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HomeMy WebLinkAbout05-11-09,n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION IN RE: TRUST UNDER WILL OF JAMES H. HERENDEEN NO. 1995-0777 AUDITOR'S REPORT N ~ ~~ ~--y _ . _ -i 3 ~ ~_ ± .~ ---. f r t -- ~.. ._. '- ,._.. ,_. '= ~ _ -~ `~ - - ,_-= w ~n w AND NOW this 11`h day of May, 2009, comes Joseph D. Buckley, Esquire, the Auditor appointed in the above captioned matter, and files his report based on the following: 1. James H. Herendeen died October 1, 1995 and on October 11, 1995 a petition for the Probate of James H. Herendeen's Will dated May 27, 1994 and Grant of Letters Testamentary were filed with the Register of Wills of Cumberland County. 2. Said Will established a testamentary trust providing certain benefits to the decedent's wife, Eleanor F. Herendeen, during her lifetime and residuary benefits to Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch. 3. October 25, 2007, the Trustee under the said Will, Manufacturer's and Traders Trust Company, filed a First and Partial Account and also filed a Petition with this Honorable Court, requesting it be permitted to invade the principal of the trust for the benefit of the life beneficiary, Eleanor F. Herendeen, then aged 99 years. 4. On November 11, 2007 Eleanor F. Herendeen filed objections to the said trustee's accounting and raised a New Matter to the said trustee's Petition. 1 5. On November 26, 2007 the said residuary beneficiaries, Nancy Herendeen, Chari H. Briggs- Krenis and Solange Reoch filed exceptions/objections to the said trustee's First and Partial Account and also raised additional issues. 6. By Your Honor's Order dated December 4, 2007, the undersigned as auditor to take testimony, make findings of facts and recommendations to Your Honor and on December 11, 2009, I was notified of the appointment. 7. The undersigned attempted to schedule and did schedule a hearing in this matter; however, the death of the life tenant and scheduling conflicts with the objectors or their counsel, and the departure of one of the objector's attorney, delayed all attempts for a hearing. 8. On March 3, 2009, a hearing was scheduled for May 6 and May 7, 2009 and Notices were sent to all concerned. 9. On May 6 and May 7, 2009, the undersigned conducted hearings and during the afternoon of the second day of hearings, following discussions with the attorneys and all parties in interest, the parties agreed to settle all their differences.. to withdraw all petitions and objections by means of a Stipulated Agreement. 10. The undersigned placed the parties' agreement on the record and received approval for the interested parties' counsel to sign the agreement. (Copy of~ that portion of the transcript is attached). 11. Following receipt of the transcript and circulating drafts between parties, the parties executed the attached agreement and have requested that it be made an Order of Court. 12. The Trustee and all the beneficiaries agree that mutual releases shall be sign precluding the need for any further accounting by the Trustee. When all parties have been properly represented by counsel of their choosing, and in the present matter by extremely competent and astute counselors, the Court should accept and give thanks that the disputing parties' differences have been settled. The fully executed Stipulaed 2 Agreement settles all disputes and will render all matters before the Court moot. Also by permitting the Trustee and the beneficiaries to execute proper releases, this resolution shall preclude additional accountings. I recommend to Your Honor that you accept the Stipulated Agreement and provide that if all terms are met, that the Trustee need not file any additional accounting. I have attached a proposed Order to accomplish the same and humbly thank Your• Honor for allowing me to serve you. 3 Respectfully submitted, 1 THE COURT: I'm going to read the terms, my understanding of it, and I would ask anyone to, if they wish, to stop after each paragraph and correct me if I am wrong in that agreement. And this would be a stipulated agreement dated today, the 7th of May, 2009 by and between the Manufacturers and Traders Trust Company, trustee under the Will of James H. Herendeen, the E~>tate of Eleanor F. Herendeen, Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch, to resolve all differences relating to the administration of the trust under the Will of James H. Herendeen as follows: One, the Trustee, Manufacturers and Traders Trust Company, is withdrawing its petition to invade the trust. Two, the objections raised by E:Leanor F. Herendeen and her successor, the Estate of Eleanor F. Herendeen, are withdrawn, those