ory.
Performac7 Avai~able Prior to Completion
of Cause of Dealhl ~NaWra' ^ Hpmicitle
'-AI
1 Ottlee Building, eta (Specify)
^ Ves ~ No `.~
^ Yes ~1 No ^ Accitlent ^ Pend!ng Investigation 32d. 7me of Injury 32e. Injury al Work? 32t. I!Transponatlon Injury (Specrty) 32g- Locetien of tnlury (Slrael, crty /.own, stetej
^ Suicitle ^ Could Nat be Delerminetl
^ yes ^ No ^ Driver' Operator ^ Passenger ^PetlesYrian
M ^Other- Speciry:
33a. Gedilier (check only one)
330. Signz TiVa of Cedi!ier
en us
• Cerllfying physician (Physic cenltying oa a of tleath when another physician has pronour.catl tleath antl completed Item 23j
Tp Iha beat of my knowletlge, tleaN xcurred tlue to Ne cause(s) antl manner as staled_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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antl due to the cause 5) s
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On the basis of ¢xaminalion antl I or investigation
in m
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LAST WILL AND TESTAMENT = ~~~ _..~
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DEAN SMITHERS ~ w
I, DEAN SMITHERS, now of 21 Helen Avenue, Mechanicsburg, Cumberland County,
;Pennsylvania 17055, do publish and declare this to be my Last Will and Testament, hereby revoking
all other prior wills and codicils made by me.
FIRST: Family Background and Appointment of Executor.
(A) Family and Background Information. I am currently married to DECOKES M.
',SMITHERS. The children of my previous marriage to MARGARET J. SMITHERS (deceased)
are SANDRA K. TERRY and LISA S. CAMPBELL. Throughout this Will, SANDRA K.
7CERRY and LISA S. CAMPBELL will be referred to as "my children". The word "issue" will
include my children as well as my other descendants.
(B) Appointment of Executor. I appoint as my Co-Executors (all hereinafter referred
to as Executor or Executor(s) under this Will), the following named persons or corporations to serve
without bond and without being required to account to any Court:
Executor: DECOKES M. SMITHERS, LISA S. CAMPBELL, and
COMMUNITY TRUST COMPANY, now of 3907 Market
Street, Camp Hill, Pennsylvania, or the survivor of them to
act jointly only.
(C) Inter Vivos Trust. The inter vivos trust agreements referred to in this Will are
entitled "THE SANDRA K. TERRY TRUST," dated October 24, 2001, by and between myself,
DEAN SMITHERS, as Settlor, and COMMUNITY TRUST COMPANY, as Trustee, as now in
effect or as may hereafter be amended, and "THE LISA S. CAMPBELL TRUST,"dated October
24, 2001,by and between myself, DEAN SMITHERS, as Settlor, and COMMUNITY TRUST
COMPANY, as Trustee, as now in effect or as may hereafter be amended. Any reference
throughout this Will to these trusts outlined in this Article FIRST (C), shall obligate the Executor
acid/or Trustee to divide any assets hereunder into separate and equal shares, with one share being
distributed to the Trustee of THE SANDRA K. TERRY TRUST, dated October 24, 2001, and the
other share being distributed to the Trustee of THE LISA S. CAMPBELL TRUST, dated October
24~, 2001, to beheld according to the terms of such Trusts.
;.
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 2
SECOND: Funeral and Last Illness Expenses: Taxes.
(A) Expenses of Funeral and Last Illness. I direct my Executor to pay my funeral
expenses and the expenses of my last illness from my estate.
(B) Taxes. I direct my Executor to pay any and all estate, inheritance, succession, legacy,
transfer and other death taxes or duties, by whatever name called, including any and all interest and
penalties thereon, imposed under the laws of any jurisdiction by reason of my death upon or with
:respect to any and all property included in my gross estate for the purpose of such taxes, whether
such property passes under or outside of this Will. Without any apportionment otherwise required
bylaw and without being prorated or apportioned among or charged against the respective devises,
legatees, beneficiaries, transferees, or other recipients of any such property or charged against any
property passing or which may have passed to any of them, I direct that any taxes so paid shall be
charged against my residuary estate. My Executor shall not be entitled to reimbursement for any
I~ortion of any such taxes from any such person. The foregoing provisions of this Article SECOND
shall not apply to such portion or portions of said taxes, interest and penalties which may be required
to be paid, or are actually paid or reimbursed, by the Trustee of the Trust described in Paragraph
FIRST (C), above.
