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HomeMy WebLinkAbout11-26-07 GOLDBERG KATZMAN, P.C. Neil E. Hendershot, Esq. 320 Market Street Post Office Box 1268 Harrisburg, Pennsylvania 17108-1268 (717) 234-4161 Attorneysfor Objectants ,....., t:.:.:;) ~~.:.) ---' () Go =-'J ~....J ::~;~ :,~: c) -.:; r" -;r- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA (~) n ;.'J :.....-\ ~ ~-J :';.:.~ InRe: James H. Herendeen Trust Under Will Orphans' Court Division No. 1995-00777 OBJECTIONS TO EXECUTOR'S FIRST & PARTIAL ACCOUNT AND TO TRUSTEE'S REQUEST FOR PRINCIPAL INVASION These Objections are filed by Nancy Herendeen, Chari H. Briggs-Krenis, and Solange Reoch as remainder beneficiaries ofthe Residuary Testamentary Trust Under Will of James H. Herendeen, deceased (the "Trust") and as objectants herein (each an "Objectant", and collectively, the "Objectants"), who are represented by their counsel, Neil E. Hendershot, Esq., of Goldberg Katzman, P.C. The Objectants hereby state their objections to the First and Partial Account of the Trust, which covers the period from November 10, 1995, to August 27,2007 (the "Trust Account"), filed by Manufacturers & Traders Trust Company, as the successor trustee of the Trust, with this Court for audit on November 27,2007, at 9:00 a.m., and also to a related, but undated "Petition for Adjudication / Statement of Proposed Distribution" (the "Trust Petition"), also filed by the Trustee, as petitioner, certified by Jean D. Seibert, Esq., as counsel for the Trust, as more fully set forth hereinafter. 1 '"" :;: ._~::) (-n ~3 -n - ,~-- .;=--, .Tl \~-. C)C~ ~'I "~.'1-'1 . -'q ~; C") ,- CT' f~.-~C) ",'I< 0) o N '1 ct A. PARTIES & BACKGROUND 1. James H. Herendeen (the "Decedent" or the "Settlor") died on October 1, 1995, a resident of Cumberland County, Pennsylvania. 2. The Estate of James H. Herendeen, deceased (the "Estate") was administered under the above-referenced docket number by Dauphin Deposit Bank and Trust Company. 3. The Last Will and Testament of James H. Herendeen, dated May 27, 1994 (the "Will" or the "Decedent's Will") created a testamentary residuary trust under Item 4 (the "Trust"). 1 4. Dauphin Deposit Bank and Trust Company became trustee of the Trust, which now is represented by Manufacturers and Traders Trust Company (the "Bank" or the "Trustee"). 5. The Decedent's son, James H. Herendeen, Jr. ("James Jr."), survived the Decedent, but subsequently died on September 19, 1994. a. James Jr. was a stepson of the Decedent's third wife, Eleanor F. Herendeen. b. James Jr. was a named beneficiary under Item 4 B (2) of the Decedent's Will and was a contingent beneficiary of the Trust, whose interest terminated upon his death, thereby creating that same interest in his surviving spouse, Nancy Herendeen, and in their heirs and assigns. 6. Nancy Herendeen ("Nancy"), one of the Objectants, is an adult individual who resides at 83 Citrus Park Lane, Boyton Beach, Florida 33436. a. Nancy is a daughter-in-law of the Decedent, due to her marriage to the Decedent's son, James Jr. I Item 4 of the Will provided: "I give, devise and bequeath all the rest, residue and remainder of my property and estate of every kind and nature and wheresoever situate, including all lapsed legacies, bequeaths, and devises, and including any property over which I may have any power of appointment, after the payment of all estate, succession, legacy, or inheritance taxes therefrom, to my Trustee hereinafter named, IN TRUST, for the use and purposes hereinafter set forth:", 2 b. Due to the death of her husband, James Jr., Nancy is a remainder beneficiary of the Trust pursuant to Item 4 B (2) of the Decedent's Will, to the extent of a vested two- fifths (2/5) remainder interest. 2 7. Chari H. Briggs-Krenis ("Chari"), one of the Objectants, is an adult individual who resides at 210 Vassar Street, Rochester, New York, 14607. a. Chari is the daughter of the Decedent from his first marriage. b. Chari was formerly known as (and was identified in the Decedent's Will as) Chari H. Krenis. c. Chari is a step-daughter of the Decedent's third wife, Eleanor F. Herendeen. d. Chari is a remainder beneficiary of the Trust under Item 4 B (3) of Decedent's Will, to the extent of a vested two-fifths (2/5) remainder interest? 