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HomeMy WebLinkAbout03-08-11~ ~ } In re the Edith S. Rife Trust : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. ~ ~ _ p3~jr ~ o - t c~acP ~3 . D7~3 PETITION FOR RULE TO SHOW CAUSE AND NOW COMES Petitioner, John W. Maxwell, a remainder beneficiary of the Edith S. Rife Revocable Trust, by and through his attorney, James D. Cameron, and respectfully represents as follows: 1. On July 31, 1970, Edith S. Rife, as Settlor, entered into a Revocable Trust agreement ("the Trust Agreement") with her son, Charles J. Rife, as Trustee. A true and correct copy of the Trust Agreement is attached hereto, made a part hereof, and identified as "Exhibit A". 2. Pazagraph 3(a) of the Trust Agreement provides that Settlor was the sole beneficiary of the Trust during her lifetime. 3. Settlor died December 3, 1983. An original of her death certificate is filed of record with the Register of Wills of Cumberland County, Pennsylvania, in the matter docketed as number 83-773. 4. Settlor had two children, Charles J. Rife (the initial Trustee) and Catharine R. Maxwell (Petitioner's grandmother). Catharine R. Maxwell is one and the same person as Catherine R. Maxwell. Settlor was Petitioner's great-grandmother. ~__, 5. Paragraph 2 of the Trust provides that, upon Settlor's death ... CharyO Rife ~o -~-, m-D ~ ?~~ "shall be replaced as Trustee hereunder by Dauphin Deposit Trust Company wi~'~ary ~ ?= ~~~; `~ ~ ' __, ~ ,' ~..- ~~~ offices in Harrisburg, Pennsylvania." ~c~o -z, -. ~ , n ~ _, $ .-. ~" ~ ~_, 6. Manufacturer's and Trader's Trust Company ("M&T Trust Company") is the legal successor to Dauphin Deposit Trust Company. Dauphin Deposit Trust Company and M&T Trust Company are collectively referred to below as "the Successor Trustee" and as "the Bank". 7. Paragraph 2 of the Trust Agreement makes clear the intention of Settlor to have a corporate trustee replace her son, the individual trustee, at the time of her death. 8. Upon the death of Settlor, Charles J. Rife did not tender the trust assets to the Successor Trustee. Instead, contrary to the terms of the Trust Agreement, he failed to notify Dauphin Deposit Trust Company ("the Bank") of Settlor's death, and he failed to transfer the Trust assets to the Successor Trustee, the Bank. 9. Paragraph 3(b)(1) of the Trust Agreement provides that, upon the death of Settlor, the corporate, Successor Trustee was to "divide the trust estate into two, equal, separate trusts, one of which sepazate trust shall be held for the lifetime benefit of the Settlor's daughter and the other of which separate trusts shall be held for the lifetime benefit of the Settlor's son." 10. Instead, Chazles J. Rife continued to act as Trustee, placing himself in a position of conflict of interest, with an inherent risk of self-dealing, in conflict with terms of the Trust Agreement, as cleazly expressed in Pazagraph 2 regazding the corporate trustee. 11. Catharine R. Maxwell died January 29, 1997, in Huntington, Indiana. 2 J 12. In default of the respective exercises of powers of appointment by Settlor's children, the Trust Agreement provides specifically for the Trust to continue for the benefit of succeeding generations of family members, including Petitioner. 13. Catharine R. Maxwell did not exercise the special power of appointment granted to her in Pazagraph 3(b)(3) of the Trust Agreement pertaining to her separate trust share. A true and correct copy of her Last Will and Testament and Codicil thereto is attached hereto, made a part hereof, and identified as "Exhibit B". Exhibit B was admitted to probate by the Wells County Circuit Court, in the matter docketed as Estate Docket 90001-9702-ES-21. 14. Upon the death of Catharine R. Maxwell, her son, Bruce I. Maxwell became the new lifetime beneficiary of her sepazate trust shaze, pursuant to Paragraph 3(b)(4) of the Trust Agreement. 15. Subsequently, Bruce I. Maxwell, a resident of Indiana, directed the transfer of the assets of the separate trust for Catharine R. Maxwell to MazkleBank, a corporate fiduciary located in the state of Indiana, as permitted by Paragraph 2 of the Trust Agreement. 16. This shaze was administered by MazkleBank for the benefit of Bruce I. Maxwell during his lifetime, pursuant to Pazagraph 3(b)(3) of the Trust Agreement. 17. Bruce I. Maxwell died October 31, 2004. 18. Pazagraph 3(b)(4) provides that, upon the death of Bruce I. Maxwell, the one- half trust share of Catharine R. Maxwell "shall be divided into as many separate and equal trusts as there are grandchildren of the Settlor's daughter living", with the trusts to be 3 distributed outright to the beneficiaries at the time each beneficiary attains the age of thirty (30) years. 19. Catharine R. Maxwell had two children, Bruce I. Maxwell and Hugh Maxwell. These two sons produced five grandchildren of Catharine R. Maxwell: John W. Maxwell (Petitioner), Steven Maxwell, Douglas Maxwell, Barry Maxwell, and Sherri Maxwell. 20. All of the grandchildren of Catharine R. Maxwell were living at the time of the death of Bruce I. Maxwell. (Catharine's other son, Hugh Maxwell, was never a beneficiary under the terms of the Trust, but his children aze beneficiaries.) 21. Following the death of Bruce I. Maxwell, outright distribution of the sepazate trust share for Catharine R. Maxwell was made to the above-stated grandchildren by MazkleBank, as successor trustee of the Catharine R. Maxwell sepazate trust shaze. 22. As to the other share of the original trust, Chazles J. Rife continued to act as Trustee, in contravention of the Trust Agreement, until the time of his death. 23. During the period of time from the death of his mother (Settlor) on December 3, 1983, and the time of his own death on September 25, 2010, Charles J. Rife improperly held the assets of the other one-half trust share. 24. Charles J. Rife died September 25, 2010, leaving no issue surviving. 25. Charles J. Rife died testate. A copy of his Last Will and Testament is attached hereto, made a part hereof, and identified as "Exhibit C". 26. Exhibit B was admitted to probate by the Register of Wills of Cumberland County, Pennsylvania, and Letters Testamentary were granted to Fred H. Junkins, in the matter docketed as number 2010-01006. 