THIRD: Tangible Personal Property. Except for those items excluded below and those
items enumerated in the Letter of Instruction, I bequeath all my tangible personal property, including
but not limited to clothing, jewelry, heirlooms, furniture, household furnishings, personal effects,
motor vehicles, and all other similar articles, which I own, and the insurance thereon, to my children,
SANDRA K. TERRY and LISA S. CAMPBELL, living at the time of my death, to be divided
among them as they may select in as nearly equal shares as is practical, provided, however, that my
wife, DECOKES M. SMITHERS, shall retain a life estate in all of my tangible personal property
to use at her discretion so long as she chooses, for the rest of her natural life, keeping in mind the
remainder interest herein. After the death of my wife, DECOKES M. SMITHERS, my tangible
personal property shall be distributed to my children, SANDRA K. TERRY and LISA S.
CAMPBELL. My wife, DECOKES M. SMITHERS, may choose to distribute various items of
my tangible personal property to my children, SANDRA K. TERRY and LISA S. CAMPBELL,
at her discretion, during her lifetime.
My wife, DECOKES M. SMITHERS, and I will prepare a separate, signed list of tangible
personal property detailing our respective ownership interests therein. This list shall be considered
a supplement to this Last Will and Testament, and shall have the same force and effect as the within
document.
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 3
Notwithstanding any other provisions in this Article THIRD, I may leave a separate, dated
and unsigned Letter of Instruction, which I shall place with my Will, containing directions as to the
ultimate disposition of certain of the property bequeathed under this Article THIRD, and such Letter
of Instruction shall determine the distribution of such items.
FOURTH: Residuary Estate.
(A) I devise and bequeath all of the rest, residue and remainder of my estate, real, personal
and mixed, of whatever nature and wherever situated to which I am legally or equitably entitled, in
equal shares, to the then-acting Trustee of the Trusts described in Paragraph FIRST (C) of this Will,
to be held, administered and distributed pursuant to the terms thereof, as the same may be amended
from time to time. By this devise and bequest of my residuary estate I hereby exercise all Powers
of Appointment I possess at the time of my death except any power of appointment which I possess
under the Trusts described in Paragraph FIRST (C) of this Will.
(B) Upon my death and if I am survived by my wife, DECOKES M. SMITHERS, and
provided that we were married at the time of my death, I hereby acknowledge, validate, and institute
the letter dated July 30, 2002, exercising the Broad Special Power of Appointment granted to me in
Article Seventh (C) of THE MARGARET J. SMITHERS BY-PASS TRUST, u/w. In doing so,
I hereby specifically remove the residence and real property known and numbered as 21 Helen
Avenue, Mechanicsburg, Pennsylvania 17055, or any subsequent residence purchased by the Trust
in its stead, from THE MARGARET J. SMITHERS BY-PASS TRUST, ulw, and direct the same
to the Trustee hereinafter named, in trust described in Article FOURTH (B) & (C), for the benefit
of the Beneficiary, DECOKES M. SMITHERS, for the following uses and purposes:
(1) DECOKES M. SMITHERS shall be permitted to remain and reside at the
residence for the rest of her natural life, if she so chooses, or if she is no longer physically
andlor mentally able, in the determination of the Trustee.
(2) DECOKES M. SMITHERS shall have no ownership rights in the property.
(3) Upon the death of DECOKES M. SMITHERS, the residence shall be sold,
and the proceeds therefrom shall be distributed, in separate and equal shares, to
COMMUNITY TRUST COMPANY, as Trustee for THE LISA S. CAMPBELL TRUST
and THE SANDRA K. TERRY TRUST, respectively, to be administered in accordance
with the respective terms thereof.