8. Solange Reoch ("Solange") is an adult individual who resides at 2917 State Street, Dallas, Texas 75204. a. Solange is a granddaughter of the Decedent. John J. Reoch is her father. She was the daughter of the Decedent's youngest daughter, Mary Jane, who died on September 17, 1993. b. Solange is a remainder beneficiary of the Trust under Item 4 B (4) of Decedent's Will to the extent of a vested one-fifth (l/5) remainder interest.4 9. Eleanor F. Herendeen ("Eleanor") is an adult individual who resides at Room 34, 5501 East Michigan Street, Orlando, Florida 32822. 2 Item 4 B (2) of the Will provided: "Two-fifths (2/5) of the remainder thereof to my beloved son, JAMES H. HERENDEEN, JR., or ifhe is not then living, to his wife, NANCY HERENDEEN, her heirs and assigns." 3 Item 4 B (3) of the Will provided: "Two-fifths (2/5) ofthe remainder thereof to my beloved daughter, CHARI H. KRENIS, or ifshe is not then living, to her issue, per stripes, and not per capita." 4 Item 4 B (4) ofthe Will provided: "One-fifth (1/5) of the remainder thereof shall remain IN TRUST for my granddaughter, SOLANGE REaCH, until she reaches the age of twenty-five (25). The undistributed income may be used for her education or medical expenses in the event of the death of her father, John J. Reoch. When she reaches twenty-five (25), the Trust shall terminate and the principal and any undistributed income shall be paid over to her, or in the event of her prior death, to her issue." 3 a. Eleanor was the third wife of the Decedent, and survived him. b. Eleanor is the lifetime income beneficiary of the Trust, with rights created under Item 4 A of Decedent's Will.s 10. Donald Louser ("Donald") is an adult individual who resides at 102 Half Moon Circle, Lantana, Florida 33462. a. Donald is the son of Eleanor and her first husband. b. Donald is the sole surviving brother of Barbara E. Farrell. c. Upon information and belief, Objectants aver that Donald has served as an agent under a power of attorney, or otherwise conducted activities, on behalf of Eleanor in the State of Florida. 11. Barbara E. Farrell ("Barbara") is an adult individual who resides at 2615 Autumn Green Drive, Orlando, Florida 32822. a. Barbara is the daughter of Eleanor and her first husband. b. Barbara is the brother of Donald. c. Upon information and belief, Objectants aver that Barbara has served as an agent under a power of attorney executed by, has conducted activities for, or acted as a representative of, Eleanor, under the laws of the State of Florida. 5 Item 4 A of the Will provided: "The Trustee shall hold, invest and reinvest the principal ofthis Trust and shall collect and payout all of the net income therefrom in quarter-annual installments, or oftener, in its sole and absolute discretion, to my wife, ELEANOR F. HERENDEEN, during the term of her natural life. In addition to the net income, the Trustee may, in its absolute and uncontrolled discretion, pay to or apply for the benefit of my said wife so much ofthe principal of this Trust as it shall deem needful or desirable, from time to time, for her reasonable health, support and maintenance, taking into consideration the standard of living to which she was accustomed at the time of my death, and any income available to her for such purposes from all sources known to the Trustee; provided, however, that under no circumstances may my said wife compel or force my Trustee to make payment or application of the principal of this Trust. My wife, ELEANOR F. HERENDEEN, shall have the right to live in my house at 50 Circle Drive, East Pennsboro Township, Cumberland County, Pennsylvania, which shall be an asset of the Trust estate, for and during the term of her natural life or so long as she desires to use such premises as a home for herself. The Trustee shall pay from income prior to distribution to my wife all costs of repair and maintenance thereof, including taxes, assessments, insurance and ordinary repairs, and the cost of insurance. Said property shall be insured in a reasonable amount insuring the interest of the remaindermen as well as my said wife. Upon the death of my said wife or at such prior time as she no longer uses said premises as a home for herself, I direct my Trustee to sell said real estate and add the net proceeds thereof to my Trust estate so that my wife shall