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HomeMy WebLinkAbout02-12-10 (2) IN RE: ESTATE OF LOTTIE IVY DIXON . Deceased IN RE: ESTATE OF GEORGE F. DIXON, JR. Deceased :ORPHANS' COURT DIVISION :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NO. 21-07-0686 :ORPHANS' COURT DIVISION :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :NO.21-1994-0754 PETITION FOR APPOINTMENT OF ADMINISTRATOR PRO TaEM PURSUANT TO 20 PA. C.S. X4301 TO THE HONORABLE, THE JUDGES OF THE SAID COURT: The petition of George F. Dixon, III and Richard E. Dixon respectfully states that: 1. Lottie Ivy Dixon ("decedent"), died on June 28, 2007 at the age of seventy nine (79), domiciled at 1571 Boiling Springs Road, Boiling Springs, Pennsylvania. 2. Decedent, a widow whose husband, George F. Dixon, Jr., predeceased her on August 28, 1993, left four children to survive her: The petitioners, another son, Marshall L. Dixon ("Marshall"), and a daughter, Charlotte Dixon ("Charlotte"). 3. The decedent's Will ("Will") was probated in the office of the Register of Wills of Cumberland County on July 19, 2007 and is docketed as Will No.: 0686. N A c~of the ~11 ~,~ , ~ -~ -,~y, ; ; r-~,~ t.~ is attached hereto as Exhibit "A". ~,r~ ~ ~ ~ ~ %~ ,~~~~ _ N ~y:~ c::j~ t~~ ~ ~. ~.~ __ ~7 ~,' C~ 4441222 2/9/2010 4. The Will, dated November 15, 2005, names decedent's son, Marshall, as executor, provides for certain specific bequests and devises benefiting Marshall and Charlotte and directs the residue be distributed to the trustees of the decedent's revocable trust ("trust") dated August 19, 1985, which had benefited decedent during her lifetime, to hold in further trust in accordance with the terms of that trust. A copy of the trust is attached hereto as Exhibit "B". The trust directs that the trustees pay the income from the trust at decedent's death to decedent's issue, per stirpes, for a period often years after decedent's death and then to distribute the trust remainder to her then surviving issue, per stirpes. Accordingly, petitioners, and their brother, Marshall, and sister, Charlotte, are current income beneficiaries and contingent remaindermen of the trust. 6. Marshall, in his capacity as executor of decedent's Will, has almost completed the administration of the estate and has filed his account for audit by this court. 7. Marshall filed his Petition for Adjudication and Statement of Proposed Distribution on July 25, 2008. Petitioners responded by filing several objections on August 22, 2008. 8. On December 1, 2008, this Honorable Court appointed Wayne F. Shade, Esquire as auditor and directed that he hear the objections and file a report with this Court. 9. In the course of preparing the Objections and preparing for the hearing scheduled by the auditor with respect to those Objections, petitioners discovered Marshall may have defrauded decedent of at least $1,500,000 between 1994 and the decedent's death in June 2007 ("the Period"). 10. Marshall, born August 8, 1962 and now 47 years old, has never married and has no children. He has lived with his parents or in his parents' home his entire life, except during 4441222 2 his unsuccessful quest to get a college degree and his extensive travels. He has always used his parents' home or post office box as his permanent mailing address. 11. Marshall did not hold a permanent salaried position but invested during the Period in a number of business ventures, including, a truck rental company for the movie industry, Motion Pictures Services, Inc. a/k/a Hollywood Trucks, Inc., a home theater store, GNT Home Entertainment, and an Internet radio station, Mac Radio. 12. Before decedent's death, petitioners believed that Marshall sustained himself financially through his interests in his business ventures. 13. After decedent's death, petitioners learned that these ventures had failed, the relationships were severed or that he withdrew from them as an investor, and that these ventures did not produce financial returns sufficient to sustain Marshall's standard of living during the Period. 14. Despite his notable lack of business success and lack of a salaried position, Marshall led a life of leisure and engaged in lavish spending during the Period. 15. Although Marshall effects a slovenly appearance on occasion, during the Period he purchased and filled the rooms of decedent's house with expensive clothes, sportswear and shoes. 16. During the Period, Marshall purchased and filled rooms of decedent's house with expensive electronic items including an elaborate home entertainment system and numerous personal computers and cameras. He has also added expensive exercise equipment, resurfaced the garage floor for his car collection and installed an indoor pool in decedent's house. 17. Marshall enjoys and, during the Period, purchased and restored vintage cars including an Austin-Healey 3000. 4441222 18. Marshall traveled extensively throughout the world during the Period. The travels included numerous scuba diving trips. During the Period, he spent weeks, sometimes as much as a month, in Australia, England, Italy, Thailand and the Bahamas. Thailand is a destination to which he has traveled many times. Marshall has also rented hotel suites and homes/villas during recreational jaunts through the U.S., including California and Utah. 19. Marshall used decedent's charge cards and funds in the decedent's brokerage and bank accounts during the Period to purchase goods and services benefiting himself, and not related to his room and board at decedent's home, without decedent's knowledge and permission and never reimbursed decedent. 20. Marshall used decedent's charge cards and funds as a means of investing in his business ventures. 21. The decedent and Marshall both had brokerage accounts with a local Legg Mason broker, and a subsequent broker. During the Period checks issued from the decedent's accounts were paid to or for the benefit of Marshall. During the Period, there were also electronic transfers of assets from decedent's accounts to or for the benefit of Marshall, an electronic feat of which decedent was incapable. 22. Decedent had a personal bank account, account # 28675576 originated at a predecessor bank to M&T Bank, which had been converted to a joint account with Marshall as co-owner in 2002. As reported on the decedent's Pennsylvania Inheritance Tax Return by Marshall, at the decedent's death, the account had a balance of $33.25. 23. While certainly aware that decedent was probably subsidizing Marshall's room and board during the Period, petitioners were not aware until after decedent's death of the 4441222 4 extensive cash transfers to or for the benefit of Marshall allegedly made by the decedent during that Period. 