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 4
(C) Upon my death and if I am survived by my wife, DECOKES M. SMITHERS, and
provided that we were married at the time of my death, and provided further that THE
MARGARET J. SMITHERS BY-PASS TRUST owns real estate at the time of my death, I hereby
acknowledge, validate, and institute the letter dated July 30, 2002, exercising the Broad Special
Power of Appointment granted to me in Article Seventh (C) of THE MARGARET J. SMITHERS
BY-PASS TRUST, u/w. In doing so, I hereby specifically appoint one-third (1/3) of the non-real
estate principal contained in THE MARGARET J. SMITHERS BY-PASS TRUST, u/w, to the
Trustee hereinafter named, in trust described in Article FOURTH (B) & (C), for the benefit of the
:Beneficiary, DECOKES M. SMITHERS, for her lifetime, together with any other assets received
by the Trustee, for the following uses and purposes:
(1) This Trust is established for the purpose of improving the quality of life of the
Beneficiary, DECOKES M. SMITHERS, for and during all the term of her natural life. As
the result of the natural physical and mental deteriorations of her age and infirmities, the
Beneficiary, DECOKES M. SMITHERS, suffers, or may suffer, from substantial mental
and physical disabilities and requires additional medical care. She may be entitled to benefit
from various governmental programs which provide for her basic or supplemental care. It
is the purpose of this Trust to provide the Beneficiary, DECOKES M. SMITHERS, with
a higher quality of life beyond that which would be provided by these public entitlement
programs and to provide her with a proper funeral and burial.
(2} My intent in creating this Trust is that the Trustee use the Trust created herein
to promote the happiness, welfare and benefit of the Beneficiary, DECOKES M.
SMITHERS, through income and principal distributions, without in any way reducing the
services or financial assistance and basic maintenance, support, medical or dental care which
the Beneficiary may receive without charge from any local, state or federal government
agency or department thereof, and without using any portion of the Trust income or principal
to reimburse any local, state or federal government agency or department thereof for basic
maintenance, support, medical or dental care received by the Beneficiary. My intent is that
the Trust income and principal is not to be considered income, assets, nor resources of the
Beneficiary, for any purpose, including but not limited to, the determination of income,
assets or resources as stated in any rules or regulations set forth in any local, state or federal
government agency or department thereof. In the event the Trustee is requested by any
department or agency to release principal or income of the Trust to or on behalf of the
Beneficiary to pay for equipment, medication or service which other organizations or
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 5
agencies are authorized to provide, or in the event the Trustee is requested by any department
or agency administering such benefits to petition the Court or any other administrative
agency for the release of Trust principal or income for this purpose, the Trustee shall deny
such request and is directed to defend at the expense of the Trust estate, any contest or other
attack of any nature.
(3) The Trustee shall distribute to the Beneficiary, DECOKES M. SMITHERS,
or expend and apply for her benefit, so much of or all of the income and principal of this
Trust, as the Trustee, in its sole and absolute discretion, determines to be advisable for the
Beneficiary's special needs for happiness and comfort to achieve the purpose of the Trust
herein set forth. The "special needs" which the Trustee may provide to the Beneficiary,
DECOKES M. SMITHERS, include but are not limited to spending money, additional
food, clothing, gifts on his birthday and major holidays, small appliances that would provide
the Beneficiary with entertainment or amusement, computer equipment, camping excursions,
vacations, athletic contests, movies, trips, money to purchase appropriate gifts for relatives
and friends, any recreational items that would be of use to her and other monetary
requirements to enhance her self-esteem or situation. "Special needs" shall also include
medical and dental expenses, annual independent check-ups, rehabilitation and physical
therapy equipment, programs of training, education, treatment, physical therapy and
rehabilitation, private residential care, eye glasses, transportation (including vehicle
purchase), maintenance, and insurance (including payment of premiums of insurance on the
life of the beneficiary) and other requisites for maintaining the good health, safety, and
welfare of the Beneficiary when, in the discretion of the Trustee, such requisites are not being
provided by any public agency, office, or department of any state or of the United States.
Nothing herein shall preclude the Trustee from purchasing those services and items which
promote the Beneficiary's happiness, comfort and welfare. The Trustee shall also have
authority in its absolute and sole discretion to make gifts to any community residence in
which the Beneficiary maybe residing.