have the benefit of this additional income for whatever living arrangements she may make." 4 B. OBJECTIONS Obiection to Prior Distribution of Principal 12. Objectants hereby object to the Trustee's distribution on March 15,2007, of $10,522.00, from Trust principal, to or for the benefit of Eleanor, which was set forth on page 32 of the Trust Account in the following entry: Eleanor F. Herendeen 03115/07 Distribution - Discretionary Request - 2006 Shortfall for Living Expens(~s! including Additional t1edi.cal Expenses 10,522.00 Obiection to Proposed Annual Principal Invasion 13. Objectants hereby also object to the Trustee's request for further invasion of the Trust's principal, with distribution to or for the benefit of Eleanor, at a level of 4% of the Trust's "total assets, valued as of the beginning of each calendar year". 14. In the Trust Petition, the Trustee explains and justifies such prior distribution of principal, and requests such further annual invasion of the Trust in Paragraph 10, as follows: 10. Petitioner/Trustee has paid out income to lifetime beneficiary, Eleanor F. Herendeen, now age 99, in monthly installments since December II, 1995. Petitioner/Trustee distributed principal to Eleanor F. Herendeen on one occasion since the inception of the Trust in 1995. On March 15, 2007 Petitioner/Trustee honored a discretionary request of Eleanor F. Herendeen and paid $10,522.00 in principal. This amount was the 2006 shortfaH for living expenses of Eleanor F. Herendeen, including additional medical expenses. Because Mrs. Herendeen is extremely elderly and likely to incur additional living and medical expenses, Petitioner/Trustee respectfully requests the Court to consider the entry of an Order pennitting PetitionerlTrustee to distribute, in addition to aU income oftlIe Trust, an amount of principal per year not to exceed 4% ofthe total assets of the Trust, valued as of the beginning of each calendar year, for living and medical expenses of Eleanor F. Herendeen that it deems appropriate and in keeping with the language of the Trust under Will of James H. Herendeen. 15. Furthermore, in Paragraph 13. of the Trust Petition, the Trustee requests as follows: 13. It is the position of the Petitionerrrrustee that it be pennitted to make distributions of principal for the benefit of Eleanor F. Herendeen,.as it dee~s ap~ropriate, in light of the. advanced age of the life tenant, provided that Trustee takes mto consideratIOn all other sources of me orne to the life tenant, said principal distribution not to exceed 4% of the total value of tho Trust, valued at the beginning of each calendar year. This distribution is in addition to distributions of aU income to the life tenant, Eleanor F. Herendeen. 5 c. SUBSTANTIATION OF OBJECTIONS Applicable Statutory Law 16. The Pennsylvania Uniform Trust Act6 (the "P A UTA") applies to administration of the Trust pursuant to Section 7702 thereof. 17. Each of the Objectants is a "beneficiary" of the Trust, pursuant to P A UTA Section 7703, as "a person that: (1) has a present or future beneficial interest in a trust, vested or contingent". 18. The Trustee has received "knowledge"? of certain facts through communications from the Objectants regarding the subject matter of these objections. 19. The Trustee is bound to administer the Trust in accordance with P A UTA Section 77058, which requires in this case that the provisions of the Decedent's Will must prevail. 6 The P A UTA is found in the Pennsylvania Probate, Estates & Fiduciaries Code, Title 20, Pa. Consolidated Statutes, in Chapter 77, effective November 6,2006. 7 P A UTA Section 7704 defines "knowledge", as follows: ~ 7704. Knowledge - UTC 104. (a) When person has knowledge.--For the purposes of this chapter and subject to subsection (b), a person has knowledge ofa fact involving a trust if the person has: (I) actual knowledge of it; (2) received a notice or notification of it; or (3) reason to know it from all the facts and circumstances known to the person at the time in question. b) Employees.