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Home My WebLink About04-30-07 .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA INRE: ESTATE OF FRANK F. DAVENPORT, JR. FRANK F. DAVENPORT, III Petitioner WACHOVIA BANK, N.A., TRUSTEE UNDER THE RESIDUARY "TRUST B" FIBIO SUZANNE B. DAVENPORT AND ISSUE \.>-- ORPHANS'.COURT DIVISION No. ANSWER TO PETITION FOR CITATION TO SHOW CAUSE WHY AN INVENTORY AND ACCOUNTING SHOULD NOT BE FILED BY RESPONDENT W ACHOVIA BANK, N.A. Filed on behalf of Wachovia Bank, National Association Counsel of Record for this Party: William Campbell Ries, Esquire Pa. I.D. No. 19919 TUCKER ARENSBERG, P.C. Firm No. 287 1500 One PPG Place Pittsburgh, PA 15222 412-566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: ESTATE OF FRANK F. DAVENPORT, JR. No. FRANK F. DAVENPORT, III Petitioner W ACHOVIA BANK, N.A., TRUSTEE UNDER THE RESIDUARY "TRUST B" FIB/O SUZANNE B. DAVENPORT AND ISSUE Respondent ANSWER TO PETITION TO SHOW CAUSE WHY AN INVENTORY AND ACCOUNTING SHOULD NOT BE FILED BY RESPONDENT WACHOVIA BANK, N.A. WHILE ACTING TRUSTEE OF "TRUST B" AS CREATED UNDER THE ESTATE OF FRANK F. DAVENPORT, JR. FIB/O SUZANNE B. DAVENPORT AND ISSUE TO THE HONORABLE JUDGES OF SAID COURT: NOW COMES WACHOVIA BANK, NATIONAL ASSOCIATION ("Respondent") and files the within Answer to the Petition to Show Cause Why an Inventory and Accounting should not be filed, as follows: 1. Respondent is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of Paragraph 1 of the Petition and the same are therefore denied, except Respondent admits that Petitioner is an adult and is the son of Frank Freeman Davenport, Jr. 2. Admitted. 3. Admitted. 4. The averments of Paragraph 4 are denied. It is denied that Respondent has an office in Harrisburg, Pennsylvania. It is denied that Respondent serves as the sole trustee for Trust B. On the contrary, Respondent serves as co-trustee for Trust B with Decedent's wife, Suzanne B. Davenport. 5. Admitted. 6. The averments of paragraph 6 are specifically denied. On the contrary, the Will names H. Marshall Davenport, III, Central Trust Company of Harrisburg, Pennsylvania, and Suzanne B. Davenport as co-trustees. Respondent is the successor to Central Trust Company of Harrisburg, Pennsylvania after a series of mergers and acquisitions, but Respondent and Suzanne B. Davenport are currently the co-trustees. 7. It is admitted that the Will creates a residuary share called "Trust B" (funded October 17,1969), and that the Decedent's spouse, Suzanne B. Davenport, and her children are beneficiaries under the Trust. Said Trust "B" is created by Items IIIB of the Will not Article II. 8. The averments of Paragraph 8 of the Petition states a conclusion of law to which no response or pleading is required. To the extent a response is required, said averment is denied. 9. The averments of Paragraph 9 of the Petition states a conclusion of law to which no response or pleading is required. 10. The averments of Paragraph 10 of the Petition states a conclusion of law to which no response or pleading is required. 11. The averments of Paragraph 11 are specifically denied. On the contrary, Respondent has always administered the Trust in a prudent manner and in accordance with the terms of the governing instrument and the Probate, Estates and Fiduciary Code. The Decedent's wife, Suzanne B. Davenport, serves as co-trustee with Respondent. -2- 12. The averments of Paragraph 12 are specifically denied. On the contrary, Respondent is willing to file an Accounting and has prepared an Accounting with respect to the administration of the Trust. 13. The averments of Paragraph 13 are specifically denied. On the contrary, Respondent has always acted and continues to act in a prudent manner and has prepared and is willing to file an accounting with respect to the administration of the Trust. Suzanne B. Davenport is co-trustee with Respondent. 14. The averments of Paragraph 14 are specifically denied. On the contrary, the Prudent Investor Rule was not adopted in Pennsylvania until 1999, Respondent has at all times since the Adoption of the Rule adhered to the Prudent Investor Rule in administering the Trust. Suzanne B. Davenport, the co-trustee approved the recommendations of Respondent. 