(4) The Trustee may, in its discretion, use trust principal and/or income for
expenses relating to the real estate owned by the trust, including such expenses as real estate
taxes, insurance, maintenance and repairs. Any net income not expended for or applied to
the special needs of the Beneficiary, DECOKES M. SMITHERS, and/or for the real estate,
shall be accumulated and added to the Trust principal.
(5) The Trustee shall have no obligation to expend Trust assets for the
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 6
Beneficiary's special needs, but if the Trustee, in its sole discretion, decides to expend Trust
assets, under no circumstances should any amounts be paid to, or reimbursed to, the federal
government, any state, or any governmental agency for any purpose, including for the care,
support, and maintenance of the Beneficiary. This Trust is created expressly for the
Beneficiary's extra and supplemental care, maintenance, support and education in addition
to, and over and above the benefits he otherwise receives or may receive as a result of
handicap or disability, from any local, state or federal government, or from any other private
agency, any of which provides service or benefits to persons with disabilities. It is my
express purpose that this Trust be used only to supplement other benefits that the Beneficiary
may receive.
(6) Because the Beneficiary maybe dependent on the support and aid of others,
the Trustee shall, in the exercise of its best judgement and fiduciary duty, seek support and
maintenance for her, or request the guardian of the Beneficiary to seek support and
maintenance for her, from all available public resources, including, but not limited to, Social
Security Administration benefits, the Supplemental Security Income Program (SSI), any such
supplemental income program offered by or through the Commonwealth of Pennsylvania,
the Old Age Survivors and Disability Insurance or successor programs, U.S. Civil Service
Commission benefits, Medicaid, and Federal Social Security Disability Insurance (SSDI),
and any other comparable programs, state, federal, or local. The Trustee shall take into
consideration applicable resource and income limitations of any public assistance programs
for which the Beneficiary is eligible when determining whether or not to make any
discretionary distributions. In carrying out the provisions of this Article, the Trustee shall
be mindful of the probable future needs of the remaindermen of this Trust. If necessary, the
Trustee may seek appropriate authority to collect, expend, and account for separately all such
governmental assistance benefits, but shall not commingle them with these Trust assets. In
addition, in making distributions for the special needs of the Beneficiary, the Trustee shall
take into consideration the applicable resource limitations of the public assistance programs
for which she is or may become eligible.
(7) The Trustee shall regard this Trust as existing for the welfare and benefit of
the Beneficiary, DECOKES M. SMITHERS. Accordingly, the Trustee shall exercise its
discretion as to disbursements and investments with this standard in mind. Consistent with
the purpose of this Trust, I may establish a life plan to be periodically updated, signed and
dated. It is intended that the Trustee read the life plan and use it as guidance in administering
this Trust according to the terms set forth herein. In no event shall the life plan be binding
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 7
upon the Trustee or otherwise diminish the Trustee's discretion as described herein.
(8) The Trustee shall exercise reasonable diligence. However, the Trustee shall
not be liable for any acts or omissions done or performed in good faith.
(9) The Trustee shall not be required to make an accounting to any public official
except to the extent otherwise required by law. The Trustee shall, however, keep and
maintain complete and open accounts of the Trust principal and income and any expenditures
from the Trust. Anyone having an interest in the Trust shall have a right to inspect the
accounts at reasonable times and with reasonable notice to the Trustee. All discretion
conferred on the Trustee shall be absolute and unlimited, and its exercise by the Trustee shall
be conclusive and binding on all persons.
(10) The Trustee shall pay reasonable burial expenses including a suitable and
proper grave marker for the Beneficiary, DECOKES M. SMITHERS.
(11) Upon the death of the Beneficiary, DECOKES M. SMITHERS, this trust
shall terminate. Upon termination, the remaining trust estate shall be distributed as follows:
(a) One-half (%Z) of the remaining trust estate shall be distributed to
COMMUNITY TRUST COMPANY, as Trustee of THE LISA S.
CAMPBELL TRUST, to be administered in accordance with the terms
thereof.
(b) One-half ('/2) of the remaining trust estate shall be distributed to
COMMUNITY TRUST COMPANY, as Trustee of THE SANDRA K.