objections to the first account of Manufacturers and Traders Trust Company under the trust created in the Will of James Herendeen. Three, all parties agree that the Trustee shall pay the amount of $75,000 for unreimbursed expenses for the health and care provided to Eleanor F'. Herendeen during her lifetime and up until the date of her passing to the Estate of Eleanor F. Herendeen. Four, the Trustee, Manufacturers and Traders Trust Company, shall 2 receive a termination fee in the amount of $17, 000, said fee to be paid from the corpus of the trust. Five, the Trustee, Manufacturers and Traders Trust Company, shall also be entitled to additional trust expenses for the completion of documentation to finalize the administration of the trust together with any costs incurred up to the present date in the amount of $13, 000 to be paid as follows: $10,000 from the corpus of the trust, $3,000 from the Estate of Eleanor F. Herendeen. Six, parties agree that the auditor's fees and expenses, $7,000, shall be paid as follows: $4,000 from the Estate of Eleanor F. Herendeen and $3,000 from the Trustee, Manufacturers and Traders Trust Company, said payment not to come from the trust. All parties agree that they shall sign mutual releases releasing any and all partie;~ to this agreement for any actions that they have taken in the administration of the trust or any actions whatsoever. Seven, the Auditor shall make a recommendation to the Court that it enter this agreement as a Court Order provided that all proper releases and/or agreements are signed by all parties to the agreement. Do you want anything else? MR. KATZMAN: Let me just ask a question. I thought the 17, 000 was to be paid toward -- off the record. 3 (Discussion held off the :record.) THE COURT: Now, let's strike ~>aragraphs four and five and replace it with four, the bank shall receive as additional trust expenses for the completion of the documentation necessary to finalize the administration of the trust together with any costs incurred to date in the amount of $30, 000 to be paid as follows : $27, 000 from the corpus of the trust, $3, 000 from the Estate of Eleanor F. Herendeen. Five, the Trustee shall waive any and all termination fees which could be assessed to the trust. I'm going to put that in paragraph two where I said the objectors in the Estate of, or Eleanor F. Herendeen estate, I'm going to add an additional sentence: The objections of Nancy Herendeen, Chari H„ Briggs-Krenis and Solange Reoch to the first account of Manufacturers and Traders Trust Company, trustee under the trust created under the Will of James Herendeen arf= withdrawn. We' 11 add an additional paragraph prior to the last paragraph. The Trustee, Manufacturers and Traders Trust Company, shall, following the entry of the Court' s Order, begin to transfer the assets of the trust to the remaindermen and shall do so as soon as practicable. Let's change the paragraph 3. We're going to change that to all parties agree that the Trustee shall pay the amount of $68,000 for unreimbursed expenses and 4 the care provided to Eleanor F. Herendeen during her lifetime and up until the time of her passing to the Estate of Eleanor F. Herendeen and such payment shall be made within five business days of the Order of Court. And we're going to change the Auditor's fees . The parties agree that the Auditor's fees -- excuse me, that' s paragraph 6. The parties agree that the Auditor's fees and expenses of $7,000 shall be paid by the Trustee, Manufacturers and Traders Trust Company. I believe it was entitled the first and final account with schedule of proposed distribution and a petition for an adjudication and statement of proposed distribution October -- I'm reading from the docket. Let's strike that. Paragraph number one, we'll correct that to state, the Trustee, Manufacturers and Traders Trust Company, is withdrawing its petition for adjudication of the trustee. Anything else? If I can have that last part dome and in the office tomorrow. We'll have that prepared to my office tomorrow. I will have it to your offices tomorrow, and I want signatures on it and have it faxed back to our office. What I will do, I will make a signature page individually for each. 5 Now, are the parties going to be here, or do we want to just sign it by counsel? Is it agreed it will be signed by counsel? MR. BRADSHAW: Yes. MR. KATZMAN: One of the parties is in Texas, so that's better for us. THE COURT: So we will sign it by counsel and I will send that to you individually. I' 11 overnight it to you, and I will have you sign just the signature page so I can have it back. Please send it back to our office, and I will present it to