--For the purposes of this chapter, an organization that conducts activities through employees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having responsibility to act for the trust or would have been brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence ifit maintains reasonable routines for communicating significant information to the employee having responsibility to act for the trust and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual's regular duties or the individual knows a matter involving the trust would be materially affected by the information. 8 P A UTA Section 7705 provides, in part, as follows: ~ 7705. Trust instrument controls; mandatory rules - UTC 105. (a) Trust instrument controls.--Except as provided in subsection (b), the provisions ofa trust instrument prevail over any contrary provisions of this chapter. 6 20. The Trustee has a duty to administer the Trust for all its "beneficiaries".9 21. The Trustee has a duty to administer the Trust "impartially" with regard to its various beneficiaries, considering their respective interests.10 22. The Trustee has a duty to respond to a beneficiary's reasonable requests.l\ Specification of Obiections 23. Under Item 4 A of the Will, the Trustee can, "in its absolute and uncontrolled discretion, pay to or apply" to Eleanor certain amounts of principal of the Trust, subject, however, to certain restrictions or conditions. (b) Mandatory rules.--Notwithstanding a contrary provision in the trust instrument, the following rules apply: * * * (2) The duty of a trustee to act in good faith and in accordance with the purposes of the trust as set forth in section 7771 (relating to duty to administer trust - UTe 801). * * * 9 P A UTA Section 7771 provides as follows: ~ 7771. Duty to administer trust - UTC 801. Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its provisions and purposes and the interests of the beneficiaries and in accordance with applicable law. 10 P A UTA Section 7773 provides as follows: ~ 7773. Impartiality - UTC 803. If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing and distributing the trust property, giving due regard to the beneficiaries' respective interests in light of the purposes of the trust. The duty to act impartially does not mean that the trustee must treat the beneficiaries equally. Rather, the trustee must treat the beneficiaries equitably in light of the purposes of the trust. II P A UTA Section 7776 provides as follows: ~ 7780.3. Duty to inform and report. (a) Duty to respond to requests.--A trustee shall promptly respond to beneficiary's reasonable request for information related to the trust's administration. 7 24. With reference to that specific language of the Decedent's Will, PA UTA Section 7774.4 requires that the Trustee shall exercise such a discretionary power "in good faith and in accordance with the provisions and purposes of the trust and the interests of the beneficiaries, notwithstanding the breadth of discretion granted to a trustee in the trust instrument", which includes "the use of such terms as "absolute," "sole" or "uncontrolled.,,12 (Emphasis Added.) 25. Under Item 4 A of the Will, the Trustee must take into account the clear intention of the Settlor that balanced the interest of the income beneficiary versus those ofthe remainderpersons (the Objectants).13 26. Furthermore, the Trustee must consider Eleanor's limited ability to request principal of the Trust, pursuant to Item 4 A of the Will, which provides: "[U]nder no circumstances may my said wife compel or force my Trustee to make payment or application of the principal of this Trust." 27. Furthermore, the Trustee must consider other available assets of Eleanor, pursuant to Item 4 A of the Will, which provides that it must "tak[ e] into consideration the standard of living to which she was accustomed at the time of my death, and any income available to her for such purposes from all sources known to the Trustee ...." This is a clear, expressed intention by the Settlor of the Trust. 14 12 P A UTA Section 7774.4 provides as follows: ~ 7780.4. Discretionary powers. The trustee shall exercise a discretionary power in good faith and in accordance with the provisions and purposes of the trust and the interests of the beneficiaries, notwithstanding the breadth of discretion granted to a trustee in the trust instrument, including the use of such terms as "absolute," "sole" or "uncontrolled." 