TERRY TRUST, to be administered in accordance with the terms thereof.
(D) After taking into consideration the terms of Paragraphs (B) and (C), above, the
Trustee is directed to distribute the entire remaining balance of the principal and accrued income of
THE MARGARET J. SMITHERS BY-PASS TRUST, u/w, equally between and directly to (I)
Community Trust Company, Trustee of THE SANDRA K. TERRY TRUST, dated October 24,
2001; and, (ii) Community Trust Company, Trustee of THE LISA S. CAMPBELL TRUST, dated
October 24, 2001, to be held and administered according to the terms of the Trusts.
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE $
FIFTH: Apuointment of Trustee and Successor Trustees.
(A) Nomination. I nominate, constitute and appoint COMMUNITY TRUST
COMPANY, now of 3907 Market Street, Camp Hill, Pennsylvania 1701 1, to act as Trustee of all
Trusts created by my Will.
(B) Corn~ensation. The Trustee shall receive as his compensation for the services
performed hereunder that sum of money, based on an hourly charge or percentage rate, which the
Trustee normally and customarily charges for performing similar services during the time which he
:performs these services.
(C) Removal of Trustee. A majority of the current beneficiaries may remove a Trustee,
at any time or times, with or without cause, upon thirty (30) days' written notice given to the Trustee.
Upon the removal ofthe Trustee, a successor Trustee shall be appointed in accordance with the terms
set forth in Paragraph FIFTH (D).
(D) Aupointment of Successor Trustee. The Trustee may resign at any time upon thirty
(30) days' written notice given to the current beneficiary or beneficiaries (including a beneficiary's
natural or legal guardian or legal representative), hereunder. Upon the death, resignation, removal
or incapacity of the Trustee, a successor trustee may be appointed by a majority of the current
beneficiaries. Any successor trustee shall be a financially sound and competent corporate trustee or
my issue. Any successor trustee thus appointed, or, if the Trustee shall merge with or be
consolidated with another corporate fiduciary, then such corporate fiduciary, shall succeed to all the
duties and to all the powers, including discretionary powers, herein granted to the Trustee.
SIXTH: Powers of Trustee and Executor. In addition to the powers and duties as may
h<~ve been granted elsewhere in this Will, but subject to any limitations stated elsewhere in this Will,
the Executor and Trustee shall have and exercise exclusive management and control of the Estate
or• Trusts, respectively, and shall be vested with the following specific powers and discretion, in
addition to the powers as maybe generally conferred from time to time upon them bylaw:
(A) In the management, care and disposition of the Trusts or Estate, the Trustee and
E~:ecutor, respectively, shall have the power to do all things and to execute such instruments, deeds,
or other documents as maybe deemed necessary or proper, including the following powers, all of
which maybe exercised without order of or report to any Court:
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 9
(1) To sell, exchange or otherwise dispose of any property at any time held or
acquired hereunder, at public or private sale, for cash or on terms, without advertisement,
including the right to lease for any term notwithstanding the period of the Trust, and to grant
options, including any option for a period beyond the duration of the Trust; except that, in
lieu of anybinding shareholder agreement or buylsell agreement to the contrary, the Executor
and Trustee shall not be permitted to sell the stock or any other ownership interest in any
business owned by me, or my spouse, or held in trust, at my death, without first offering the
same for sale to my children, or without next offering the same to the corporation or business
represented by such ownership interest for redemption.
(2) To invest all monies in such stocks, bonds, securities, mortgages, notes, chows
in action, real estate or improvements thereon, and any other property as the Trustee or
Executor may deem best, without regard to any law now or hereafter enforced limiting
investments of fiduciaries, except that the Trustee or Executor may not invest in any
securities issued by the corporate Trustee or Executor, or issued by a parent or affiliate
company of such Trustee or Executor.
(3) To retain for investment any property deposited with the Trustee or Executor
hereunder; except that the Trustee or Executor may not retain for investment any stock in the
corporate Trustee or Executor, or in a parent or affiliate company of such Trustee or
Executor.
(4) To vote in person or by proxy any corporate stock or other security and to agree
to or take any other action in regard to any reorganization, merger, consolidation, liquidation,
bankruptcy or other procedure or proceedings affecting any stock, bond, note or other
security.