4 27. Exhibit B does not exercise the special power of appointment granted to Chazles J. Rife in Paragraph 3(b)(3) of the Trust Agreement. Although the residual clause of Exhibit B contains the phrase "including any property over which I may have a power of appointment", this clause is not an effective exercise of the power of appointment given by Edith S. Rife. First, it contains no specific reference to the power, as required by Pazagraph 3(b)(3). See Schede Estate, 426 Pa. 93, 231 A.2d. 135 (1967) (special power not validly exercised by phrase similar to phrase in Rife Will). Second, the phrase in the residual clause could only exercise a "general power", while the provision in Paragraph 3(b)(3) is a "special power" that cannot be made payable to "himself, to his or her estate, to his or her creditors, or to the creditors of his or her estate". An exercise under the residual clause of Exhibit B would be general, treating the appointed property as part of the residue of Chazles Rife's Estate. 28. Because the power was not effectively exercised in accordance with the terms of the grant of the power, contained in Pazagraph 3(b)(3) of the Trust Agreement, further provisions of the Trust Agreement provide for the distribution of these funds, given that Charles J. Rife is now deceased. 29. Paragraph 3(b)(5)(C) provides "[I]f the Settlor's son is not survived by issue of himself and if the Settlor's daughter has predeceased the Settlor's son and if the special power of appointment by will permitted the Settlor's daughter ...was not effectively exercised by the Settlor's daughter ...the trust estate of the Settlor's son's sepazate trust shall be held, administered and distributed by the Trustee in the same manner as provided for the Settlor's daughter's [Catharine R. Maxwell's] separate trust in Paragraph 3(b)(4)" of the Trust Agreement. 30. Under Pazagraph 3(b)(4), the share of the trust assets held for the benefit of Charles J. Rife aze to be distributed to the grandchildren of Catharine R. Maxwell. 31. The grandchildren of Catharine R. Maxwell aze now entitled to distributive shares of the one-half share of the Trust originally set aside for Charles J. Rife. 32. Had not Charles J. Rife wrongfully retained the trust assets at the time of his mother's death, then M&T Trust Company would be serving, presently, as Successor Trustee of this one-half share. 33. However, because of the actions or inaction of Chazles J. Rife, the office of Successor Trustee is vacant. 34. There being a vacancy in the office of Successor Trustee, John W. Maxwell requests the Court to appoint him to this office. His original Consent is attached hereto, made a part hereof, and identified as "Exhibit D". 35. M&T Trust Company has offered to decline to serve as Successor Trustee in favor of John W. Maxwell. The Consent of M&T Trust Company is attached hereto, made apart hereof, and identified as "Exhibit E". WHEREFORE, Petitioner respectfully requests this Honorable Court to issue a Rule, directed to Fred H. Junkins, Executor of the Estate of Charles J. Rife; Steven 6 Maxwell, Douglas Maxwell, Barry Maxwell, and Sherri Maxwell, to show what cause, if any, they may have that: (1) the Executor of the Estate of Chazles J. Rife should not be required to file an accounting of the administration of the Edith S. Rife Trust by Chazles J. Rife from the date of death of Edith S. Rife: (a) to date, as to the Charles J. Rife sepazate shaze, and (b) to the date of the transfer to MazkleBank, as to the Catharine R. Maxwell share; (2) the several beneficiaries of the Edith S. Rife Trust should not be required to file objections, if any, to the accounting(s) filed by the Executor pursuant to (1), above, within forty-five (45) days of service of the same; (3) John W. Maxwell should not be appointed as Successor Trustee of the Edith S. Rife Trust, without liability for any action or inaction taken or not taken by any predecessor trustee; (4) the Executor of the Estate of Charles J. Rife should not be directed to fully cooperate with John W. Maxwell in order to facilitate the immediate transfer of all assets remaining in the Edith S. Rife Trust to the Successor Trustee for further administration; (5) the Executor of the Estate of Charles J. Rife should not be directed to deliver to John W. Maxwell, within fifteen (15) days of his appointment as Successor Trustee, any and all records or other documents in any way related to the Edith S. Rife Trust that were within 7 the possession and control of Charles J. Rife at the time of his death; and (6) the Court should not grant such other relief as it may direct. Respectfully Submitted, Attolv~y I.D. No. 58998 1325 North Front Street Harrisburg, PA 17102 (717) 236-3755 Attorney for Petitioner, John W. Maxwell Y VERIFICATION The undersigned verifies that the averments in the foregoing Petition for Rule to Show Cause aze true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties relating to unsworn falsification to authorities at 18 Pa.C.S. Section 4904. ~W JOIjrl W. MAXWELL S , ' REVOCABLE TRUST. TRUST AGREEMENT made :.'~ f 1970, between ~ S Edith S. Rife, presently residing in Upper Allen Township, Cumberland County, Pennsylvania (hereinafter called the "Settlor"), AND, Charles J. Rife (hereinafter called the "Trustee" when referred to in his fiduciary capacity). 1. Trust Property - The Settlor does hereby transfer and :deliver to the Trustee the property listed in Schedule A annexed hereto, to have and to hold the same and any cash, securities, or other property which the Trustee may pursuant to the provisions hereof at any time hereafter hold or acquire, all of such property being hereinafter referred to collectively _- _,. _ as the "trust estate", for the uses and purposs"s and upon thy' °-^-° °--~ terms and conditions herein.aet forth. 2. Successor Trustee(s) - Upon the Settlor's death or upon his being unable or unwilling to serve ae.auch, whichever shall first occur, Charles J. Rife shall be replaced as Trustee hereunder by Dauphin Deposit Trust Company with primary offices in'Harriaburg, Pennsylvania. .During the time when any one of I Charles J. Rife (hereinafter called the "Settlor's son" when referred to in his individual capacity), Catherine R. Maxwell (hereinafter called the "Settlor's daughter") or Bruce i. Maxwell is the lifetime beneficiary of a separate trust provided for herein, any one of such persons shall have the right to direct that as to the separate trust for his benefit, Dauphin Deposit Trust Company be succeeded as trustee by a corporate fiduciary having its primary office in the state in which anyone of such persona maintains his or her permanent residence,.provided, how- ever, that such permanent residence is in a state other than Pennsylvania. Any successor trustee to Dauphin Deposit Trust Company, within the above stated limitations, shall be designated by Dauphin Deposit Trust Company, and if .Dauphin Deposit Trust Company should fail to so designate a successor, such shall be designated by the Orphans' Court Division of the Common Pleas Court of Cumberland County, Pennsylvania. 