HomeMy WebLinkAbout02-28-13COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-12-0552
ESTATE OF JAMES R. JOHNSTON, III, DECEASED
Late of Cumberland County , PA
FAMILY SETTLEMENT AGREEMENT AND RELEASE OF
JOHN C. OSZUSTOWICZ, EXECUTOR
Date of Death: Mazch 19, 2012
Letters Granted: May 14, 2012
First Complete Advertisement of Grant of Letters: June 2, 2012
Account stated to January 29, 2013
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John C Oszustowicz, Esq
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Carlisle, PA 1701:
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AGREEMENT TO INDEMNIFY, RECEIPT, AND REL ~ ~ _~ ,~~
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THIS AGREEMENT, by and among John C. Oszustowicz, Executl~r of the Estate Q~s o
James R. Johnston, III, Deceased and Marion N. Johnston and Lucy Johnston-Walsh.`J' ~''
WHEREAS, James R. Johnston, III died mazch 19, 2012, testate, a resident of
Cumberland County, Pennsylvania; and
WHEREAS, the Last Will and Testament of James R. Johnston, III dated January 29,
2004, was duly probated in the Office of the Register of Wills of Cumberland County,
Pennsylvania as appeazs of record at Number 21-12-0552 (a copy of the Will is attached hereto
and mazked Exhibit A); and
WHEREAS, Letters Testamentary were issued to John C. Oszustowicz on May 14, 20
and
WHEREAS, said Executor has duly administered the estate according to the laws of the
Commonwealth of Pennsylvania; and
WHEREAS, in ITEM 5: He gave and bequeathed to his wife, Marion N. Johnston, all
the rest, residue and remainder of his estate.
WHEREAS, John C. Oszustowicz , Mazion N. Johnston and Lucy Johnston-Walsh, have
been furnished with a complete listing of the estate assets, receipts and disbursements; and
WHEREAS, it is the desire of the parties to this Agreement that final distribution of this
estate be accomplished without a formal accounting to the Orphans' Court Division of the Court
of Common Pleas of Cumberland County, it being the desire of the parties to avoid the expense,
delay and publicity of a formal accounting.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
recited herein, the parties do agree as follows:
John C. Oszustowicz ,Marion N. Johnston and Lucy Johnston-Walsh, do hereby release and
forever dischazge John C. Oszustowicz, Executor, from any and all liability which he had or
may have or which may from time to time arise in connection with his service as Executor of
the Estate of James R. Johnston, III, Deceased, and hereby authorize and request the
Orphans' Court Division to chazge the same against their shares of said estate, and in
consideration for said distribution, hereby agree to refund any amounts so distributed which
may be required to fully dischazge any tax liability of the estate, debts of the decedent, or
administration expenses.
2. Each party to this Agreement acknowledges that this Agreement shall be indexed and
recorded in the estate proceedings and that the terms hereof shall be binding upon their
respective heirs, successors, executors, administrators and assigns.
This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania.
DATED this ~ day of b' , 2013.
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Witness ~
Jq~n Z`. Osz~stowicz, Executor
Ma o~i n N. John' n, Benefi
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Lucy JBl'mSton-Walsh, Beneficiary
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LAST WILL AND TESTAMENT
OF
JAMES R. JOHNSTON, Ill
I, James R. Johnston, III, of Cumberland County, Pennsylvania, do make, publish
and declaze this as and for my Last Will and Testament, hereby expressly revoking all
wills and codicils made by me heretofore, and dispose of my estate :~s follows:
ITEM L I duect the payment of my just debts and funeral expenses, including a
suitable and proper grave m2uker, as soon as conveniently can be done following my
decease.
ITEM 2: I direct than all State and Federal Transfer Inheritance Tax, Estate Tax,
Succession Tax or any other, tax, including any interest, assessments or penalties thereon,
that may become due and pagable by virtue of my death, or by virtue of the passing of
any property either under my Last Will and Testament, or in any other mam~er, shall be
paid from my residuary estate, just as if such taxes were my debts, a:td no beneficiary
shall be required to pay or refund any part thereof.
ITEM 3: The articles of household use in the home of my wife, Mazion N.
3ohnston, and myself are owned by the two of us as tenants by the entirety, and I
therefore make no disposition of the same because upon my death, she will be the sole
owner thereof by operation of law, if she survives me. Should my wife, Mazion N,
Johnston, fail to survive me, then I have prepazed a memorandum that will be found with
this, my Last Will and Testament that sets forth articles of household use and the persons
to whom those articles are to, be given if my wife does not survive me. If my
memorandum does not dispose of all of such articles of household use, or if there is no
memorandum found with my Last Will and Testament, then all of such articles of
household use not disposed of shall be given to my surviving children, as they shall
determine. If they cannot reach agreement, my Executor shall make distribution to my
children, as he deems appropriate in his sole discretion.
ITEM 4: My tangible personal property (excluding money, securities and the like)
and my motor vehicles, together with all insurance relating thereto, I give and bequeath
unto my wife, if she survives me. Should my wife fail to survive me, then I have prepazed
a memorandum that will be Found with this, my Last Will and Testament, that sets forth
items of tangible personal ptoperty and the persons to whom those items are to be given.