the Judge on Monday, if you can have it back to our office by Monday. And I will do a recommended Order that the Judge accept that, and I'm certain he will. MS. WHITLEY: Return it by fa:x or hard copy by Monday? THE AUDITOR: Hard copy. You will have it -- what I will do is I will send the agreement to you via e-mail. You will sign it and send me your signature page along with the document. Make a copy for yourself and send the entire thing. I will take the individual signature pages because I will leave one page per signature for each party, and I will attach all of that to the agreement and present it to the Court. And I thank you very much for getting this resolved, and we are adjourned. (The hearing adjourned at 5:5"7 p.m.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION IN RE: TRUST UNDER WILL OF JAMES H. HERENDEEN NO. 1995-0777 STIPULATED AGREEMENT OF PARTIES NOW THIS 7th of May, 2009 comes the Manufacturers and Traders Trust Company, trustee of the trust under the Will of James H. Herendeen, the Estate of Eleanor F. Herendeen, Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch, by and through their respective counsel to enter into a stipulated agreement to resolve all differences relating to the administration of the trust under the Will of James H. Herendeen based on the following: WHEREAS, James H. Heredeen died October 1, 1995 and on October 11, 1995 a petition for the Probate of James H. Herendeen's Will dated May 27, 1994 and Grant of Letters Testamentary were filed with the Register of Wills of Cumberland County; WHEREAS, the said Will established a testamentary trust providing certain benefits to the decedent's wife, Eleanor F. Herendeen, during her lifetime and residuary benefits to Nancy Herendeen, Chari H. Briggs-Krems and Solange Reoch. WHEREAS, Dauphin Deposit Bank was named trustee and acted in that capacity until it was subsequently acquired by Allfirst Bank which subsequently was acquired or merged with Manufacturer's and Traders Trust Company, the current trustee of the Trust Under the Will of James H. Herendeen; and WHEREAS, on October 25, 2007, the said trustee, Manufacturer's and Traders Trust Company, filed a First and Partial Account and also filed a Petition with the Court of Common Pleas of Cumberland County, Orphan's Court Division, requesting it be permitted to invade the principal 1 of the trust for the benefit of the life beneficiary, Eleanor F. Herendeen, then aged 99 years; and WHEREAS, on November 11, 2007 Eleanor F. Herendeen filed objections to the said trustee's accounting and raised a New Matter to the said trustee's Petition; and WHEREAS, on November 26, 2007 the said residuary beneficiaries, Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch filed exceptions/objections to the said trustee's First and Partial Account and also raised additional issues; and WHEREAS, by Order dated December 4, 2007, The Honorable Kevin A. Hess, Jr. appointed Joseph D. Buckley, Esquire as auditor to take testimony, make findings of facts and recommendations to the Orphan's Court; and WHEREAS, on August 10, 2008, Eleanor F. Herndeen, the life beneficiary of the said trust, died and thereafter her son, Donald Louser, and her daughter, Barbara Farrell, were named the personal representatives of her estate; and WHEREAS, following various continuances requested by the parties an Auditor's hearing was scheduled and held on May 6, 2009 and May 7, 2009, and WHEREAS, prior to the conclusion of the hearings, the parties notified the Auditor that they had reached an agreement to settle all claims between and among them all; and WHEREAS all the parties and their respective counsel advised the Auditor that the parties were authorizing their respective counsel to execute this agreement and requested that the Orphans Court enter the agreement as an Order of Court, NOW THEREFORE, the parties, by and through their respective attorneys and counsel agree as follows: 1. The Trustee, Manufacturers and Traders Trust Company, hereby withdraws its Petition for Adjudication filed October 25, 2007. 2. The objections filed by Eleanor F. Herendeen and her successor, the Estate of Eleanor F. Herendeen, to the First and Partial Account of Manufacturers and Traders Trust Company of the 2 trust created under the Wili of James Herendeen, are withdrawn. 3. The objections filed by Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch to the first account of Manufacturers and Traders Trust Company, trustee of the trust created under the Will of James Herendeen, are withdrawn. 