3. Diapositive Provisions - The Trustee shall hold, manage,. invest, and reinvest the trust estate, and shall collect the income thereof, and dispose of the net income and principal as follows: ~,,,..,,,.,.,, ,.,,~.__... ,_...~,~a~~.During.the lifetime of tY,lg„Settlor, the Trustee < ~...~...,.-m....~.... shall pay the entire net income from the trust estate in con- venient installments to the. Settlor or otherwise as she may from time to time direct in writing, and the Trustee shall also pay to her such part of all of the principal of the trust estate as she so requests in writing from time to time.. If at anv time or times the Settlor is under a legal disability, or by reason of illness or mental or physical disability,. the Settlor is in the opinion of the Trustee, or in the opinion of the 3ettlor's son, Charles J. Rife, if he is not the Trustee, unable properly to manage her affairs, the Trustee shall use the income and such part or all of the principal of the trust estate as is deemed necessary or advisable, in such manner as he deems beat, for the care, support, and comfort of the Settlor, or for any other - 2 - .. --- ®s~~ -_ -. .. _.. .. .. _._ -----~-- .. r~~~~~yyn~.r+.wv.error..u....~m+~uAa.w~ww.•~+nr~+o^ -~- .~.. . _. .__ ........... ..~.-~.~..n purposes the Trustee deems to be for the beat interests of the Settlor. (b) Upon the death of the Settlor, the Trustee shall thereafter apply, administer. and distribute the treat eaiate, including any property paid to the Treat as a result of the Settl or's death .from her probate estate, or any other property paid to the Trust as a result of the Settlor's death, as follows: (1) After the death of the Settlor the Trustee shall divide the trust estate into two, equal, aepaxate trusts, one of which:. separate treats shall be .held for the lifetime benefit of the settlor'a daughter and the other of which separate treats shall be held-.for the Tifetime benefit of she Settlor's son. Each separate trust shall be administered for the benefit of its lifetime beneficiary, as hereinafter provided. ,µ (2) The Trustee shall pay to the lifetime bane- ficiary, in monthly or other convenient installment;a, all of the net income from the separate trust for his ox her benefit during the beneficiary's lifetime. The Trustee, also, shall pay to or for the benefit of the lifetime beneficiary such portions of the principal of his or her separa a treat as may be necessary to maintain fox the lifetime beneficiary a manner of living approximately equal to that maintained by the. .lifetime bens€icary during the lifetime of the Settlor, and to meet. the lifetime beneficiary's medical, dental, hospital and nursing. expenses and expenses of invalidism.. in addition. the. lifetime beneficiary shall have the right during, he time he or she is a lifetime beneficiary to direct that amounts be paid from .the principal of his or her separate trust {a) to .meet - 3 - a . the expenses of preparatory, collegiate and professional educa- bona for any grandchild or great-grandchild of the Settlor, or (b) to afford any such grandchild or great-grandchild .such items, whether. of realty or personalty, as might be necessary in his conduct of a trade or business, provided, that no life- time beneficiary shall have the right to direct that any such payments ba paid so as to relieve any obligation of support of the lifetime beneficiary. (3) At the death of a lifetime beneficiary for whom a separate trust was established under Paragraph 3(b)(1), or at the Settlor's death if a person designated a lifetime .beneficiary under Paragraph 3(b)(1) has predeceased the Settlor, -the trust estate of the named but then deceased lifetime bene- ficiary's separate trust shall be disposed of by the Trustee in such manner as the named but then deceased life ime behefi- ciary thereof shall specifically have designated by reference hereto in his or her will accepted for probate by the court having jurisdiction of the named but then deceased lifetime .beneficiary's probate estate, except that neither lifetime bane- ficiary shall have the right under this Paragraph 3(b)(3) to designate or appoint the assets of the separate trust of which he or she was named the lifetime beneficiary. to himself, to his or her estate, to his or her creditors, or to the creditors of his or her estate, said power to designate and appoint being intended by the Settlor to amount only to a special power o£ appointment and not a general power of appointment under Section 2041 (b) of the Internal Revenue Code of 1954, as amended. s aaugnter unaer Paragraph 3Cb)(3) re- apecting the trust estate of her separate trust is not effec- tively exercised as provided in Paragraph 3(b)(3), her separate trust shall thereafter continue for the benefit of her son, ' Bruce I. Maxwell, who shall be paid the net income therefrom for hie life in monthly or other convenient installments and who shall be paid from the principal thereof during hia life- time such amounts as may be .necessary to meet his medical, dental, hospital and nursing expenses and expenses of invalidism. During the time Bruce i. Maxwell is a beneficiary of such separate trust, the Trustee shall pay from the principal thereof for the benefit of his children such amounts as may be necessary to (a) meet any such child's expenses of preparatory, collegiate and professional educations as long ae said expenses cannot reaponably be met by the said Bruce I. Maxwell, and (b) to afford any such child such items, whether of realty or peraonal,ty, as might be necessary in his conduct of a trade or business, provided, that no such payments shall be made which would re- lieve any obligation of Bruce I. Maxwell to support a child of his. Upon the death of .Bruce I. Maxwell, qr upon the death of the Settlor's daughter if she is not survived by Bruce I. Maxwell, or upon the death of the Settlor if she is survived by neither her daughter nor Bruce I. Maxwell, as the case may be, the trust estate o~ the separate