(5) To use attorneys, real estate brokers, accountants and other agents, if such
employment is deemed necessary or desirable, and to pay reasonable compensation for their
services.
(6) To compromise, settle or adjust any claim or demand by or against the Trusts or
Estate and to agree to any rescission or modification of any contract or agreement affecting
the Trusts or Estate.
(7) To renew any indebtedness, as well as to borrow money, and to secure the same
by mortgaging, pledging or conveying any property of the Trusts or Estate, including the
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 10
power to borrow from the Trustee at a reasonable rate of interest.
(8) To retain and carryon any business in which the Trusts or Estate may acquire an
interest, to acquire additional interest in any such business, to agree to the liquidation in kind
of any corporation in which the Trusts or Estate may have an interest and to carry on the
business thereof, to join with other owners in adopting any form of management for any
business or property in which the Trusts or Estate may have an interest, to become or remain
a partner, general or limited, in regard to any such business or property and to hold the stock
or other securities as an investment, and to employ agents and confer on them authority to
manage and operate the business, property or corporation, without liability for the acts of
such agent or far any loss, liability or indebtedness of such business if the management is
selected or retained with reasonable care.
(9) To register any stock, bond or other security in the name of a nominee, without
the addition of words indicating that such security is held in a fiduciary capacity, but accurate
records shall be maintained showing that such security is a Trust or Estate asset and the
Trustee or Executor shall be responsible for the acts of such nominee.
(B) Whenever the Trustee or Executor is directed to distribute any Trust principal or
1=,state assets in fee simple to a person who is then under twenty-five (25) years of age, the Trustee
or Executor shall be authorized to hold such property in Trust for such person until he/she becomes
twenty-five (25) years of age, and in the meantime shall use such part of the income and the principal
of the Trusts or Estate as the Trustee or Executor, respectively, may deem necessary to provide for
the proper support and education of such person.
(C) In making distributions from the Trusts or Estate to or for the benefit of any minor
oi• other person under a legal disability, the Trustee or Executor need not require the appointment of
a ;guardian, but shall be authorized to pay or deliver the same to the custodian of such person, to pay
or• deliver the same to such person without the intervention of a guardian, to pay or deliver the same
to a legal guardian of such person if one has already been appointed, or to use the same for the
benefit of such person.
(D) In the disbursement of the Trusts or Estate and any division into separate trusts or
shares, the Trustee or Executor shall be authorized to make the distribution and division in money
or in kind, or both, regardless of the basis for income tax purposes of any property distributed or
divided in kind, and the distribution and division made and the values established by the Trustee or
Executor shall be binding and conclusive on all persons taking hereunder. The Trustee or Executor
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 11
may in making such distribution or division allot undivided interests in the same property to several
trusts or shares.
(E) The Trustee and Executor shall be authorized to lend or borrow, including the right
to lend to or borrow from any trusts which I may have established during life or by will at an
adequate rate of interest and with adequate security, and upon such terms and conditions as the
Trustee or Executor shall deem fair and equitable.
(F) The Trustee and Executor shall be authorized to sell or purchase at the fair market
value as determined by the Trustee or Executor, any property to or from my estate, the estate of my
spouse, or any trust created by me or my spouse during life or by Will, even though the same person
or corporation may be acting as Executor of my estate or the estate of my spouse or as Trustee of any
of my other trusts.
(G) The Trustee and Executor shall have discretion to determine whether items should
be charged or credited to income or principal or allocated between income and principal as the
Trustee or Executor may deem equitable and fair under all the circumstances, including the power
to amortize or fail to amortize any part or all of any premium or discount, to treat any part or all of
the profit resulting from the maturity or sale of any asset, whether purchased at a premium or at a
discount, as income or principal or apportion the same between income and principal, to apportion
the sales price of any asset between income and principal, to treat any dividend or other distribution
of any investment as income or principal, or apportion the same between income and principal, to
charge any expense against income or principal or apportion the same, and to provide or fail to
provide a reasonable reserve against depreciation or obsolescence on any assets subject to
depreciation or obsolescence, all as the Trustee and Executor may reasonably deem equitable and
just under all the circumstances.