13 Under Pennsylvania law, a settlor's intent must be inferred "from all the language within the four corners of the trust instrument, the scheme of distribution and the circumstances surrounding the execution of the trust instrument." Farmers Trust Co. v. Bashore, 498 Pa. 146, 150,445 A.2d 492, 494 (1982). 14 When a Trustee has been given discretionary power to invade the principal, Pennsylvania courts allow them to do so without considering the beneficiary's independent assets only when the court finds no evidence of contrary intent by the settlor. See: Tashiian, 375 Pa. Super. at 226. Here there is a clear contrary intention expressed by the Settlor. 8 28. It is believed and therefore averred that Eleanor has, or had, substantial independent financial resources available to her from which to supplement income distributions from the Trust. 29. More specifically, the Objectants believe and aver, as follows: a. Eleanor's two children, both Donald and Barbara, were involved in Eleanor's financial matters, from time to time for at least the past seven years, likely as agents under a power of attorney. b. During his lifetime, the Decedent has assisted Eleanor in managing assets that she had inherited with a value of approximately $400,000. c. Of these inherited assets, approximately $200,000 were in the form of two mortgages each paying 8% interest. One such mortgage was owed by Eleanor's granddaughter upon a real estate in North Carolina (a child of Donald), and the other such mortgage was owed upon real estate in the West Shore area of Cumberland County, Pennsylvania, by the daughter of a friend, Anna Helfer (recently deceased, late of Mechanicsburg, P A). d. The balance of the inherited assets, approximately, $200,000 was held in securities managed by Dean Witter, Inc., in Harrisburg, Pennsylvania. e. When the Decedent wrote his Will, he knew about Eleanor's separate assets. More specifically, the Decedent knew about the mortgages and the securities owned by Eleanor, since he assisted in managing them for her. f. Barbara took Eleanor to a financial advisor in Florida, and sometime thereafter the two mortgages were transferred away from Eleanor. One of the mortgages was transferred to or for the benefit of Donald, and the other mortgage was transferred to or for the benefit of Barbara, both with no consideration. g. These transfers of mortgages to or for the benefit of the children of Eleanor's first marriage disadvantaged Eleanor in two ways: Removal of principal assets otherwise available as a financial resource for her care; and removal of an ongoing income stream that could be as high as $32,000 annually (depending upon the outstanding principal balances of the mortages). 9 h. Objectants believe and aver that such transfers were done intentionally by the children of Eleanor's first marriage not for the benefit of Eleanor, but for their own self-interest. If such transfers occurred, and if Donald and/or Barbara acted in the capacity as an agent under a power of attorney, then such transfers would evidence their conflict of interest, and violation of fiduciary duties. 1. Based upon the Decedent's earnings record, Eleanor qualifies for the maximum social security, which is approximately $1,800 per month. This would result in benefits of approximately $21,600 annually, not the $8,232 reported on the attachment to the Trust Petition. Objectants demand proof of such reported data. J. Eleanor worked as an employee of the Commonwealth of Pennsylvania for many years, and was vested in its State Employees Retirement System. Yet the attachment to the Petition only lists a pension of $632 annually for such service (only approximately $52.67 monthly). Objectants demand proof of such reported data. k. The attachment to the Petition lists a total income for Eleanor of $31 ,026. However, a notice of refund regarding her income tax return for the year 2006, which was attached to the Petition, lists a "gross income" for Eleanor of $53,711. Objectants demand proof of such reported data. 1. Ruth Ann McMillan ("Ruth Ann"), of the Bank, had contacted Barbara, and suggested that the principal of the Trust could be invaded for Eleanor's benefit, and Barbara apparently responded on behalf of Eleanor. m. Thereafter, in early 2007, the Trustee sent a letter to the beneficiaries requesting permission to make a $10,000 principal invasion of the Trust for the benefit of Eleanor. n. This