trust formerly for the benefit of the Settlor's daughter and Bruce I. Maxwell shall be divided into as many separate and equal trusts as there are :grandchildren of the Settlor's daughter living at the time of the Settlor's death, the Settlor's daughter's death or Bruce I. Maxwell's death, whichever shall last occur, and grandchildren of the Settlor'a - 5 - s , are then living. One such equal trust shell thereafter be administered for each grandchild of the Settlor's daughter for whom a separate trust has been established under the preceding sentence and the separate trust for each deceased grandchild of the Settlor's daughter who has left issue then living shall then be distributed per stirpes to such issue. The-Trustee shall pay to each grandchild of the Settclor's daughter for whom,a separate trust has been established such portion of the net income or principal of his separate trust as shall from time to time be necessary to enable him to maintain a reasonably comfortable standard of living, to meet the .coats of hie col- legiate and professional educations,. to meet his expenses of an emergency nature such as those arising from serious illness, physical incapacity or the like, to afford him such items, .,.... whether of realty or personalty, as might be necessary in his conduct of a trade or business, and upom hi attaining thirty (30) years of age the Trustee shall distribute outright to him the entire remaining sum then held in separate trust for him. If any such grandchild of the Settlor's daughter dies before attaining thirty (30) years of age, the entire remaining sum then held in separate trust for him shall be paid to his estate. (5) If the special power of appointment by will .permitted the Settlor's son under Paragraph 3(b)(3} respecting the trust estate of his separate trust is not effectively exercised as provided in Paragraph 3(b)(3), the trust estate of his separate trust at his death shall be held, administered, or distributed by the Trustee as follows: _ 6 _ A) If the Settlor's son ie survived by issue of himself, the trust estate of the Settlor'e son's .separate treat shall be divided into as many separate and equal trusts as there are children of the Settlor's son who are then living and children of the Settlor's son who, having previously died, have left children who are then living. One such equal trust shall thereafter be administered for each child of the Settlor's aon for whom a separate treat has been established under the preceding sentence and the separate trust for each deceased child of the Settlor's son who has left issue then living shall be distributed per atirpea.to such issue. The Trustee shall pay to each child of the Settlor'e aon for whom a separate trust has been established, such portion of the net income or principal of his separate trust as may from time to time be necessary to enable him to maintain a reasonably _._._ _, comfortable standard of living, to meet the costa of his col- legiate and professional educations, to meet his expenses of an emergency nature such as those arising from serious illness, physical incapacity or the like, to afford him such items, whether of realty or personalty, as might be necessary in his conduct of a trade or business, and upon his attaining thirty (30) years of age, shall distribute outright to him the entire remaining sum-then held in separate treat for .him. If any such child of the Settlor's son dies before attaining .thirty (30) years of age, the entire remaining sum then .held in,sep- crate treat for him shall be paid to his estate. (B) If the Settlor's son is not aurviued by issue of himself and if the Settlor's daughter has-.predeceased - 7 - , will permitted the Settlor'a daughter under Paragraph 3(b)(3) respecting the trust estate of her separate trust was effec- tively exercised by the Settlor'a daughter as provided in Para- graph 3(b)(3), the trust estate of the Settlor's son's separate trust shall be held, administered and distributed by the Trustee in the same manner as provided by the 3ettlor's daughter by exercise of her power of appointment for disposition of the trust estate of her separate trust. {C) If the Settlor's son is not survived by issue of himself and if the Settlor's daughter has predeceased the Settlor's son and if the special power of appointment by will permitted the Settlor's daughter under Paragraph 3(b)(3) respecting the trust estate of her separate trust was not effec- tively exercised by the Settlor's daughter as provided in Para- graph 3(b)(3), the trust estate of the Settlor's son's separate trust shall be held, administered and distributed by the Trustee in the same manner as provided for the Settlor's daughter's separate trust in Paragraph 3(b)(4). (D) If the Settlor's son is not survived by issue of himself and if the Settlor's daughter survives the Settlor's eon, the trust estate of his separate trust shall be continued in trust for the benefit of the Settlor's daughter under the same terms and conditions for the Settlor's daughter as provided for the Settlor's son under Paragraph 3(b)(2), and shall thereafter be subject to the same terms and conditions as prcvided in Paragraphs 3(b)(3) and 3(b)(4). 4. Perpetuities - The foregoing provisions of this Trust or of any separate trust provided for hereunder, - 8 - trust provided for hereunder has not permanently vested in intear eat within twenty-one (21) years after the death of the last to die of the Settlor, the Settlor's daughter, the Settlor's son, and the Settlor's daughter's son, Hruce I: Maxwell, such portion(s) of this Trust or of any separate trust provided for hereunder shall then terminate and the same shall be distributed equally to the beneficiary(s) then entitled to the income thereof. 