24. Throughout the Period, petitioner, George F. Dixon, III, lived in Colorado and petitioner, Richard E. Dixon, lived in Missouri, then Florida, and because of the distance, neither petitioner was able to visit the decedent frequently. 25. Petitioners' sister, Charlotte, also lived outside Pennsylvania during the Period but visited or stayed with the decedent much more frequently than George or Richard. 26. Petitioners became aware after the decedent's death of the transfers of decedent's assets during the Period to or for the benefit of Marshall as a result of post-death discovery proceedings Marshall permitted in the Fall of 2009 in an attempt to convince petitioners that such transfers either had not occurred or were not significant. 27. Marshall admitted during the discovery proceedings that he had transferred decedent's assets to or for his benefit without decedent's knowledge. 28. During the Period, decedent, who was frugal by nature, never traveled and only rarely left the house. She stopped driving in 1999. 29. During the Period, decedent's physical health deteriorated dramatically. She was diagnosed with endometrial cancer in the summer of 1999 and underwent a complete hysterectomy, radiation and chemotherapy. In late 1999, she was diagnosed with mild emphysema which became moderate to severe in the Fall of 2002. In the Fall of 2001 decedent fell at her home and broke her hip, which required complete replacement surgery. During that same time, decedent was diagnosed with osteoporosis. In the Summer of 2003 decedent suffered from pneumonia and tachycardia. By that Fall, she was diagnosed with Bowen's disease, a form 4441222 5 of skin cancer. In early 2007, decedent was diagnosed with bone cancer, also known as osteosarcoma. 30. Decedent's mental health began to deteriorate in 1999. That year, she was diagnosed, by her primary care physician, Phillip A. Neiderer, D.O., with psychosis, which manifested itself as auditory hallucinations, paranoid delusions and wandering, and decedent was medicated for it during the Period. Those closest to the decedent observed signs of dementia as well, and by 2004, Dr. Neiderer noted that the decedent clearly had dementia, she was suffering from cognitive decline, her personal hygiene had fallen and she seemed depressed. 31. During the Period, decedent was under heavy medication. Prior to 1999, she was prescribed Haldol for her psychosis, which was changed in the summer of 1999 to Risperdal. Following her surgery and radiation for endometrial cancer, in late 1999 decedent was prescribed Megace as her ongoing chemotherapy treatment. After her osteoporosis diagnosis in 2001, decedent was prescribed Fosamax and in late 2001, decedent was prescribed Keflex to reduce the effects of her emphysema. By 2004, decedent was prescribed Lexapro for her depression. 32. Decedent customarily had at least two glasses of wine daily, although the combination of alcohol and anti-psychotic medications, Haldol and Risperdal, heightens the medications' known side effects, including drowsiness, dizziness, lightheadedness and blurred vision. 33. Decedent, a sweet and spiritual woman, was both passive and dependent by nature. 34. Decedent became dependent upon Marshall when she stopped driving. During the Period, decedent was unable to balance her checkbook and Marshall oversaw the decedent's financial matters, including the payment of bills as the decedent. Marshall also facilitated the 4441222 6 decedent's estate planning, including calling and meeting with her attorney as well as taking her to her appointments with her attorney. During the Period, Marshall also assembled decedent's data for the preparation of her income tax returns by her accountant. He was also responsible for buying groceries, alcohol and personal items for the decedent. 35. After 1999, Marshall became a communications intermediary for decedent, and decedent began to rely on him to verify, interpret and react to information and advice provided by her attorneys, trust officer and petitioner. 36. During the last years of decedent's life, Marshall made it difficult for petitioners and their sister to gain access to the decedent by telephone and made intolerable any efforts to have extended visits with decedent. Marshall's explosive temper and imposing size -Marshall is 6'6" and weighs over 300 pounds - created an environment of intimidation within the household. 37. During the period, Marshall withheld information from the petitioners about the decedent's health. He never advised petitioners of decedent's scheduled surgeries and he did not inform petitioners of decedent's mental deterioration and episodes of psychosis until one month before her death. Marshall asked others not to reveal to petitioners information concerning the decedent's physical and mental health. 38. Decedent's average annual income during the Period from her husband's pension, her IRA, social security, inter vivos trust and the trust established for her benefit by her husband was at least $300,000. 39. During the Period, decedent's average annual living expenses, including room and board for Marshall, were approximately $109,000.00. The decedent employed household help consisting of apart-time cleaning lady/cook, part-time handyman and apart-time nurse. Her 4441222 7 sister, Mathilda Carter, also provided assistance during the summer months when she was in town. 40. Decedent never named Marshall agent in a General Financial Power of Attorney, and when her trust officer and lawyer discovered Marshall had managed to have himself named as an agent in a limited Power of Attorney over one of her bank accounts in 2005, they had his name stricken as such shortly thereafter. 41. Decedent named M&T Bank agent in a General Power of Attorney dated February 7, 1994 which was superseded by another General Power of Attorney dated May 11, 2005 in which M&T Bank was also named agent. 42. Marshall, as an executor, has a duty to gather decedent's assets, including decedent's assets in his possession and the possession of others, and add them to and administer them as part of the decedent's estate. 43. If an executor has reason to know someone has taken possession of decedent's assets improperly, the executor has a duty to engage in discovery to determine the circumstances under which those assets were transferred including the obligation to determine whether the transfers were improper and whether any alleged gifts were made as the result of undue influence. 44. If, as a result of such investigation, an executor determines that someone wrongfully obtained and holds such assets, the executor has a duty to recover them. 45. The procedures available to an executor to collect assets in the possession of others include the use of a petition seeking an order to have those assets turned over and a petition to impose a constructive trust, which remedies are available in orphans' court proceedings. 