4. As soon as practicable, following the entry of the Orphans Court Order, the Trustee, Manufacturers and Traders Trust Company, shall begin transferring the assets of the trust to the residuary beneficiaries, Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch. 5. The Trustee, Manufacturers and Traders Trust Company, shall pa.y the sum of $68,000 from the corpus of the trust to the Estate of Eleanor F. Herendeen, representing unreimbursed expenses and the care provided to Eleanor F. Herendeen during her lifetime and up until the time of her passing and such payment shall be made within five business days of the Order of Court. 6. The Trustee, Manufacturers and Traders Trust Company, shall receive as additional trust expenses for the completion of the documentation necessary to finalize the administration of the trust together with any costs incurred to date in the amount of $30,000 to be paid from the corpus of the trust. 7. The Trustee, Manufacturers and Traders Trust Company, waives any and all termination fees which could be assessed against the trust. 8. The parties agree that the Auditor's fees and expenses of $7,000 shall be paid by the Trustee, Manufacturers and Traders Trust Company, $4,000.00 from the corpus of the trust and $3,000.00 from its own accounts. 9. The parties agree that the Trustee, Manufacturers and Traders Trust Company, shall not be required to file any supplemental or final accounting, and that they all shall sign mutual releases releasing any and all parties to this agreement for any actions that they have taken in the administration of the trust or any actions whatsoever and further agree to sign any and all other documentation necessary to complete the same. 3 1.0. T'he .Parties request that the Auditor make a recommendation to the Orphan's Court that it enter this agreement as a Cotut Order provided that all. proper releases and/or agreements are signed by all parties to the agreement. WHEREFORE the parties have his. her, their or its respective attorney set his or her hand and seal on the date as hereinafter noted. Date: ~ $` D °r Mark. D. Bradshaw, Esquire for Manufacturers and "Graders Trust Company, Tnistee of the "Trust Under the Will of James H. Herendeen 4 WHEREFORE the parties have his, her, their or its respective attorney set lus or her hand and seal on the date as hereinafter noted.. Date: ~/ $~~Cj ~ .~'`( , ridget M. Iritley, Faquire for The Estate of Eleanor F. lcrcndeen and Donald. Louser and. Barbara Farrell, as the Personal Representatives of the Estate of Eleanor F. Herendeen. 5 WHEREFORE the parties have his, her, their or its respective attorney set his or her hand and seal on the date as hereinafter noted. Date: .~ / ~ / ~ g Ronald M. Katzman, Esquire f Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch, 6 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION IN RE: . . ~; n ~-~ TRUST UNDER WILL OF -n c7 -C JAMES H. HERENDEEN NO. 1995-0777 ' ~ ~ - .. .., -. -_ :~ W STIPULATED AGREEMENT OF PARTIES y' ~ NOW THIS 7th of May, 2009 comes the Manufacturers and Traders Trust Company, trustee of the trust under the Will of James H. Herendeen, the Estate of Eleanor F. Herendeen, Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch, by and through their respective counsel to enter into a stipulated agreement to resolve all differences relating to the administration of the trust under the Will of James H. Herendeen based on. the following: WHEREAS, James H. Heredeen died October 1, 1995 and on October 11., 1995 a petition for the Probate of James H. Herendeen's Will dated May 27, 1994 and Grant of Letters Testamentary were filed with the Register of Wills of Cumberland County; WHEREAS, the said Will established a testamentary trust providing certain benefits to the decedent's wife, Eleanor F. Herendeen, during her lifetime and residuary benefits to Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch. WHEREAS, Dauphin Deposit Bank was named trustee and acted in that capacity until it was subsequently acquired by Allfirst Bank which subsequently was acquired or merged with Manufacturer's and Traders Trust Company, the current trustee of the T1•ust Under the Will of James H. Herendeen; and WHEREAS, on October 25, 2007, the said trustee, Manufacturer's and Traders Trust Company, filed a First and Partial Account and also filed a Petition with the Court of Common Pleas of Cumberland County, Orphan's Court Division, requesting it be permitted to invade the principal ,, 1 of the trust for the benefit of the life beneficiary, Eleanor F. Herendeen, tihen aged 99 years; and WHEREAS, on November 11, 2007 Eleanor F. Herendeen filed objections to the said trustee's accounting and raised a New Matter to the said trustee's Petition; and WHEREAS, on November 26, 2007 the said residuary