5. Trustee Powers - In addition to such other powers and duties as may have been granted elsewhere in this Agreement, or which may be granted by law, the Trustee hereunder shall have the following powers and duties: (a) To retain all or any part of the property of the Settlor, real or personal, in the form in which it may be at the time of its receipt, including any business owned or can- trolled by the Settlor, as long ae in the exercise of his dis- cretion it may be advisable so to do, notwithstanding that aald property may not be of a character authorized by law. (b) To invest and reinvest any funds in the Trust in any property, real or personal, including, but not by way of limitation, bonds, preferred stocks, common stocks, and other securities of domestic or foreign corporations or investments, even though such property, by reason of its character, amount, proportion to the total trust estate, or otherwise, would not be considered appropriate, or legal for a fiduciary apart from this provision. (cj To sell, convey, exchange, partition, give options. upon, or otherwise dispose of any property, real or personal, at any time held by him, at public or private .sale or otherwise, for cash or other consideration or on credit, and upon such - g - terms aid for such price a~ he may die-termne, .and to nonvey such property free of all trusts. (d) To borrow money for any purpose in connection with the administration of the Trust, to execute promissory notes or other obligations for amounts by mortgages-or,pledgea of any property, real or personal, which may be included in the Trust. (e) To make loans, secured or unsecured, in such. amounts,; upon such terms, at such rates of interest, and to such.peraona, firma or corporations as he may .deem advisable. (f) To renew or .extend the time for payment of any obligation, secured or unsecured, payable to or by the Trust, for as long a period or periods of time and on such,-terms as he may determine, and to adjust, settle and arbitrate claims. or demands in favor of or against the Trust. (g) In distributing any property, real or personal, included herein, to distribute in cash, in kind, or partly in cash-and partly in kind as he may determine, and to allot . specific securities or other property or an undivided interest therein to any share or part. (h) To hold, manage, and develop any real estate which may be held by him at any time, to mortgage any such property in such amounts and on such terms as he may deem advisable, to lease any such property for such term or terms, and upon .such conditions and rentals as he may deem advisable, irrespective of whether the term of any such lease shall exceed the period permitted by law or the probable period of retention under this instrument; to make repairs, replacements and improvements, .structural or otherwise, in connection with any such property, - 10 - f' 1 { ~ ~ 1 ~ 11 1 m.i ~.... .... ....~.. .. Yan _ : ... .. 4 `I to abandon any such property which he may deem to be worthless V i or not of sufficient value to warrant keeping or protecting, I and to permit any such property to be lost by tax sale or any other proceeding. (i) To employ such brokers, banks, custodians, invest- ment counsel, attorneys, and other agents, and to delegate to h them such duties, rights and powers as he may determine, and ~ for such periods as he thinks fit. i (j) To register any such securities at any time in his own name, in his name as fiduciary, or in the name of a nominee, with or without indicating the trust character of ~ I the securities so registered. ~' ) (k) With respect to any securities forming part of the iI Trust, to vote upon any proposition or election at any meeting .I ,I f of the corporation issuing such securities, and to grant proxies, f discretionary or otherwise, to vote a.t any such meeting; to join or become a party to any reorganization, readjustment, merger, I j voting trust, consolidation or exchange, and to deposit any such securities with any committee, depository, trustee or otherwise i and to pay out of the Trust created herein, any fees, expenses, and assessments incurred in connection therewith; to exercise conversion, subscription or other rights and to receive or hold ~ any new securities issued as a result of any such reorganization, 11I 1 readjustment, merger, voting trust, consolidation, subscription or other rights and generally to take all action with respect to 1 any such securities as could be taken by the absolute owner thereof. b. Additional property - The Settlor, or any issue of i l the Settlor, or any one married to an issue of the Settlor, may j at any time, or from time to time, hereafter, transfer and deliver ~ - 11 - '-- -- J I ' , r r. ... ,.x. ...., n j to the Trustee, whether during his or her lifetime or by way of I j his or her will, cash, securities, and other property acceptable f~ to the Trustee, in addition to the property presently transferred zl and delivered, and such cash, securities, and other property shall be held, administered, and disposed of by the Trustee in accordance with the provisions of this Agreement without the execution of any further instrument or declaration. 7. Accounting By Trustee - At any time and from time to time after the death of the Settlor, the lifetime beneficiary of any separate trust created hereunder may, by a written in- i ,; '' strument signed and acknowledged by him or her, and delivered to the Trustee, settle the account of the Trustee with respect i ,'~ to principal or to income, or with respect to both principal and income, and release and discharge the Trustee. 8. Taxes and Other Exvenses - At the death of the Settlor, the trust estate hereunder, prior to the division into separate trusts provided for in Paragraph 3(b)(1), shall be charged with the payment of any federal estate taxes, inheritance taxes, or taxes otherwise arising because of the Settlor's death, with the expenses of the last illness, funeral and burial of the Settlor, with the expenses of administering the Settlor's probate estate, this Trust and the assets of the Settlor other than in her probate estate, and with the payment of any obligations of the Settlor existing at the time of her death. It is the intention of the Settlor that her probate estate and the beneficiaries thereof, other than this Trust, be entirely relieved of the necessity of paying any such taxes or expenses, and that her general estate and ~ the beneficiaries thereof, other than this Trust, shall be under no duty to reimburse the trust estate fox such payments. ....._ .,.~ ,~.~ ...,.~... ~.~.=v~...::~ M .3 ~~w.