4441222 $ 46. Marshall, who petitioners believe wrongfully took decedent's assets during the Period, is in a conflict of interest position and cannot be expected to perform his duties as executor with respect to the assets transferred to him, and payments made by charge card and from brokerage and bank accounts to him or for his benefit, by decedent without her knowledge and permission and gifts he procured from the decedent through undue influence during the Period and their recovery on behalf of the estate. 47. The appointment of the administrator pro tem pursuant to 20 Pa. C.S. §4301 for the limited purpose of discharging these duties is appropriate. 48. The appointment of an administrator pro tem would obviate the need for the removal of Marshall as executor, which remedy could be deemed harsh and unnecessary at this stage of the estate administration. 49. Petitioners are not beneficiaries of decedent's Will and, even if they were, they would not have standing to pursue the aforesaid remedies because only the executor has that right and obligation. 50. Even if they had standing, petitioners would prefer for the sake of family harmony to have a dispassionate objective third party pursue the aforesaid remedies. 51. The expense of the investigation and recovery of the assets by the administrator pro tem would be borne by the estate, which is the appropriate source of payment, rather than the petitioners. 52. Prior to petitioners' retention of their current counsel, they had not been advised of the necessity of seeking the appointment of an administrator pro tem to investigate the actions taken to the detriment of the decedent by Marshall during her lifetime in view of his role as the executor and to pursue efforts to recover any assets taken by Marshall. 4441222 9 53. While the appointment of an administrator pro tem would necessarily delay the termination of the estate administration, the delay would affect monetarily only the petitioners, their brother, Marshall, and their sister, Charlotte, who are directly involved in the controversy. Furthermore, the Petitioners and their siblings are not entitled to a distribution of the residue, immediately, in any event. They are entitled only to the income from the residue, once it is distributed to the testamentary trust, for a period often years after the decedent's death and only thereafter is the principal distributable to them. 54. Petitioners timely filed objections to Marshall's account as executor, which included objections to this failure to account for assets taken by him and for his benefit during decedent's lifetime, and the hearings set by the auditor on those objections, although scheduled, have not yet occurred. 55. This Honorable Court has jurisdiction over this matter because the executor has filed his account which is now before this Court for audit. 56. Because the necessary parties, Marshall in both capacities as an individual and as executor, and the residuary legatee, M&T Trust Company, are already before your Honor and subject to this Court's jurisdiction, the issuance of a citation is unnecessary. 57. Upon filing the petition, a true and correct copy of the petition will be served upon all interested parties. WHEREFORE, petitioners respectfully request that Your Honor: (1) appoint an individual as an administrator pro tem for the Estate of Lottie Ivy Dixon, Deceased, for the limited purposes of: (a) determining what, if any, assets were wrongfully obtained from the decedent by the executor of the estate, Marshall L. Dixon, in his individual capacity from 1994 to the decedent's death in June 2007 and engaging in such discovery and retaining such experts, 4441222 10 including a forensic accountant and handwriting expert, as deemed necessary to assist in that assignment, (b) taking such action as is necessary to recover for the estate such assets that were so obtained, (2) continue the audit of the executor's account until the administrator pro tem has completed his aforesaid duties and (3) direct the auditor to proceed with his duties and the issuance of his report except as it may bear on the matters within the purview of the administrator pro tem. Respectfully submitted, OBERMAYER REBMANN MAXWELL & HIPhEL LLP _~ _. By: Paul C. Heintz, Esq Attorney ID #02906 Walter W. Cohen, Esq. Attorney ID #12097 Nina B. Stryker, Esq. Attorney ID #36531 Erin E. McQuiggan, Esq. Attorney ID #205673 One Penn Center, 19t" Floor 1617 JFK Boulevard Philadelphia, PA 19103 215-665-3212 215-665-3165 (fax) paul.heintz("a~obermayer. com 4441222 11 VERIb~CATION • • • I, George F. Dixon, III, verify that I am one of the petitioners in the foregoing•Petition and that the facts contained therein are true and correct to the best of my knowledge, information and•belief; and that this verification is subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. George F. ixon, III 4441222 VERIFICATION I, Richard E. Dixon, verify that I am one of the petitioners in the foregoing Petition and that the facts contained therein are true and correct to the best of my knowledge, information and belief; and that this verification is subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: 2 ~ ~ ~~-~-- Richard E. Dixon 4441222 CERTIFICATE OF SERVICE I, PAUL C. HEINTZ, ESQUIRE, certify that on this date, I have served a true and correct copy of the foregoing petition on behalf of George F. Dixon, III and Richard E. Dixon upon the following, by first class mail, addressed as follows: Daniel L. Sullivan, Esq. Saidis Flower & Lindsay 2109 Market Street Camp Hill, PA 17011 Elizabeth P. Mullaugh, Esq. Kimberly M. Colonna, Esq. McNees Wallace & Nurick 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 Mark D. Bradshaw, Esq. Stevens & Lee Harrisburg Market Square 17 North Second Street, 16`" Floor Harrisburg, PA 17101 Charlotte Dixon 323 Bayview Street Camden, ME 04843 Date: , 2010 Wayne F. Shade, Esq. 53 West Pomfret Street Carlisle, PA 17013 Paul C. Heintz, sq. 4441222 EXHIBIT A ~1 C ~ ~ `~a N ~~ T~ 'C' 4441222 1~ LAST WILL AND TESTAMENT OF - _ ~, c,.: _ 04 cr ; _. LOTTIE IVY DIXON ` _ cV "~ ~- ` M' ~ j ~~ ~" ~ I, LOTTIE IVY DIXON, of Monroe Township Pennsylvania Cumberland County _ , , , __ ca, b~img of sound and disposing mind and memory, do make, publish and declare this to be my Last Will and Testament, hereby revoking all Wills and Codicils by me at any time previously made. I am the widow of George F. Dixon, Jr., and the children born of our marriage are GEORGE F. DIXON, III, RICHARD E. DIXON, CHARLOTTE I. DIXON and