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HomeMy WebLinkAbout07-18-06 In re: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA Trust Under Will of Warren F. Coolidge For benefit of Julia E. Stolz, et a1. : ORPHANS' COURT DIVISION : 21-01-0684 i'"-) REPLY OF PETITIONERS TO RESPONDENT'S NEW MA TTER-:J ) i'", r:":'";:') ':..'::.'> C-." TO THE HONORABLE, THE JUDGES OF SAID COURT: C'" ,~ AND NOW, this 7~ay of July, 2006, come Petitioners Philip W. COolidg~~nd I -:-/ U1 Thomas E. Coolidge, as trustees of the Trust Under Will of Warren F. Collidge For Benefiltl Of Julia E. Stolz, et a1., by and through their Counsel, Robert G. Frey, Esq., and file this Reply in response to the New Matters raised by Respondent, and in support thereof respectfully represent: 22. No response required. 23. Admitted. 24. Denied. The allegations contained in this paragraph are legal conclusions to which no responsive pleading is required. By way of further answer, Petitioners intend to fully cooperate with the auditor appointed to review their First and Partial Account and the exceptions filed and to provide any additional information that is deemed necessary by the auditor to fully review such account and exceptions. 25. Denied. Petitioners are unaware of any requests, let alone multiple requests, to either Petitioners or their counsel in this matter, Robert G. Frey, Esq. or to their counsel in the pending litigation in which Respondent challenges the probated Last Will and Testament of Eleanor U. Coolidge, James D. Flower, Jr., Esq., or to the best of Petitioners' and Petitioners' counsels' knowledge any other person, for information regarding the Trust and/or its income since the death of Eleanor U. Coolidge on March 24, 2004. To the extent it is relevant, \J' -r-] ,', . I (-) ., :-) _ '.J ',__:.J cS , .I Petitioners request that Respondent supply Petitioners proof of any request made subsequent to March 24, 2004, or supply details of dates and specifics of the alleged requests made subsequent to March 24,2004. It is specifically denied that Petitioners have not provided Respondent with any information regarding the Trust or Trust income since the death of Eleanor U. Coolidge. Petitioners have provided to Respondent on an annual basis information concerning the Trust as required by Pennsylvania and federal laws and regulations. Moreover, on March 3, 2005, Petitioners voluntarily provided Respondent with comprehensive and detailed Legg Mason and Vanguard Group financial statements for the period from December 2002 through March 2004. These financial statements are sufficient for Respondent, using only the financial statements provided by Petitioners and readily available market closing data to determine the total principal in the Trust on March 24, 2004, and to precisely know the total value of the Trust on month-end dates from December, 2002 to March 31, 2004, a date just one week later than the day Eleanor U. Coolidge died. These financial statements were provided by Petitioners to Respondent and her counsel as part of Petitioner Thomas E. Coolidge's Power of Attorney Report submitted in evidence during a hearing before The Honorable 1. Wesley Oler, Jr., of the Orphans' Court Division of the Cumberland County Court of Common Pleas in regard to the Estate of Eleanor U. Coolidge filed at docket numbers 21-03-936 and 21-04-301. On this basis, Petitioners aver that Respondent can directly determine the reasonable accuracy of the total principal in the Trust as of March 24, 2004, and to a reasonable degree on other dates. Earlier, in the fall of 2003 prior to the first of Respondent's various legal actions, Petitioners voluntarily provided to Respondent financial statements available to that point in time through Respondent's counsel at that time, Abom and Kutulakis, L.L.P. However, Petitioners have no objection to providing the financial information as now requested by Respondent. Petitioners have prepared and will provide to Respondent contemporaneously with the service of this within Reply, a compilation of Legg Mason and Vanguard Group financial statements related to Respondent's interest that covers the entire period of the Trust's existence, from inception to present. 26. It is admitted that Respondent has accurately recited a portion of the Last Will and Testament of Warren F. Coolidge. By way of further answer, the will is a written document that speaks for itself. 27. Denied. It is denied that the proposed appointment of Manufacturers and Traders Trust Company as the successor trustee is specifically precluded by the Last Will and Testament of Warren F. Coolidge. Paragraph 6 of the Last Will and Testament of Warren F. Coolidge provides for automatic or elective appointment of a successor trustee of the Trust Under Will of Warren F. Coolidge depending upon whether Manufacturers and Traders Trust Company's total maximum annual fee is more, or equal to or less, than one-half percent of the Trust corpus. In the event Manufacturers and Traders Trust Company's total maximum annual fee is equal to or less than one-half percent of the Trust corpus, appointment by Warren F. Coolidge of Manufacturers and Traders Trust Company as successor trustee is automatic. In the event Manufacturers and Traders Trust Company's total maximum annual fee is more than one-half percent of the Trust corpus, automatic appointment of Manufacturers and Traders Trust Company as successor trustee is precluded, but the preclusion does not exclude Manufacturers and Traders Trust Company from consideration for elective appointment by the Court. Knowing that Manufacturers and Traders Trust Company possesses the expertise and experience that Warren F. Coolidge valued as essential for the administration and investment management of the Trust created under his Will, and that the fees for such provided comparable services are broadly comparable to the fees charged by other corporate fiduciaries, Petitioners commend to the Court's consideration Manufacturers and Traders Trust Company for elective appointment as successor trustee of the Trust. Petitioners acknowledge that Warren F. Coolidge's Will also entitles Respondent in her capacity as a Trust beneficiary to also nominate one or more potential successor trustees for inclusion in the pool of potential successor trustees from which the Court makes a selection. 28. Admitted in part; denied in part. It is admitted that there has been a breakdown of any meaningful relationship among the Respondent and Petitioners. Petitioners do not concur with Respondent's suggestion that it is unlikely that Petitioners will agree with Respondent on an appointment of a successor trustee, provided that such successor trustee is in keeping with the wishes expressed by Warren F. Coolidge in his Will and is in the best interests of the income and residual beneficiaries. Within these parameters, Petitioners are open to consideration of an alternative successor trustee as suggested by either the income beneficiary or by the guardian ad litem for the residual beneficiary. 29. Admitted. Petitioners concur with Respondent that Respondent, as a beneficiary of the Trust at issue, is one of the parties, with Petitioners and any residual beneficiaries being the others, that may nominate a successor trustee for consideration for approval of the Orphans' Court Division of the Cumberland County Court of Common Pleas. By way of further answer, settlor's Will does not give a priority of consideration to any party's nomination, but rather, in the absence of Court approval of an agreement among all of the parties, the selection is left in the discretion of the Court. 30. Denied. The matters alleged are within the exclusive knowledge of Respondent and proof thereof, if relevant, is denied. By way of further answer, Petitioners are open to the consideration of a nomination by Respondent or by the guardian ad litem for the residual beneficiary of the trust. Respectfully submitted, Frey & Tiley, Attorneys for Petitioners Robert G. Frey, Esquire Supreme Court Number 46397 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 Date: July 7, 2006 By: We verify that the statements made herein are true and correct and understand that false statements herein are made subject to the penalties of 18 Pa. C. S. A. S 4904 relating to unsworn falsification to authorities. Dated: July 7, 2006 Phf~oi~- ~ ~ C-cJ-e..:~. Thomas E. Coolidge