request upset the Objectants; and one of them, Chari, then talked to Ruth Ann at the Bank expressing their dissatisfaction. Chari also told Ruth Ann about the $400,000 in assets that Eleanor had once. 10 o. John Campbell, Ruth Ann's boss, indicated that there would be a meeting when the $10,000 proposed principal invasion would be considered by the Bank's Trust Committee, and that the Objectants could have input. p. Instead, one week later, the Bank sent a letter saying that the principal distribution to Eleanor had been approved. q. The Objectants first learned about the Trustee's proposed request for further annual invasions of principal when the Trustee's Account was filed. r. Chari called recently for Eleanor, but Barbara answered the phone. Chari asked where Eleanor's money went. Barbara said that the money is almost all gone, and she would not give any explanation. She said that it is in the hands of the lawyers now. 30. The Trustee must consider these assets that were transferred from Eleanor without consideration, when deciding whether to invade the corpus of the Trust. 31. If Eleanor's assets were dissipated, her claim should go to those assets. She should not seek further support from the Trust by way of a principal invasion to the detriment of the remainderpersons.15 32. To ignore transfers without consideration by the income beneficiary, and to permit invasions of Trust principal where insufficiency is then averred, would defeat the intention of the Settlor, sanction abuse of the Trust's life tenant by non-beneficiaries of the Trust, and severely disadvantage the remainderpersons (the Objectants).16 15 In Lang v. Department of Public Welfare, 515 Pa. 428, 528 A.2d 1335 (1987), the Pennsylvania Supreme Court held that a will creating a trust for the support and maintenance of the beneficiary does not create an irrebuttable presumption that all of the beneficiary's living expenses are to be paid out of the trust. See also Seachrist's Estate, 362 Pa. 190,66 A.2d 836 (1949) (interpreting will as providing that beneficiary must prove dependency before tapping trust principal). In Lang, the Pennsylvania Supreme Court clarified the standard to be used when determining when a beneficiary with independent assets may force payment of trust assets. "We must.. .determine whether a settlor, here the testator, intended that trust assets be used to support a beneficiary, regardless of the availability of other resources." Lang 515 Pa. at 441. 16 Other jurisdictions have held similarly. See Hamilton v. Bank of America, 41 Cal. 2d 166,258 P.2d 1009 (1953) (where the Supreme Court of California held "[u]nless the language of trust instrument affirmatively reveals an intention to make a gift of the stated benefaction regardless of beneficiary's other means, the trustee should consider such other means in exercising his discretion to disburse the principal"). 11 33. It is believed and therefore averred that Eleanor caused, or allowed to occur, an intentional depletion of her independent financial assets though gift or other devise. 34. Dissolution of assets by a beneficiary in order to reach the principal of a trust is wrongful. 17 35. By wrongfully depleting her personal assets, Eleanor breached a fiduciary duty that she, as a beneficiary, owes to Objectors, as other beneficiaries of the Trust. 36. Because the Will granted Eleanor a life estate in Settlor's home, (a Trust asset subsequently liquidated), and because the Will gives the Trustee the discretion to distribute principal to Eleanor from the trust, it is believed and therefore averred that Eleanor retains a life estate in the Trust principal. 18 37. As such a life tenant, Eleanor is considered a trustee of the Trust principal as relates to the remainderpersons, and her conduct must be investigated as to waste or misappropriation of assets that would deplete the interests of the remainderpersons in the TruSt.19 38. By wrongfully and intentionally dissipating her individual financial assets, or by allowing such to occur for the benefit of others, and now initiating a request for InVaSIOn of the Trust principal, Eleanor has breached her fiduciary duties to Objectors; and the Trustee is bound to defend against such actions by or on behalf of a beneficiary. 