~ ., _ , 9. Spendthrift - No interest of any beneficiary of this Trust shall be subject to anticipation or to pledge, assignment, sale or transfer in any manner, nor shall any beneficiary have power in any manner to charge or encumber his interest, nor shall the interest of any beneficiary be liable or subject in any manner while in the possession of the fiduciary (s) hereunder for any liability of such beneficiary, whether such liability arises from his debts, contracts, torts or other engagements of any type. 10. Incompetents - Any amounts which are payable hereunder to a minor, or to a person otherwise under legal disability, or to a person not adjudicated incompetent, but who, by reason of illness or mental or physical disability is, in the opinion of the Trustee, unable properly to administer such amounts, may be paid by the Trustee in its sole discretion in such of the following ways as it deems beat: (a) directly to such a beneficiary; (b) to a legally appointed guardian of such a beneficiary for the benefit of such beneficiary; (c) to a person having custody of such a beneficiary for the benefit of such beneficiary; (d) by the Trustee hereunder using such amounts directly for the benefit of such a beneficiary. Evidence of the application or payment of an amount in such a man- ger shall be a full and complete discharge of the Trustee hereunder to the extent of such payment or application. This Paragraph shall be applicable to payments of income as well as principal. 11. Common Fund - For convenience of administration and investment, the Trustee is authorized to hold the several separate trusts created hereunder as a common fund, dividing the income between them, to assign undivided interest to the separate trusts, and to make joint investments of the funds belonging to them. For - 13 - i such purposes and insofar as may be practicable, the Trustee may consolidate any separate trust created hereunder with any other separate trust created hereunder and may hold, administer and invest the separate trusts as one or more common fund or funds and make joint or several distributions of income and principal thereof, whichever the Trustee deems advisable. 12. Se arate Part or Trust - In the event that any assets hereunder are to be allocated to a separate part or trust here- under or under provision made by exercise of a separate power of appointment created hereunder and if such assets will immediately distribute upon the creation of the separate part or trust, such assets may be distributed by the Trustee in exactly the same 'I manner as provided for in the involved separate part or trust. fi 13. Interpretation - The masculine gender shall be deemed `~ to include the feminine gender herein where the context so re- ~, quires, and the singular shall be deemed to include the plural where the context so requires. 14. Governing Law - This Trust shall be administered and interpreted in accordance with the laws of the Co~monwealth of Pennsylvania. 15. Miscellaneous - The Trustee hereunder shall serve as guardian of the property of any minor beneficiaries hereunder. ~ The Trustee shall not be required to furnish bond or other security for the proper performance of his duties and the Trustee shall not be prevented from acting by reason or any rule of law I relating to conflicts of interest which might otherwise be I applicable. 16. Amendment and Revocation - The Settlor reserves the ~ - 14 - _- -_~_ - right at any time or from time to time, without the consent of any person and without notice to any person other than the Trustee, to revoke or modify the Trust hereby created, in whole, or in part, to change the beneficiaries hereof, or to withdraw the whole or any part of the trust estate by filing. notice of such revocation, modification, change, or withdrawal with the .Trustee, provided, however, that the terms of this Agreement may not be modifi®d by the Settlor in any .manner as to increase the obligations or alter the rates or the commissions of the Trustee without its written consent. IN WITNESS WHEREOF, the Settlor and Trustee have hereunto $et their hands and seals this .~~p'f` day of ~+.v~y C, S, 1970. ~ d ..WITNESS : i VJ SETTLOR: ~~~cs~ EnITx S. RI TRUSTEE: _„~~;,:~_ (SEAL) CHARL]58 R E - 15 - '... a -'' ~ - ~--~-~ CATFIARINE R . MAXWELL ) ( ` _ -„ ~ _ ,,, ~. :} ~•` •c' _ ,,, I, CATHARINE R. MAXWELL, hereby revoke any c8~t@~ `-~~~5 W~'BCOUR7 (and codicils) made by me prior to this Will, and declare this to be my last Will. ARTICLE ONE DECLARATIONS The following declarations shall be considered in interpret- ing this Will and in settling my affairs following my death: (a). I am an unremarried widow residing and domiciled in Huntington County, Indiana, at 1124N 350 East, Huntington, Indiana. (b). My husband was ROLLAND E. MAXWELL and I am the mother of two (2) children, BRUCE ~•. MAXWELL and HUGH MAXWELL. I have no other natural or adopted child. I have no descendant of any deceased child. (c). Any reference in this Will to "child", "chil- dren", "descendant" or "descendants" shall be construed to include both natural born and adopted persons (except for adopted persons who were twentyrone (21) years of age or older at the time of adoption), whether born or adopted before or after I sign this Will. (d). At present, no child or other descendant of mine is indebted to me. (e). I have not made any gift to or for the benefit of any child .or other descendant of mine which I want treated as an advancement to be deducted from the portion of my probate estate to which he or she may be entitled under the provisions of this Will. C- at~ine R. Maxwell ARTICLE FOUR SPECIFIC DEVISE OF REAL ESTATE I give, devise and bequeath any interest which I may the time of my death in real estate in Huntington County, Indiana, to my son, BRUCE, if he survives me. If he does survive me, I give, devise and bequeath any such interes Huntington County real estate in shares of equal value t my grandchildren who survives me and to the descendants, ively, by right of representation, of each grandchild of any, who does not survive me. ARTICLE FIVE SPECIFIC BEQUESTS I give, devise and bequeath: own at not t in o each of collect- mine, if (a). To DAUPHIN DEPOSIT TRUST COMPANY (or the succes- sor to its trust business}, as Trustee, all shares of stock owned by me at the time of my death to be admin- istered and distributed by it in accordance with the terms and provisions of the trust created by my mother, EDITH S. RIFE, by her Revocable Trust Agreement dated July 31, 1970. (b). To MYRA J. BOOTS, if she survives me, my antique 2-door, 12-pane corner cupboard, if owned by me at the time of my death. (c). To GUILIA MAXWELL, if she survives me, and is married to my son, HUGH, at the time of my death or was married to him at the time of his death if he prede- ceases me, my oval gate-leg table which belonged to the aunts of my husband's father, my mahogany chair with the rose colored upholstery and my spool bed which belonged to