15. Respondent is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment in Paragraph 15 of the Petition, and the same is therefore denied. The co-trustee, Suzanne B. Davenport, never approved any distributions to Petitioner since Respondent has been successor co-trustee. 16. Denied. Respondent is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment in Paragraph 16 of the Petition, and the same is therefore denied. On the contrary, the Respondent has always administered the trust in a prudent manner. 17. WHEREFORE, Respondent respectfully requests that the relief requested by petition be denied and his Petition be dismissed. Respondent has prepared an Accounting of the co-trustees' administration of the Trust through February 28,2007 and will file the same without the need of a Court Order. The beneficiaries of the Trust will be severely jeopardized if the Respondent is not permitted to dispose of any assets of the Trust because in order to carry out its duties as a fiduciary in a prudent manner, the Trustee must be able to continue to -3- purchase and sell the assets of the Trust as it deems prudent under the circumstances. In addition, the production of Respondent's entire file and copies of all documents in its possession relating to the Decedent's estate not limited to all prior tax returns (including those filed by the Respondent after the death of the Decedent) any and all records of all brokerage accounts, deeds and mortgage associated therewith and other ancillary financial information without limitation intended, is overly burdensome and vexatious. Respondent will make the records of the Trust which are not privileged available to the Petitioner at reasonable times and Petitioner may copy documents at its own expense. NEW MATTER 18. Respondent currently serves as Co-Trustee with the Decedent's wife, Suzanne B. Davenport, who has served as Co-Trustee since the inception of the Trust. All decisions involving the administration require the approval of both trustees. 19. As Co-Trustee with Respondent, Suzanne B. Davenport shares the fiduciary responsibility for the prudent administration of the Trust with Respondent and would be jointly liable for all decisions involving the trust. 20. As Co-Trustee with Respondent, Suzanne B. Davenport refused to grant distributions requested by Petitioner. The discretionary refusal to grant distributions to Petitioner were carefully considered by Suzanne B. Davenport and her personal counsel, and were refused. 21. Suzanne B. Davenport, through her agent, the Petitioner in these proceedings, has attempted to resign as Co-Trustee. As of the date of this Answer, to the knowledge of the Respondent, she has not yet been permitted to resign by consent of the beneficiaries. -4- 22. As a result of Suzanne B. Davenport's serving and continuing to serve as Co- Trustee, Respondent and Suzanne B. Davenport share fiduciary responsibility for the administration of the Trust. 23. Respondent has at all times, it has properly exercised its fiduciary duty owed to the Trust and beneficiaries of the Trust, and that is has acted in accordance with applicable law. WHEREFORE, Respondent respectfully requests this Honorable Court to dismiss the citation and to deny the Petitioner's Petition for Citation Dale: ~ ~ tJ ,2007 Respectfully submitted, B BF:298326-2017579-131522 -5- 84-38-97 15:92 WACHOVIA I ' ID=7172913583 P82/82 V~~~FICATION I, Diane Goad, A ~istant Vice President of Waohovia Bank, N.A." state that the facts contained in the foregoillg Answer to Petition for Citation are true and correct to the best of my knowledge. information. md belief. This Verification Is made subject to the penalties of 18 Pa. C.S. f 4904 relating to L nswom falsification to authorities. r;;Jp~Y/&~ , m: Diane Goad Title: Assistant Vice President, Wachovia Bank, N.A. '1- 30 -" 2007 Date: BI":29832&-101757&-131522 I , CERTIFICATE OF SERVICE On this ..?Q~~ of AI t. {<L ,2007, I hereby certify that a true and correct copy of the foregoing Answer to Petition for Citation to Show Cause Why an Inventory and Accounting Should not be Filed by Respondent Wachovia Bank, N.A. was served upon all counsel of record via first class mail, postage prepaid, addressed as follows: Neil W. Yahn, Esquire James Smith Dietterick & Connelly, LLP Post Office Box 650 Hershey, PA 17033 By: William Campbell Ries, Esq. BF:298326-1 017579-131522