MARSHALL L. DIXON. As used herein the term "my children" shall refer to the aforelisted children. ROSE BALCONY. I give and bequeath all of my interest in the real property and the improvements situate thereon known as Rose Balcony, consisting of approximately four acres, containing both a main house and a guest house with addresses of 1571 and 1577 Boiling Springs Road, respectively, and the 11 acre unimproved lot contiguous thereto, said properties situate in Monroe Township, Cumberland County, Pennsylvania and being more particularly described in the Cumberland County Recorder of Deeds Office at Deed Book S, Volume 18, Page 69 and Deed Book T, Volume 28, Page 528, to my son, MARSHALL L. DIXON, if he survives me. If my son, MARSHALL L. DIXON, does not survive me, this bequest shall lapse. Page 1 of 9 Pages ssssoe. ~ 2. ROSE BALCONY -TANGIBLE PERSONAL PROPERTY. I give and bequeath all of the household furniture and furnishings, books, pictures, china, crystal, appliances, silverware, wearing appazel and all other like articles of household or personal use or adornment located within the property known as Rose Balcony, said property more specifically described in ITEM 1 above, to my son, MARSHALL L. DIXON, if he survives me. If my son, MARSHALL L. DIXON, does not survive me, this bequest shall lapse. 3. CO-OPERATIVE APARTMENT NO. 20. I devise and bequeath my interest in the property known as Co-Operative Apartment No. 20 of La Coquina, Inc., situate at 1956 South Ocean Lane, Fort Lauderdale, Broward County, Florida, and all of the household furniture and furnishings, books, pictures, china, crystal, appliances, silverware, wearing apparel and all other like articles of household or personal use or adornment located therein, to my son, MARSHALL L. DIXON, if he survives me. If my son, MARSHALL L. DIXON, does not survive me, this bequest shall lapse. 4. CO-OPERATIVE APARTMENT N0.20. I devise and bequeath my interest in the property known as Co-Operative Apartment No. 22 of La Coquina, Inc., situate at 1956 South Ocean Lane, Fort Lauderdale, Broward County, Florida, and all of the household furniture and furnishings, books, pictures, china, crystal, appliances, silverware, wearing apparel and all other like articles of household or personal use or adornment located therein, to my daughter, CHARLOTTE I. DIXON, if she survives me. If my daughter, CHARLOTTE I. DIXON, does not survive me, this bequest shall lapse. Page 2 of 9 Pages 5. TANGIBLE PERSONAL PROPERTY. I give and bequeath all of my household furniture and furnishings, automobiles, boats, books, pictures, jewelry, china, crystal, appliances, silverware, wearing apparel and all other like articles of household or personal use or adornment not disposed of in the prior Items of this Will to my children then living to be divided among them in equal shares. If any such articles cannot be fairly divided or distributed in kind in the opinion of my Executor, such articles shall be sold and the proceeds thereof shall pass as a part of my residuary estate. 6. LEGG-MASON ACCOUNT. I give and bequeath my Legg-Mason Account (No.360-00713) to my son, MARSHALL L. DIXON, and my daughter, CHARLOTTE I. DIXON, as equal tenants in common, or, if one of them should not survive me, to the survivor of them. If neither my son, MARSHALL L. DIXON, nor my daughter, CHARLOTTE I. DIXON, should survive me, this bequest shall lapse. I intend this to be a bequest of only those securities and other assets, if any, which are held in such account at my death. 7. RESIDUE. I give, devise and bequeath all the rest and residue of my property, real, personal and mixed, not disposed of in the preceding portions of this Will, including all property over which I hold a power of appointment {which powers of appointment I hereby exercise in favor of my estate), to the then Trustee of "The Lottie Ivy Dixon Revocable Trust" created by a trust agreement dated August 19, 1985, as amended, between me, as Settlor, and Dauphin Deposit Bank and Trust Company, as original Trustee, to be held, administered and disposed of in accordance with the terms of such trust as the same maybe amended at my date of death. Page 3 of 9 Pages SPENDTHRIFT PROVISION. No interest in income or principal of my estate or any trust created hereunder shall be subject to attachment, levy or seizure by any creditor, spouse, assignee or trustee or receiver in bankruptcy of any beneficiary of my estate or of any. trust created hereunder prior to the beneficiary's actual receipt thereof. My Executor shall pay over the net income and the principal to the beneficiaries herein designated, as their interests may appear, without regard to any attempted anticipation (except as maybe specifically provided herein), pledging or assignment by any beneficiary of my estate and without regard to any claim thereto or attempted levy, attachment, seizure or other process against said beneficiary. 9. SURVIVAL PRESUMPTIONS. Any person who shall have died at the same time as I or under such circumstances that it is difficult or impossible to determine who shall have died first, shall be deemed to have predeceased me. Any person other than me who shall have died at the same time as any then beneficiary of income of my estate or a trust created hereunder or under such circumstances that it is difficult or impossible to determine who shall have died first, shall be deemed to have predeceased such beneficiary. 10. FIDUCIARY POWERS. In the settlement of my estate and during the continuance of any trust created hereunder, my Executor shall possess, among others, the following powers, exercisable without prior court approval, but in all cases to be exercised for the best interests of the beneficiaries: (a) To retain any investments I may have at my death so long as my Executor may deem it advisable to my estate so to do, including securities owned, issued or underwritten by any corporate Executor or any of its affiliates. Page 4 of 9 Pages (b) To vary investments, when deemed desirable by the Executor, and to invest in every kind of property and type of investment, including securities owned, issued or underwritten by any corporate Executor or any of its afl:iliates, or as to which such Executor or its affiliate acts as investment advisor, as the Executor shall deem wise. (c) In order to effect a division of the principal of my estate or for any other purpose, including any final distribution of my estate, my Executor is authorized to make said divisions or distributions of the personalty and realty partly or wholly in kind. If such division or distribution is made in kind, said assets shall be divided or distributed at their respective values on the date or dates of their division or