my husband's grandmother Maxwell, if those items are owned by me at the time of my death. Howev- er, if this bequest to my son's wife shall lapse for any reason, then I give those items to the descendants of my son, HUGH, by right of representation, to be divided among them as they shall agree. (d). To my son, BRUCE, if he survives me, my Regina music box and my Daniel Rose antique grandfather clock, if those items are owned by me at the time of my death. Cathar ne R. Maxwell ARTICLE EIGHT RESIDIIARY ESTATE I give, devise and bequeath all of my residuary estate, being all of my property, wherever situated, not otherwise effectively disposed of, as follows: (a). One-half (1/2) in value thereof to the descen- dants of my son, HUGH, by right of representation. (b). The balance thereof to my son, BRUCE, if he survives me, otherwise in shares of equal value to each of my grandchildren who survives me and to the descen- dants, collectively, by right of representation, of each grandchild of mine, if any, who does not survive me. (It is my specific intent to include all of my grandchildren in this provision as opposed to limiting it to the children of my son, BRUCE.} ARTICLE NINE PROVISIONAL DISPOSITION If all of my descendants predecease me, I give, devise and bequeath all of my residuary estate to those persons who would have been entitled to receive my personal property under the laws in effect at the time of my death in the state of my domicile at the time of my death, had I died intestate, and in the shares determined under those laws. ARTICLE TEN ORDER OF DEATHS Any person who dies within thirty (30) days after my death, for the purposes of Articles Fine and Six, or within five (5) months after my death, for all other purposes of this Will, shall be deemed to have predeceased me. It is not my intent hereby to alter the application, if otherwise applicable, of the Uniform Simultaneous Death Act (IC 29-2-14). Catharine R. Maxwe ~ UNDER THE PENALTIES FOR PERJURY, we, the undersigned Testa- trix and the undersigned witnesses, respectively, declare: (1) that the Testatrix signified to the witnesses that this instrument (consisting of eight (8) typewritten and bound- together pages, including this page, the first seven (7) pages of which bear the signature of the Testatrix) is her Will; (2) that, in the presence of both witnesses, the Testatrix signed this instrument; (3) that the Testatrix executed this instrument as her free and voluntary act for the purposes expressed in it; (4) that each of the witnesses, in the presence of the Testatrix and of each other, signed this instrument as a witness; (5) that the Testatrix is of sound mind; and (6) that, to the best of our knowledge, the Testatrix is eighteen (18) or more years of age. a Catharine R. Maxwell November 5 , 1991 ~~~' y.~ (~tG ~, ~~ i~,~~~ 6W, tness '\, - ~ `~~ .x.12-~ Witne s ~oCro/ 97a~ ,C=S `v~/ CODICIL TO TBS ax~.~ ~xxr.~ C~.e ~~ C~THARINB R. MAZ1[ELL ~~. "< r r• y~r~ .may CLERK Y11tLLS ClRCUtT COURt I, CATSARINB R. ]L7lYRSLL, of Huntington (Huntington County), Indiana, do hereby make, publish, and declare this to be a Codicil to my Last Will and Testament dated November 5, 1991. I do hereby revoke in its entirety ARTICLE FIVE of my Last Will and Testament and substitute therefor the following: I give, devise, and bequeath: (a). To my son, BRIICS, if he survives me, or, if he does not survive me, in shares of equal value to each grandchild of mine who survives me, all shares of stock owned by me at the time of my death. (b). I forgive and cancel any and all debts owed to me at the time of my death by my son, B3LIIC8, and my gran3aors, STEPSN A. MAE~ZL and JOffiQ A. MA]CIfSLL, resulting from the final decree in my deceased husband's estate. (c). To my 'son, BRIICB, if he survives me, my Regina music box and my Daniel Rose antique grandfather clock, if those items are owned by me at the time of my death. (d). To my son, HUdH, if he survives me, the spool bed which belonged to my deceased husband's .grandmother Maxwell and all of my deceased .husband's books which are owned by me .at the time of my death. [/ ' ~ Cathay ne R. l[aiNeii UNDER THE PENALTIES FOR PERJURY, we, the undersigned Testatrix and the undersigned witnesses, respectively, declare: (a). The Testatrix signified to the witnesses that this instrument (consisting of three (3) typewritten and bound-together pages, including this page, the first two (2) pages of which bear the signature of the Testatrix) is a Codicil to her Last Will and Testament -dated November 5, 1991. (b). In the presence of both witnesses, the Testatrix signed this instrument. (c). The Testatrix signed this instrument as her free and voluntary act for the purposes expressed in it. (d). Each of the witnesses, in the presence of the Testatrix and of each other, signed this instrument as a witness. ' (e). The Testatrix is of sound mind. (f). To the best of our knowledge, the Testatrix is eighteen (18) or more years of age. Cathay • R. ell .T u ~y 1 ~ ~ ~3 4 `f ~•c~2.4~n-~.6~.J Date LAST WILL AND TESTAilAFENT BE IT REMEMBERED THAT I, CHARLES J. RIFE,.. a resident of Cumberland County, Pennsylvania, being of sound mind, -memory and understanding, do make, publish and declare this to be my LAST WILL AND TESTAMENT, hereby revoking any and all Wills and Codicils previously made by me, as .well as-The Charka J. Rife Living Trust which I signed May 21, 2007 and all modifications or changes which were made to that Trust. I I direct that all my just debts and funeral expenses shall be paid from my residuary estate as soon as practicable after my decease. II I direct that all taxes that may be assessed in consequence of my loath, of whatever nature and by whatever jurisdiction imposed, shall be paid from. my residuary estate as a part of the expense of the administration of my estate. III I give and bequeath items of personal. property to specific individuals that I have set forth in a list which I have prepared, signed and maintain with this Will. IV I give, devise anc{ bequeath all the rest, residue and remainder of my property, whether real of personal, wherever situate, including any property over which Lmay have a pow~r of appointment, as follows: A. THIRTY-FIV>r PERCENT (35%) to charitable and non-profit organizations as hereinal`ter set forth: Reformed M~nnonite Church, Middlesex Township 2% (This is the ~hun:h attended by Glen Gross. If there is any question about the exact