Loading...
HomeMy WebLinkAbout04-05-07 Neil W. Yahn, Esquire Attorney J.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, P A 17033 Attorneys for Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA ORPHANS' COURT DMSION IN RE: No. 1983 of 1965 ESTATE OF FRANK F. DAVENPORT, JR. CJ c:.;5 "';:'rJ RAMSEY DAVENPORT Petitioner FRANKLIN F. DAVENPORT, III ....J --1 Respondent OBJECTIONS TO APPOINTMENT OF SUBSTITUTE TRUSTEE PENDING THE ADJUDICATION OF THE PETITION FOR INVENTORY AND ACCOUNTING TO THE HONORABLE JUDGES OF SAID COURT: .-..:> c::::J c..::l ---..I ~ -0 :;:J , C.}l Respondent, Frank F. Davenport, III (hereinafter "Respondent''), by and through his attorneys, JAMES, SMITH, DIETTERICK AND CONNELLY, LLP, objects to the -v .-::.~ r:-? ;;:::- 0"\ appointment of the Petitioner, Ramsey Davenport (hereinafter "Petitioner'), as substitute trustee pending the adjudication of a Petition for an Inventory and Accounting before this Honorable Court and upon valid information and belief, avers as follows: THE PARTIES 1. The Respondent is an adult individual currently residing 94- 843 A wanei Street, Waipahu, Hawaii 96797-3109, and is the son of the Decedent as defined below. 2. Petitioner 'and Respondent's father, Frank Freeman Davenport, Jr., was a resident of Cumberland County and died in 1969 (the "Decedenf') and the Trust B as defined below was funded shortly thereafter, specifically October 17, 1969. 3. The Decedent was married to Suzanne B. Davenport (now known as Suzanne B. Bieri)(herein "Bierr). 4. The Decedent had four (4) children, namely, your Respondent herewith, Frank F. Davenport, III; Deborah Davenport; the Petitioner, Ramsey B. Davenport; and David Davenport. 5. The Petitioner (Ramsey Davenport) petitioned this Honorable Court for his appointment as substitute trustee on February 9,2007 (herein "Petition for Substitute"). PRIOR PLEADINGS 6. Prior to said Petition for Substitute, your Respondent filed a Petition for an Accounting against the current Trustees, Wachovia Bank, NA (hereinafter "Wachovia'~ on January 12, 2007 (herein "Petitioner for Accounting"). 7. Wachovia is a banking institution with offices in Harrisburg, Pennsylvania that currently serves as Trustee of Trust B as defined below. 8. The Rule to Show Cause for the Petition for Accounting was served upon Wachovia on or about January 27, 2007 and orders Wachovia show cause why an Inventory and Accounting should not be filed for its actions completed as trustee of Trust B from the date of funding in a form that satisfies the requirements of the Probate Code and the Fiduciary Accounting standards in the form as presented in Cumberland County D.C. Rule 6.1 and an inventory of assets (herein "Accounting"). 9. Respondent had spoken with Petitioner shortly after filing the Petition to Substitute and requested informally that matter be stayed pending the Accounting and files this objection to stay the matter until an adjudication of the Accounting. 10. Respondent further objects to the appointment of the Petitioner as substitute trustee in that he believes the Petitioner may have engaged in self-dealing by preying upon Bieri's impuissance upon only an Accounting will confirm. TESTAMENTARY BACKGROUND OF TRUST B AND TRUSTEES 11. The Decedent's Will dated October 13, 1952 (the "Wilt') was offered for probate. 12. The Will names Central Trust Company of Harrisburg, Pennsylvania as Trustee and by a series of mergers and acquisitions, Wachovia Bank, NA, is now the current trustee along with Bieri as a Co-Trustee. 13. Bieri is allegedly incapable of acting as Co-Trustee, provided however, Wachovia continues to serve Co-Trustee. 14. As per Article II of the Will, it creates a residuary share called "Trust B" (funded October 17, 1969) which benefits the Decedent's spouse (specifically Bieri) during her lifetime and the children of the Decedent (which includes the Petitioner hereof) (herein "Trust B") . 15. The Petitioner is an interested party to Trust B as a beneficiary thereof and has not requested an Accounting. 16. Respondent avers that the appointment of a substitute trustee is inappropriate and premature at this time pending the adjudication of the Petition. for Accounting of Trust B as filed by the Respondent. 17. Respondent avers that Wachovia may not have been cautious or prudent in its actions as fiduciary under Trust B and is therefore desirous of procuring the Accounting. 18. Wachovia's'actions as fiduciary have been cavalier and disingenuous repeatedly ignoring the Respondent's request for an Accounting of Trust B. Including when serving the Rule to Show Cause for the Petition for Accounting, Wachovia advised the Respondent its counsel could be reached at the following phone number (412) 555-1212. 19. Wachovia has failed to address the Rule to Show Cause and while Respondent spoke with the Petitioner to stay this matter (the Petition to Substitute) pending the adjudication of the Petitioner for Accounting, Respondent must now set a record as to his objections to the appointment of the Petitioner as successor trustee. 20. A substitute appointment of Bieri is not necessary at this stage given Wachovia's appointment as Co-Trustee. 21. The Respondent and the Petitioner, and other potential beneficiaries of Trust B (namely the Decedent's children), will be prejudiced ifWachovia does not produce the records, file an inventory and provide an Accounting as per 20 Pa. Cons. Stat. 93501 and until such Accounting is filed, the Petition for Substitute Trustee should be stayed. RELIEF WHEREFORE, Petitioner respectfully requests that the Petition to Substitute be stayed pending the adjudication of the Petition for Accounting; and such other relief as the Court deems proper. Respectfully submitted, /' Date: April ~ 2007 Neil W. Yahn Attorney J.D. 134 Sipe Ave e Hummelstow , (717) 533-3280 Attorney for Respondent VERIFICATION I, Neil W. Yahn, as counsel for Frank F. Davenport, III, verify that the statements made in the foregoing Petition are true and correct to the best of my knowledge on his behalf. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. Date: ~ S 2-D ()( 1 lj( Neil W. Yahn IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: No. 1983 of 1965 ESTATE OF FRANK F. DAVENPORT, JR. RAMSEY DAVENPORT Petitioner FRANKLIN DAVENPORT Respondent CERTIFICATE OF SERVICE AND NOW, this ~ .)A..day of April, 2007, I, Neil W. Yahn, Esquire, do hereby certify that I have this date served a true and correct copy of the foregoing Petition upon the following below- named individual by depositing the same in the u.s. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania. SERVED UPON: Richard W. Stewart, Esquire Johnson, Duffie, Stewart & Weidner, P.C. 301 Market Street P.O. Box 109 Lemo e, P A 17043-0109 (7 ) 761-4540 Attome for Petitioner J( Neil W. Yahn, Esquire Attorney J.D. No. 82278