distribution. In making any division or distribution in kind, my Executor shall divide or distribute said assets in a manner which will fairly allocate any unrealized appreciation among the beneficiaries. (d) To sell either at public or private sale and upon such terms and conditions as my Executor may deem advantageous to my estate, any or all real or personal estate or interest therein owned by my estate severally or in conjunction with other persons or acquired after my death by my Executor, and to consummate said sale or sales by sufficient deeds or other instruments to the purchaser or purchasers, conveying a fee simple title, free and clear of all trust and without obligation or liability of the purchaser or purchasers to see to the application of-the purchase money or to make inquiry into the validity of said sale or sales; also, to make, execute, acknowledge and deliver any and all deeds, assignments, options or other writings which maybe necessary or desirable in carrying out any of the powers conferred upon my Executor in this paragraph or elsewhere in this Will. (e) To mortgage real estate and to make leases of real estate for any term. (f) To borrow money from any party, including my Executor, to pay indebtedness of mine or of my estate, expenses of administration, Death Taxes or other taxes. (g) To pay all costs, expenses, legally enforceable debts, funeral expenses and charges in connection with the administration of my estate. Page 5 of 9 Pages (h) To vote any shares of stock which form a part of my estate and to otherwise exercise all the powers incident to the ownership of such stock and to actively manage and operate any incorporated or unincorporated business, including any joint ventures and partnerships, and to incorporate any such unincorporated business, with all the rights and powers of any owner thereof. (i) In the discretion of my Executor, to unite with other owners of similar property in carrying out any plans for the reorganization of any corporation or company whose securities form a part of my estate. (j) To assign to and hold in my estate an undivided portion of any asset. (k) To hold investments in the name of a nominee. (1) To compromise controversies. (m) To disclaim, in whole or in part, any and all interests in property owned by me at the time of my death, including those passing to me by Will, intestacy, contract, joint ownership, operation of law or otherwise. (n) To designate one or more persons or a corporation to act as ancillary fiduciary in any jurisdiction in which ancillary administration may be necessary, such ancillary fiduciary to serve without bond or security and to have all powers, authorities and discretions conferred hereunder. (o) To employ and compensate from income or principal, in the discretion of my Executor, investment and legal counsel, accountants, brokers and other specialists, and, whenever there shall be no corporate Executor in office, a corporate custodian, and to delegate to investment counsel discretion with respect to the investment and reinvestment of any or all of the assets held hereunder. Page 6 of 9 Pages (p) To manage and develop all or any part of any real property that may be owned by my estate, including but not limited to, the power to subdivide (including the dedication of parks, easements or streets, with or without consideration); to obtain the vacation of a plat or adjust boundaries; to submit property to a condominium project and do all acts necessary in connection therewith; to grant options to purchase or to Iease; to construct buildings or to alter or remove buildings, and make such improvements to real property as my Executor determines to be appropriate (including improvements not situated directly on the particular real property); to grant easements or encumbrances of any kind, and to release any interest in the property; and to abandon or demolish any property including an interest in real property deemed by my Executor to be worthless or of insufficient value to keep or protect. 11. EXCULPATORY CLAUSES. In the settlement of my estate: (a) My Executor shall not be personally liable for any loss to my estate or to any beneficiary of my estate resulting from an election made in good faith to claim a deduction as an income tax deduction or as an estate tax deduction. (b) In valuing property in my gross estate for the purposes of any Death Tax, my Executor shall not be personally liable for any loss to my estate or to any beneficiary of my estate resulting from my Executor's decision made in good faith to use a particular valuation date. 12. TAX CLAUSE. I direct that each beneficiary of my estate or of "The Lottie Ivy Dixon Revocable Trust" referred to in ITEM 7 hereof shall pay the inheritance, estate and similar taxes becoming due by reason of my death ("Death Taxes") that are attributable to his or her distributive share of my estate or Trust; provided, however, if any property held in any testamentary or inter vivos trust created by my late husband, GEORGE F. DIXON, JR., is includable in my estate for purposes of any Death Tax, then any Death Tax attributable to the inclusion of any such property in my estate for the purposes of that Death Tax shall be paid out of such property or by the recipients of such property. If any Death Taxes are paid by my Executor, I Page 7 of 9 Pages direct my Executor to obtain reimbursement or contribution for any such taxes paid by my Executor. 13. EXECUTOR POWERS REGARDING BASIS ADJUSTMENT. I hereby authorize my Executor in my Executor's sole and absolute discretion to allocate any adjustments to the income tax basis of assets of my estate to such assets as my Executor deems to be appropriate. I recognize that this power gives my Executor broad latitude which I wish my Executor to exercise while taking into account such factors as my Executor deems beneficial to all of the beneficiaries of my estate. My Executor shall not be liable for any loss to my estate or to any beneficiary of my estate resulting from such allocation made in good faith. 14. EXECUTOR APPOINTMENT. I hereby appoint my son, MARSHALL L. DIXON, as Executor of this Will. If for any reason Marshall L. Dixon. should fail or cease to act, I appoint my son, GEORGE F. DIXON, III, as Executor. If for any reason George F. Dixon, III should fail or cease to act, I appoint my son, RICHARD E. DIXON, as Executor. All references in this Will to my "Executor" shall refer to my originally appointed Executor or to my successor Executor, as the case maybe. Page 8 of 9 Pages 15. WAVER OF BOND. My Executor shall qualify and serve without the duty or obligation of filing any bond or other security. IN WITNESS WHEREOF, I have set my hand and seal to this, my Last Will and Testament, consisting of this and the preceding eight (8) .pages, this 'day of ~~"zr',' ~ ~ 1r' 2005. .:-~ '- n ~~"~~C~ °?'' !