beneficiaries, Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch filed exceptions/objections to the said trustee's First and Partial Account and also raised additional issues; and WHEREAS, by Order dated December 4, 2007, The Honorable Kevin A. Hess, Jr. appointed Joseph D. Buckley, Esquire as auditor to take testimony, make findings of facts and recommendations to the Orphan's Court; and WHEREAS, on August 10, 2008, Eleanor F. Herndeen, the life beneficiary of the said trust, died and thereafter her son, Donald Louser, and her daughter, Barbara Farrell, were named the personal representatives of her estate; and WHEREAS, following various continuances requested by the parties an Auditor's hearing was scheduled and held on May 6, 2009 and May 7, 2009, and WHEREAS, prior to the conclusion of the hearings, the parties notified the Auditor that they had reached an agreement to settle all claims between and among them all; and. WHEREAS all the parties and their respective counsel advised the Auditor that the parties were authorizing their respective counsel to execute this agreement and requested that the Orphans Court enter the agreement as an Order of Court, NOW THEREFORE, the parties, by and through their respective attorneys and counsel agree as follows: 1. The Trustee, Manufacturers and Traders Trust Company, hereby witridraws its Petition for Adjudication filed October 25, 2007. 2. The objections filed by Eleanor F. Herendeen and her successor, the Estate of Eleanor F. Herendeen, to the First and Partial Account of Manufacturers and Traders 'Trust Company of the 2 trust created under the Will of James Herendeen, are withdrawn. 3. The objections filed by Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch to the first account of Manufacturers and Traders Trust Company, trustee of th~~ trust created under the Will of James Herendeen, are withdrawn. 4. As soon as practicable, following the entry of the Orphans Court Order, the Trustee, Manufacturers and Traders Trust Company, shall begin transferring the ~~ssets of the trust to the residuary beneficiaries, Nancy Herendeen, Chari H. Briggs-Krenis and Solange Reoch. 5. The Trustee, Manufacturers and Traders Trust Company, shall pay the sum of $68,000 from the corpus of the trust to the Estate of Eleanor F. Herendeen, representing unreimbursed expenses and the care provided to Eleanor F. Herendeen during her lifetime and up until the time of her passing and such payment shall be made within five business days of the Order of Court. 6. The Trustee, Manufacturers and Traders Trust Company, shall receive as additional trust expenses for the completion of the documentation necessary to finalize the administration of the trust together with any costs incurred to date in the amount of $30,000 to 1•~e paid from the corpus of the trust. 7. The Trustee, Manufacturers and Traders Trust Company, waives any and all termination fees which could be assessed against the trust. 8. The parties agree that the Auditor's fees and expenses of $7,000 shall l;~e paid by the Trustee, Manufacturers and Traders Trust Company, $4,000.00 from the corpus of the trust and $3,000.00 from its own accounts. 9. The parties agree that the Trustee, Manufacturers and Traders Trust Company, shall not be required to file any supplemental or final accounting, and that they all shall sign mutual releases releasing any and all parties to this agreement for any actions that they have taken in the administration of the trust or any actions whatsoever and further agree to :;ign any and all other documentation necessary to complete the same. 3 10. "I'he Parties request that the Auditor make a recommendation to the Orphan's Court that it enter this agreement as a Court Order provided that all proper releases and/or agreements are signed by all parties to the agreement. WIII?Rl?FORI? the parties have his, her, their or its respective attorney set his or her hand and seal on the date as hereinafter Hated. Date: ~ $` D I Mark D. Bradshaw, l:~:squire for Manufacturers and "l'raders ~hrust Company, I~~rustee of the T~'rust Under the Will of James H. Herendeen 4 WHEREFORE the parties have his, her, their or its respective attorney set his or her h~~.nd and seal on the date as hereinafter Haled. Date: ~/h'~~, ~~; ~. ~~/ I ridget ~~. 'hitlcy, lsquire for "I'hc Estate of Eleanor F'. 1-lerendeen and Donald. Looser and. Barb~n-a Farrell, as the Personal Representatives of'the Estate of Eleanor 1~•. 1-lererldeen 5 WHEREFORE the parties have his, her, their or its respective attorney set his or her hand and seal on the date as h~,;reinafter noted. i Date: ~ ~ l ~~ ~ Ronald M. Katzman.. Esquire f Nancy Herendeen. Chari H. Briggs-Krenis and Solange Reoch, 6