(H) If at any time the total fair market value of the assets of any trust established or to be
established hereunder is so small that the corporate Trustee's annual fee for administering the trust
would be the minimum annual fee set forth in the Trustee's regularly published fee schedule then,
in effect, the Trustee in its discretion shall be authorized to terminate such trust or to decide not to
establish such trust, and in such event the property then held in or to be distributed to such trust shall
be distributed to the persons who are then or would be entitled to the income of such trust. If the
amount of income to be received by such persons is to be determined in the discretion of the Trustee,
then the Trustee shall distribute the property among such of the persons to whom the Trustee is
authorized to distribute income, and in such proportions, as the Trustee in its discretion shall
determine.
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LAST WILL AND TESTAMENT
OF
DEAN SMITAERS
PAGE 12
(I) When the authority and power under this Will are vested in two (2) or more Executors
or Trustees, the authority and powers are to be held jointly or individually by the Executors or
Trustees, respectively.
(.1) The Trustees shall be subject to the Uniform Prudent Investor Act (the "UPIA") as
if the UPIA had been enacted in the Commonwealth of Pennsylvania in the form promulgated by the
Commission on the Uniform State Laws in its exercise if any power to manage and invest the assets
of the trust. The Testator desires that the Executor and Trustees, consistent with the standards of the
UPIA, continuously assess the appropriate investment risk tolerance of the trust beneficiaries, and
then invest the trust assets seeking the maximum total return at that level of risk. The Testator
believes, consistent with modern portfolio theory, that the estate and trust total investment return will
be determined primarily by the trust's asset allocation; not market timing or active management in
security selection. The Testator believes that the estate and trust should diversify its investments
with regard to assets classes and individual securities to avoid uncompensated risk. The Testator
does not intend to prohibit the Executor or Trustees from engaging in active management of estate
or trust assets where the Executor or Trustees reasonably believe active management can aid in
achieving the desired balance between risk and return.
The Testator directs that any Executor or Trustee, in managing and investing the assets of the
trust estate, establish, in writing, an appropriate investment policy statement. The investment policy
statement shall be reviewed and updated at least annually.
The Executor and Trustees may retain professional investment counsel of the Executor's and
Trustees' choice; provided, however, a counsel so selected shall be either registered as an investment
adviser with the U. S. Securities and Exchange Commission or a state chartered or national bank with
fiduciary powers. If investment counsel is retained, the Executor and Trustees shall abide by the
counsel's decision but shall not be held liable or otherwise surcharged for losses directly attributable
to investments made on the investment counsel's advise. While the Executor or Trustees retain
investment counsel, the Executor and Trustees shall not be required to review trust investments or
ta]'ce action on trust investments unless the Trustees receive written instructions from investment
counsel.
The Executor and Trustees shall have the power exercisable in their discretion to discharge
such investment counsel and to employ other counsel or to administer the trust without such counsel.
Consistent with the standards of the UPIA, the Executor and Trustees shall have the responsibility
to prudently select any investment counsel, to periodically review the performance of any investment
counsel and to take appropriate action if apprized of facts clearly indicating that counsel is not
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 13
performing competently.
The Executors and Trustees shall not be liable to any beneficiary or to any heir for the
Executor's or Trustees' acts or failure to act, except for willful misconduct or gross negligence, in
directing the investments of the trust.
SEVENTH: Rigl-ts and Liabilities of Executor and Trustee.
(A) No bond or other security shall be required of any Executor.
(B) This instrument always shall be construed in favor of the validity of any act or
omission by any Executor, and any Executor shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud. Specifically, in assessing the propriety of any
investment, the overall performance of the entire Estate shall be taken into account.
(C) Each Executor shall be entitled to receive reasonable compensation for services
actually rendered to my estate, in an amount the Executor normally and customarily charges for
performing similar services during the time which he/she performs the services.
EIGHTH: Tax Elections.
(A) In determining the estate, inheritance and income tax liability relating to my Estate,
the Executor's decision as to all available tax elections shall be conclusive on all concerned. In
accordance with IRC Section 2632(a) and without regard to whether a Federal estate tax return is
actually filed, my Executor shall allocate so much of the Federal Generation Skipping Transfer
(GST) exemption amount as will fully exempt any generation skipping transfer which may occur
under this Will.