~l G%'7 (SEAL) Lottie Ivy Dix We, the undersigned, hereby certify that the foregoing Will was signed, sealed, published and declared by the above-named Testatrix as and for her Last Will and Testament, in the presence of us, who, at her request and in her presence and in the presence of each other, have hereunto set our hands and seals the day and year above written, and we certify that at the time of the execution thereof, the said Testatrix was of sound and disposing mind and memory. EAL) ,,._.. • .j ~7~ ~ (SEAL) ~-- ~~~ (~ Residing at: ~ l ~ ~~ 4 C~___ Residing at: ~~ ~ f~,- ~~- Page 9 of 9 Pages COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF ~~~`~`'`,~ We, LOTTIE IVY DIXON, ~~[~D~/~C-~t ~oand >~tu,G - /L~ , ~` ___~ V the Testatrix and the Witnesses, respectively, whose names are signed to the foregoing instrument, having been sworn, do hereby declare to the undersigned officer that the Testatrix, in the presence of the Witnesses, signed said instrument as her Last Will and Testament, that she signed voluntarily, that each of the witnesses, in the presence of the Testatrix and of each other, signed said Will as a witness and that to the best of the knowledge of each witness, the Testatrix was at the time of sound mind and under no constraint or undue influence. Lottie Ivy Dixon '~_ ~~ ~~ ~ ~ 4-- Subscribed and acknowledged before me by LOTTIE IVY DIXON, the Testatrix, and subscribed and sworn to before me by ' • ~~© and /,~,(~ii,~,~.sC, ~ , the witnesses, on th' ~(~ day of .-~~ , 2005. of y Public y Commission Expires: - (SEAL) COMMONWEALTH OF NENNSYLVANiq Notarial Seal Yvonne R. Durham, Notary Publk; City OI Hamsburg, Dauphin County My Commission Expires Aug. 20, 2009 Member, Pennsylvania Association of Notaries _ ___ y _. -._ ..._.. _... . lRai~am~~~ ~xrr®rr ,(~cc~4,o-n`Ci:~ •~` ~ ti~i' ATTORNEYS AT LAW REVOCABLE AGREEMENT OF TRUST "The Lottie Ivy Dixon Revocable Trust" THIS AGREEMENT is made and entered into this ~LL day of ,~ , 1965, by and between LOTTIE IVY DIXON, of Fort Lauderdale, Florida (the "Settlor"), and DAUPHIN DEPOSIT BANK AND TRUST COMPANY, a banking corporation with its principal office located in Harrisburg, Pennsylvania {the "Trustee"). WITNESSETH: WHEREAS, the Settlor has placed certain assets in the active management and control of the Trustee and said assets are set forth on Schedule A, attached hereto and made a part hereof. WHEREAS, the Settlor may be desirous in the future of placing the active management and control of certain other property in the hands of the Trustee. NOW, THEREFORE, for and in consideration of their mutual covenants and promises, the parties agree as follows: ARTICLE I Trust Assets The Settlor, or any other party or person, may from time to time make policies of insurance on her life, individual retirement account benefits, Keogh benefits, pension plan I ~ benefits and/or profit sharing benefits payable to the-Trustee, or may transfer other assets to the Trustee, subject to the terms of this Agreement, by inter vivas grant or by Will. The trust assets shall include the proceeds of all insurance policies payable to the Trustee, including those now listed on Schedule A and any subsequently made payable to~the Trustee (collectively hereinafter called the "Policies"), and all such other benefits or added assets (collectively the "Trust Assets") and shall be held, administered, distributed and governed by the Trustee, IN TRUST NEVERTHELESS, in accordance with the provisions of this instrument and any amendments hereto. ARTICLE II During the Settlor's Lifetime During .the Settlor's lifetime, the Trustee shall have, hold, manage, invest and reinvest the Trust Assets, collect the income, and pay or apply the entire net income as the Settlor may from time to time direct in writing. The Trustee shall also pay to the Settlor such sums from or portions of the principal of the Trust as the Settlor may from time to time request in writing delivered to the Trustee during the Settlor's lifetime. If, in the Trustee's opinion, the Settlor is at any time unable to act or apply the payments'to the Settlor's best interest and . advantage, the Trustee may apply directly to the Settlor's benefit as much of the income and/or principal of the Trust as -2- the Trustee may, from time to time, deem appropriate for the Settlor's welfare, comfort, support or emergency needs and may add to principal as much of the income as the Trustee deems advisable. ARTICLE III Upon the Settlor`s Death Upon the death of the Settlor, the Trustee shall have, hold, manage, invest and reinvest the Trust Assets, collect the income and (A) If the Settlor's husband, GEORGE F. DIXON, JR. (the "Settlor's Husband"), survives the Settlor, then beginning at the Settlor's death, and during the lifetime of the Settlor's Husband, the Trustee shall pay over to the Settlor`s Husband the net income of the Trust in quarterly installments and shall pay over to ar for the benefit of the group consisting of the Settlor's Husband and the Settlor's children such portions of the principal as, in the sole discretion of the corporate Trustee, may be necessary for their maintenance, suppar~t, education and medical and nursing, care, taking into consideration any other means readily available far such purposes. Upon the death of the Settlor's Husband, the Trustee shall distribute any accumulated income of the Trust to the estate of the Settlor`s Husband. -3- (B) Upon the death of the survivor of the Settlor. and the Settlor's Husband and until the tenth anniversary of the Settlor's death, if such anniversary shall not then yet have occurred, the Trustee shall pay over the net income in quarterly installments to the Settlor's issue living from time to time, per stirpes, and such portions of the principal as, in the sole discretion of the corgorate Trustee, may be necessary i for the maintenance, support, education and medical and nursing care of the then income beneficiaries, taking into consideration any other means readily available for such purposes. (C) After the last to occur of {1) the death of the survivor of the Settlor and the Settlor's Husband or {2} the tenth anniversary of the Settlor's death, the Trustee shall distribute the principal and any undistributed income of the Trust to the Settlor's issue then living, per stirpesf provided, however, that shall any such issue not then have attained the age of twenty-one years, such issue's share shall be retained by the Trustee as a separate trust estate, IN TRUST NEVERTHELESS, to be held, administered and disposed of in accordance with ARTICLE IV far the benefit