identit~ of this church, then my Executor shall have frill authority to determine what entity receives this bequest.) Holy Spirit I-)ospital 6°~ PennsylvQnia H©spital (8~ 8b Spruce, Philadelphia) 3% Harrisburg Hospital 4% Massachusetts Institute of Technology 7°h Harvard Medical School 7% Wills Eye Ex Residents Association 7% Massachusetts ~e 8s Ear Ex Residents Association ~ 7% Lehigh University 7% Messiah College 25°h Mechanicsburg Area Foundation 25% If any of the ~ bequests in this Section A should lapse or nqt bo able to be paid to the institution designated, then that bequest shall be divided equally among the other organizations in this Section. B, THIRTY-FIVE PERCENT (35%) to individuals, as fgllgws: Elaine RosaLq, per capita 7% Leslie AttierCon, per capita 7% Doris J. Jux~ldns, per capita 7% Linda Niziolak, per capita 12% Jennifer Elyard, per capita 22% Donna I{unl~el, per capita 22% Susan Heilig, per capita 7% Peggy DensHam, per capita 9% Destiny N. Heilig, per capita 7% If any of th~ individuals named in this Section B shall predecease i me, then the share than would have gone to that individual shall be divided equally among the survi~ing identified individuals in this :Section.. 2 C. THIRTY PERCENT (30%) to heirs of CATHERINE R. MAXWELL, as 1 follows: John W. Maxwe~, per stirpea 25% John has received money from me in the form of a loan. If that Ioan has not been repaid in full, then the unpaid balance of the loan shall be offset against .what he receives from my estate. Any such offset funds shall be distributed .equally among these five designated heirs of Catherine Maxwell. If the loan balance exceeds this distributive share, any remaining debt shall. be forgiven. Steven A. Maxwell, per atirpes 25% Steven has received money from me in the form of a loan. If that loan has not been repaid in full, then the unpaid balance of the loan.. shall be offset .against what he receives from my estate. Any such offset funds shall be distributed equally among these five designated heirs of Catherine Maxwell. If the loan balance exceeds this .distributive share, any remaining debt shall be forgiven. Douglas Maxwell, per stirpes 16 1/3 % Barry Maxwell, per stirpes 16 1/3% Sherri Maxwell, per stirpes 16 1/3% V The house in which I reside has been in my family for many years. I direct that when the residences along .with the approximately ten acres on which it is i i erected is conveyed that is deed restriction be inserted which would prohibit any further subdivision of th~t real property. I nominate, consti to and appoint FRED H. JUNHINS as Executor of this LAST WI1,L, to serve wi out bond. If FRED H. JUNKINS is unable or unwilling to act in that capacity, ten I nominate,. constitute and appoint M&T BANK, as Executor of this LAST WI~L, to serve without bond. 3 IN WITNESS WHF3REmF, I, CHARLES J. RIFE, have set my hand to this i LAST WILL this /, d of f~s~~. , 2009. .. Z 6 ~" ~1J"r" . ~- CHARLES J. RIFE Signed,. sealed, p~blis~ed and declared bythe above-named CHARLES J. RIFE, as and for his Las W and Testament, in the presence of us, .who, at his request .and in-his presencq, and in the presence of each other, have .hereunto. subscribed our names a9 witnesses. ,. ....~,. I I 4 U-CKNOWLEDCiSII[ENT COMMONWEALTH OF PENNSYLVANIA sa. COUNTY OF CUMBERLAND I, CHARLES J. RIFE, iTestator, whose name is signed to the. attached. or foregoing instrument, h ~ been duly qualified according to law, do hereby acknowledge that I aigne d executed the instrument as my LAST WILL; :that I signed it as my free and ~ol tary act for the. Purposes therein expressed. v-` CHARLES J. RI Sworn or affirmed to andj acknowledged before me by CHARLES J. RIFE, Testator, this old ~ ' dz;<y of , 2009. i No NOfARIAI liEAl DIANE M EMITFI Notary /ubUo MECNA11faEINi6lfMO. CIN-D CMItt My ColnmWlon EkplrwJUn Z'2, ~OT4 AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLPiND' We, ~i.~ ,4~J ~ . s i r4Q v>3 and ~~Q~G~ ~~. (N~~.~r.~! the witnesses whose .names are signed to the attached or foregoing instrument, being -duly qualified according to law, do depose and say .that we were present and .saw Testator sign and execute the instrument as his LAST WILL, that CHARLES J. RIFE signed willingly and that he .executed it as his free and voluntary act for the p ses therein expressed; that each of us in the hearing and sight. of the 't'estatorsigned the Will as witnesses; and that to the best. of our knowledge, flit Testator as at the time 18 yearn of age or more, of sound mind and under no constraint or undue influence. Sworn or affirmed to .and acknowledged before me thiso?d`~-day of A-rt~ ,2009. ~_ otary Public Nowfult tcu DIANE M •MRN Nofory PuDllo rAv cM~0^~p!~iRIANDCNIY In re the Edith S. Rife Trust : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. CONSENT I, JOHN W. MAXWELL, a remainder beneficiary of the Edith S. Rife Trust, hereby consent to my appointment as Successor Trustee of the Edith S. Rife Trust, if, but only if, the Decree of the Court by which my appointment is made orders that, as Successor Trustee, I shall have no liability (fiduciary or personal) with regard to any act or omission of any prior trustee. Date: 02 3 // JO W. MAXWEL In re the Edith S. Rife Trust : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. CONSENT I,?oe~ i+K ~, NUcrtr , V c c ~ ?Kars 7~~/~'r of Manufacturers and Traders Trust Company, hereby consent to the appointment of John W. Maxwell as Successor Trustee of the Edith S. Rife Trust. Att ~lST: VICE P,.'.'°.._?~i ~i TRUST Of:CEi2 Commonwealth of Pennsylvania County of Dauphin MANUFACTURERS AND TRADERS TRUST COMPANY 7°s A. 'Macri Vice Presidert~ J'rus# OfficeG ss Before me, the undersig~n/ed no public, this day personally appeared ~D~ r'b~ ~. /)~ctrir'i~ , V I z' ~ lrmf , i~ fn fi of MANUFACTURERS AND TRADER TRUST COMPANY, 213 Market Street, Harrisburg, PA 17101, to me known, who, being duly sworn according to law, deposes and says that Manufacturers and Traders Trust Company, legal successor to Dauphin Deposit Bank and Trust Company, having diligently searched its records, can find no reference to either the Edith S. Rife Trust, or any trust for Charles J. Rife or Catharine R. Maxwell. Subscribed and sworn to before me this ~ day of r"" h at /' 2011. Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notanal Seal Marcia E. Besic, Notary Public Ctty of Harrishurg, Dauphin County My Commi~lon Expires Nov. 28, 2013 Member, Pennsvlvan!a Ass~~sa>.lon of Notaries