(B) The Executor may, in its discretion, determine the date as of which my gross estate
shall be valued for the purpose of determining the applicable tax payable by reason of my death.
(C) The Executor may, in its discretion, decide whether all or any part of certain
deductions shall be taken as income tax deductions (even though they may equal or exceed the
taxable income of my estate and whether or not claimed or of benefit on my estate's income tax
return) or as estate tax deductions when a choice is available; and in the event that all or any part of
such deductions are taken as income tax deductions, no adjustment of income and principal accounts
in my estate shall be made as a result of such decisions.
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 14
NINTH: Spendthrift Provision. No beneficiary shall have the power to anticipate,
encumber or transfer his or her interest in the estate in any manner other than by the valid exercise
of a power of appointment. No part of the estate shall be liable for or charged with any debts,
contracts, liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of
a beneficiary.
TENTH: Definitions and General Provisions.
(A) Survival. Any beneficiary who dies within sixty (60) days after my death shall be
considered not to have survived me.
(B) Captions. The captions set forth in this Will at the beginning of the various articles
hereof are for convenience of reference only and shall not be deemed to define or limit the provisions
]hereof or to affect in any way their construction and application.
(C) Children. As used in this Will, the words "child" and "children" shall include
persons who are legally adopted and the issue of said persons, whether born in or out of wedlock,
so long as any person born out of wedlock is acknowledged in a written instrument executed by the
c-ne of their natural parents who is a descendant of mine to be the child of said descendant. The word
"issue" shall include descendants of all generations including adopted persons. A posthumous child
shall be considered as living at the death of his parent. The birth to me or the adoption by me of a
child or children subsequent to the execution of this Will shall not operate to revoke this Will.
(D) Code. Unless otherwise stated, all references in my Will to section and chapter
numbers are to those of the Internal Revenue Code of 1986, as amended, or the corresponding
provisions of any subsequent federal tax laws applicable to my estate.
(E) Other terms. The use of any gender includes the other genders, and the use of either
th.e singular or the plural includes the other.
(F) Powers of Appointment are Exercised. By this Will I exercise any and all Powers
of Appointment which I possess at the time of my death except any power of appointment which I
pc-ssess under the Trust described in Paragraph FIRST (C), above.
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LAST WILL AND TESTAMENT
OF
DEAN SMITHERS
PAGE 15
IN WITNESS WHEREOF, I, DEAN SMITHERS, the Testator, have to this my Last Will
and Testament, typewritten on sixteen (16) pages, including the Acknowledgment and Affidavit, set
my hand and seal this ~ day of March, 2005.
DEAN SMITHERS
Signed, sealed, published and declared by the above-named Testator, as and for his Last Will and
'Testament, in the presence of us, who have hereunto subscribed our names at his request, as
witnesses hereto, in the presence of the said Testator, and in the presence of each other. Each of us
further declares that he or she believes the Testator to be of sound mind and memory. The preceding
instrument consists of this and fifteen (15) other consecutively numbered typewritten pages including
the Acknowledgment and Affidavit.
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ACKNOWLEDGMENT AND AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
The Testator and the witnesses whose names are signed and subscribed to the attached or
foregoing instrument, being first duly sworn and qualified according to law, do hereby acknowledge,
depose and say to the undersigned authority, that the Testator signed and executed the instrument
as his Last Will in the presence of the witnesses; that he signed it willingly or willingly directed
another to sign it for him; that he executed it as his free and voluntary act for the purposes therein
expressed; that each of the witnesses were present and saw the Testator sign and execute the
instrument as his Last Will; that each subscribing witness in the hearing and sight of the Testator
signed the will as witnesses; and that to the best of their knowledge the Testator was at that time
eighteen years of age or older, of sound mind and under no constraint or undue influence.
Testator
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fitness
Witness
Sworn to or affirmed, subscribed to, and acknowledged, before me by the above-named
Testator and witnesses, this ~ 1 ~" day of March, 2005. ~
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Notary Public
My Commission Expires:
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