of such issue (the "Grandchild's Trust"). -4- ARTICLE IV The Grandchild's Trust The Trustee shall have, hold, manage, invest and reinvest the assets of the Grandchild's Trust, collect the income and (A) Until the beneficiary~of the Grandchild's Trust (the "Grandchild") shall have attained the age of twenty-one years, the Trustee shall from time to time pay to or £or the benefit of the Grandchild such amounts of the net income and principal of the Grandchild's Trust as~, in the sole discretion of the Trustee, may be necessary for the Grandchild's maintenance, support, medical and nursing care and education, including college and graduate education, taking into consideration any other means readily available for such purposes. At the end of each year any unexpended income shall be added to the principal of the Grandchild's Trust. (B) Aftez the Grandchild shall have attained the age of twenty-one years, the Trustee shall distribute the then remaining principal and any undistributed income of the Grandchild's Trust outxight to the Grandchild; or if the Grandchild shall have died before attaining that age, the Trustee shall distribute such assets to the Grandchild's estate. -5- ARTICLE V S ep ndthrift Provision No part of the income or principal of the property held under any trust created hereunder shall be subject to attachment, levy or seizure by any creditor, spouse, assignee or trustee or receiver in bankruptcy of any beneficiary prior to his or her actual receipt thereof. The Trustee shall pay over the net income and the principal to the parties herein designated, as their interests may appear, without regard to any attempted anticipation (except as specifically provided herein), pledging or assignment by any beneficiary under any trust created hereunder, and without regard to any claim thereto or attempted levy, attachment, seizure or other process against said beneficiary. ARTICLE VI Trustee Powers During the continuance of any trust created hereunder, the Trustee shall possess, among others, the following powers to be exercised for the best interests of the beneficiaries: (A) To retain any investments so long as the Trustee may deem it advisable so to do. (B) To vary investments, when deemed desirable by the Trustee, and to invest in such bonds, stocks, notes, real estate mortgages ox other securities or in such othex real or personal property as the Trustee shall deem wise, without being restricted to so called "legal investments." -5- (C) To exercise any outstanding stock option in effect at the Settlor's death, and to borrow any necessary funds from any person or institution, including the Trustee, to mortgage or pledge any or all real or personal property as the Trustee in its sole discretion shall choose without regard for the dispositive provisions of this instrument. (D) In order to effect a division of the principal of any trust or for any other purpose,' including the final distribution of any trust, the Trustee is authorized to make said division or distribution of the personalty and realty partly or wholly in kind. If such division or distribution is made in kind, said assets shall be divided or distributed at their respective values on the date or dates of their division or distribution. In making any division or distribution in kind, the Trustee shall divide and distribute said assets in a manner which will fairly allocate any unrealized appreciation among the beneficiaries. (E) To sell either at public or private sale and upon such terms and conditions as the Trustee may deem advantageous to any trust, any or all real or personal estate or interest therein owned by any trust severally or in conjunction with other persons or acquired by the Trustee (including selling "short" any right, privilege, option or asset), and to consummate said sale or sales by sufficient deeds or other instruments to the puxchasex or purchasers, conveying a fee simple title, free and clear of all trust and without obligation or liability of the purchaser or purchasers to see to the application of the purchase money or to make inquiry into the validity of said sale or sales; also, to make, execute, acknowledge and deliver any and all deeds, assignments, options or other writings which may be necessary or desirable in carrying out any of the powers conferred upon the Trustee in this paragraph or elsewhere in this instrument. (F) To make leases of real estate. (G} To borrow money from any party, including the Trustee, to pay an indebtedness of .the Settlor or of. the Settlor's estate or trust, expenses of administration, all estate, inheritance and similar taxes ("Death Taxes") and other taxes. -7- (H) To pay, in the Trustee's discretion, without reimbursement, all costs, Death Taxes or other taxes, expenses and charges in connection with the administration of the Settlor's estate or trust, and to pay the funeral expenses .and the expenses of the last illness of the Settlor. (I) To vote any shares of stock which form a part of any trust and to otherwise exercise all the powers incident to the ownership of such stack. (J) In the discretion of the Trustee, to unite with other owners of similar property in carrying out any plans for the reorganization of any corporation or company whose securities form a Bart of any trust. (K) To assign to and hold in any trust. an undivided portion of any asset. (L) To select, employ and compensate any person, firm or corporation engaged in rendering investment counsel advice to advise the Trustee in making investments, managing securities or making decisions concerning the purchase, retention, sale or other disposition of any part of any trust estate hereunder; and to select, employ and compensate any attorney or firm of attorneys to render legal services to the Trustee with respect to any trust estate hereunder. ARTICLE VIT Survival Presumptions Any person who shall have died at the same time as the 5ettlor or under such circumstances that it is difficult or impossible to determine who shall have died first, shall be deemed to have predeceased her. Any person other than the Settlor who shall have died at the same time as any then beneficiary of income of a trust created hereunder or under such circumstances that it is difficult or impossible to determine who _g_ _..... shall have died first, shall be deemed to have predeceased such beneficiary. ARTICLE VIII Trustee's Duties With Respect to Policies The Trustee shall not be obligated to pay any premiums or assessments on any of the Policies and shall be under no obligation with respect to the Policies, except for safekeeping during the Settlor's lifetime and to the extent otherwise expressly agreed to herein. ARTICLE IX Settlor's Reserved Ri hts W~.th Respect