17 Other jurisdictions have refused to allow a beneficiary to invade the principal of a trust after disposing of their independent assets. In Thomas v. Gustafson, 141 Cal. App. 4th 34, 45 Cal. Rptr. 3d 639 (2006) the California Court of Appeals held that a beneficiary was not entitled to the principal of a trust when she depleted her own assets by purchasing a duplex residence and then giving it to her daughter. The court noted that the settlor's intent was for the principal to benefit the reminder beneficiaries. Further, the beneficiary's independent assets, though gifted away, remained available for support. Additionally, the a New York court noted that necessity for the use of the principal by a beneficiary may not be created by gifting away all other assets. A beneficiary may not "give away his property and live upon the principal of [the] estate." In Re Briggs, 180 App Div 752, 168 NYS 597 (1917). Allowing a beneficiary to do so would allow them to, in effect, write the settlor's will by disposing of the trust assets as they see fit. 18 Under Pennsylvania law, "a life estate is one in which the donee has certain powers over the property during his or her lifetime, subject to the rights of remaindermen listed in the donor's will who have an interest in the property upon the death of the donee." In re Estate of Rider, 711 A.2d 1018 (Pa.Super.,1998). (Citing Summ. Pa. Jur.2d,_Property, ~ 5:10.). 19 "Since passage of the Estate Act of 1947 (20 P.S. ~ 301.1), what were formerly legal life estates are now considered trusts and the life tenant is subject to all the rights and duties of a Trustee." In re Kothnv's Estate, 15 Chest. 88 (Pa.Com.PI.,1966). 12 39. To the extent that Barbara, Donald, or any other third person, has benefitted from a transfer of assets from Eleanor, then they (or those others who benefitted from receipt of Eleanor's property without consideration), not the Trust, should bear responsibility for the costs of care of Eleanor. D. REMEDIES SOUGHT 40. The Objectors request that the Court disallow the Trustee's request to invade principal of the Trust based on the presentation made in the Trustee's Petition, and further disallow the prior distribution as one taken against principal, instead of an advancement upon Eleanor's income interest. 41. To attain such a remedy, the Objectors request that an answer to these Objections be required both from Eleanor, and from her children, Donald and Barbara. 42. Furthermore, the Objectors request leave of this Court to conduct discovery against Eleanor and her children, Donald and Barbara, to include, but directly not be limited to, agency arrangements, transfers, taxes, assets, income, liabilities, applications of prior distributions, and related matters. 43. The Objectors request the payment of their legal fees and out-of-pocket costs as an expense of the Trust, necessary to defend it and to preserve the integrity of the Trust's principal. Respectfully submitted, Dated: November 26, 2007 ~c/L~ Neil Hendershot, Esq (P A SC ID #23316) Goldberg Katzman P.C 320 Market St., P.O. Box 1268 Harrisburg, P A 17108 Attorneys for Objectants 13 Verification I verify that the statements made in the foregoing documents are true and correct to the best of my information, knowledge and belief I understand that any false statements therein are made subject to the penalties of 18 Pa. C.S.A. g4904, relating to unsworn falsification to authorities. Date: 71~~Hc,~.)../) ,~C{) '7 ( (! , Ita/v.'. . /1 fA.1/: - ~~ Chari . Bt s-Kre. Nov.26. 200711:34AM No. 1935 P. 1/3 Verification I verify that the statements made in the foregoing documents are true and correct to the best of my informati~ knowledge and belief. I understand that any false statements therein are made subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. Date: ll' Zh . Q7 ,~ 1:<~_H Solon e Reoch CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Jean D. Sibert, Esquire Wion, Zulli & Seibert 109 Locust Street Harrisburg, PA 17101 Donald Louser 102 Half Moon Circle Lantana, FL 33462 Barbara E. Farrell 2615 Autumn Green Drive Orlando, FL 32822 Eleanor F. Herendeen Room 34 5501 East Michigan Street Orlando, FL 32822 Mt. Calvary Episcopal Church 125 North 25th Street Camp Hill, P A 17011 GOLDBERG KATZMAN, P.C: Date: November 26, 2007 B;~~/&~ , Neil E. Hende shot, Esquire 153097 14