to Po icies With xespect to any of the Policies. the Settlor reserves to herself, during her ownership of said Policies and during her lifetime, all rights, payments, dividends, surrender values and benefits of any kind which may accrue on account of any of the Policies, and the right at any time to assign, pledge or use said Policies, or any .of them, or to change the beneficiary thereof, to borrow money thereon, or for any purpose, without the consent, approval or joinder of the Trustee or any beneficiary hereundez. It is the intent of the Settlor, caith regard to said Policies, that this instrument shall be operative only with respect to the proceeds of such of the Policies as may be due and payable to the'Trustee at the time of the death of the -9- .. Settlor or thereafter, after deduction of all charges against the Policies by xeason of advances, loans, premiums, or otherwise; and the receipt of the Trustee for such proceeds shall release the insurance companies from liability on the Policies. ARTICLE X Collection of Policy Proceeds The Settlor agrees and directs that, upon hex death, , the proceeds of all Policies which are then subject to the terms of this instrument shall be paid in accordance with the directions then set forth in said Policies or the beneficiary designations then attached thereto. In the event the proceeds of said Policies are payable to the Trustee, the Trustee may institute any proceeding at law or in equity in order to enforce the payment thereof, and may do and perform any and all other acts and things which may be necessary, for the purpose of collecting any sums which may be due and payable under the terms of said Policies; it being distinctly understood, however, that the Trustee shall not, except at its option, enter into or maintain any litigation to enforce the payment of said Policies until it shall have been guaranteed indemnification by one or more of the beneficiaries of this instrument to~its satisfaction against all expenses and liabilities to which it may, in its judgment, be subjected by any such action. The Trustee is authorized to compromise and adjust claims arising out of the Policies, ox any of them, ugon such terms and conditions as it -1Q- may deem just, and the decision of the Trustee shall be binding and conclusive upon all persons and corporations interested therein. ARTICLE XT Guardian If at any time any minor shall be entitled to receive any assets hereunder, the Trustee shall act as Guardian of the assets payable to such minor. The Guardian may receive and administer all assets authorized by taw and shall have full authority to use such assets, both principal and income, in any manner the Guaxdian shall deem advisable for the best interests of the minor, including college, university, graduate or other education, without securing a court order. The Guardian shall have all the rights and privileges in its capacity as Guaxdian as are herein granted to the Trustee as to the trusts created hereunder. ARTICLE XII Powex to Mere Trusts If the Settlor's Husband shall establish, either by his last Will and Testament or by inter vivos Deed or Agreement, trusts similar to the trusts herein established for the benefit of the Settlor's issue, the Trustee herein shall have the right and power to merge trusts herein established with similar trusts -11- for the same beneficiaries established by the Settlor's xusband and to operate each of the merged trusts as a single trust. ARTICLE XIII Suxety and Compensation of Trustee The Trustee shall serve without the duty or obligation of filing any bond or other security and shall be entitled to compensation far services in accordance with the standard schedule of fees in effect when the services are rendered. ARTICLE XIV Revocability The Settlor may, by instrument in writing delivered to the Trustee, modify, alter or revoke this instrument in whale or in part; provided, however, that the duties, powers, compensation and liability of the Trustee shall not be changed without the written consent of the Trustee. ARTICLE XV Co-Trustee s Upon the death of the Settlor, the Settlor's sons, GEORGE F. DIXON, III, and RICHARD E. DIXON, shall serve with the corporate Trustee as Co-Trustees of each trust hereunder.. If either of them should fail or cease to serve as Co-Trustee hereunder, the survivor of them (or the corporate Trustee, in the -12- event that both should fail or cease to serve) shall continue to serve with all of the powers granted to the Trustee hereunder. ARTICLE XVI Situs This instrument and any trust created hereunder shall be governed by the laws of Pennsylvania and shall have its situs in Cumberland County, Pennsylvania. IN WITNESS. WHEREOF, LOTTIE IVY DIXON, as Settlor, has hereunto affixed her hand and seal, and DAUPHIN DEPOSIT BANK AND TRUST COMPANY, as Trustee, has caused this Revocable Agreement of Trust to be signed by its (Vice} President and to have its seal affixed to and to be attested to by its (Assistant) Secretary, all on the date and year first above written. WITNESS: SETTLOR: cc 1 ., G+~t,C~„= /~~fz~ M.,t~s. ~ :~G~~~~~J? ( SEAL ) c.~ Lo! tie Ivy on ATTEST: (SEAL} TRUSTEE: DAUPHIN DEPOSIT BANK AND TRUST COMP~A~N7Y ~s'rrJ (Vice) President -13- ..._ __.. - - - - ~ .~ .~..,. ~a The Lottie Ivy Dixon Revocable Trust SCHEDULE A WITNESS: SETTLOR: --~~// ' C~!~a~!~~~2 ~-`'~..~7 ( SEAL) r ...., """`~"~- Lottie Ivy xan ATTEST: TRUSTEE: DAUPHIN DEPOSIT BANK AND TRUST COMPANY r .EL By : L..G' `r. ~s'~c.~~~'' (~.~;t) Selc~t tary SrT: {vice) Presl,deht { s~:L ) STATE OF ~~.-~ ~ ~Lt.~t-xt,s.~ ~ SS: COUNTY OF ~ ,r ~-.s-x~ ~ On this, the ~ day of rt--~ 1985, before me, a notary public, the undersigned fficer, personally appeared LOTTIE IVY DIXON, known to me (vr satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the .same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. l: c.~ o=~ N ary Public Commission Expires: (SEAL) Y40NNE R. FREE1 Harrisburg, Dauphin County MY Commission Expires dune ~ 9. ~ 9ts6 ..._ :. - zy ~ ~; OF PENNSYLVANIA } ~ SSs COMMONWEALTH ~ COUNTY Off` ~~ ~~:r day o f On thisr the a eared officer, perSOnally PP the under s igned, ~~,Q„}.f. to be bef a mer ed himself ~~ ~`,~jr Who acknowledg R AN1U TRUST pss!stant yIce President and'T~ust pff3ca of DAUPAIN DEPOSIT BAN as such officex, the and that hef-~e a banking corporation, COMPANY, executed the foregoing instrument far being authorized to dO so' e of the ning the sam Contained by sig thexein the purposes Such aff~-cex. corporation by himself/herself as I hereunto set my hand and official IN WITNESS WHEREOF seal• i -- ~, public Nota~ My Commission Expires MARY ANPI AD!DE!:"4N. MUTARY PUDIiC c~Epj,) My CamtsNss:on Expires Uclnher 30.1986 Harrisburg, PA Dauphin County