If my memorandum does nq't dispose of all of such items of tangible personal property, or
if there is no memorandum found with my Last Will and Testament, then all of such
items of tangible personal property not disposed of shall be given to my children, as they
shall determine. If they cannot reach agreement, my Executor shall make distribution to
my children, as he deems appropriate in his sole discretion.
ITEM 5: All of the rest, residue and remainder of my estate of whatsoever nature
and wheresoever situate, I give, devise and bequeath unto my wife, Marion N. Johnston,
if she survives me.
ITEM 6: If my wife,',Mazion N. Johnston, does not survive me, then after
calculating the balance remaining after the payment of the debts and expenses of the
administration of my estate, my Executor hereinafter named shall determine the balance
remaining and ten (10%) pe#cent of such balance I direct to be divided among the
following chazitable beneficFazies:
(1) I give sixty (60%) percent to the SECOND PRESBYTERIAN
CHURCH, of Carlisle, Permsylvania. It is my wish, but not my order that the monies are
used for the following:
(a) An amount to be placed in an endowment fund for the Church's
Memorial Gazden;
(b) A~ amount to be put into an endowment fund for scholazships
to be awazded by the Chwc),h;
(c) Ah amount to be used for the possible purchase of an organ for
the chapel and for the pwch~se of chancel furniture for the chapel.
If it appeazs inappro~briate or untimely to make such use of these funds, the money
shall be added to the scholaiiships.
(2) I give forty (40%) percent in equal shazes to the following
organizations: UNITED W~.Y; MARYVILLE COLLEGE; HAVF.RFORD COLLEGE;
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PROJECT SHARE; CARLI~LE REGIONAL PERFORMING ARTS CENTER, INC.;
SAMARITAN FELLOWSHIP; AND PRESBYTERIAN HOMES OF CENTRAL
PENNSYLVANIA. Then all of the residuary estate shall be given, devised and
bequeathed in equal shares unto my children, Jennifer, Gail, Ann, David, and Lucille
subject to the provisions of>~TEM 7. The amounts payable hereunder to my son David
will instead be held in trust ~`or his benefit until he reaches age 60. From the trust assets,
David shall receive annual distributions equal to 6% of the trust assets as they are valued
on December 31 of each yeak. For example, if on December 31 the trust assets equal
$100,000 then the trustee will pay out $6,000 to my son David or for his benefit in the
following yeaz. Payments shall be made quarterly. I appoint my daughter Lucille to be
Trustee and I appoint my daughter Ann as alternate Trustee to serve if Lucille is not
willing or not able to serve. My Trustee shall have discretion to make additional
payments to my son David or may make payments for his benefit, even out of principal if
she, in her sole discretion, deems such payment appropriate.
If a child does not survive me, then his or her shaze shall be divided as follows: if
a child predeceases me leaving children then my deceased child's shaze shall be divided
equally between his surviving children. I appoint Lucille to act as Trustee of the assets of
any minor beneficiary. Ann shall be alternate Trustee if Lucille is not willing or not able
to serve. If a child of mine >bredeceases me and leaves no children then the gift shall
lapse and the residtrazy estat~ shall be given to my surviving children subject to the
provisions of ITEM 7. If note of my children survives me, my residuary estate shall be
distributed one-half(1/2) unto my intestate heirs as determined under the laws ofthe
Commonwealth of Pennsylvania in effect at the time of my death and one-half (1(2) unto
my wife's intestate heirs as determined under the laws of the Commonwealth of
Pennsylvania in effect at the time of my death, subject to the provisions of ITEM 7.
ITEM 7: I further direct, anything hereinbefore to the contrary notwithstanding,
that in the event any or all of the distributions provided hereunder (except as provided in
Items 3, 4 and 6 above) be to a beneficiary or beneficiazies while she, he or they aze still
under the age of thirty-one (31) yeazs, that distribution of the shaze of each such
beneficiazy be instead to my (Trustee Lucille with Ann as alternate Trustee, to be held by
my Trustee in a sepazate and distinct trust for each such beneficiary for the following
purposes:
A. My Trustee shaltaccumulate the net income earned on each trust and shall add
the same to the corpus until'the beneficiary of said trust has reached the age of twenty-
one (21) years. Thereafter, the Trustee shall distribute the net income earned on each trust
to the bnneficiazy of that trust in regular installments, and at least quarter-annually.
B. In the sole and uncontrolled discretion of my Trustee, he may utilize both the
income and/or principal of each trust for the health, maintenance, education and support
of the beneficiary of that trust. It is my desire, but not my direction, that my Trustee
encourage any and all of the beneficiazies of the trusts created by this Will to further their
education along those lines which interest each beneficiary and provide for higher
education (college, professional, technical or any other forms of higher education) of any
or all of my beneficiazies, u~ to the extent or limit of principal and income of the trust of
which he or she is a beneficiary.
C. My Trustee may spay over from time to time such of the principal of the
beneficiary's trust as he or s~te may request in writing, provided the intended use is for a
purpose which the Trustee Ljelieves will promote his or her support, such as the purchase
of a home, establishing a business or profession, wedding expenses, etc.
D. My Trustee shall make expenditures for any beneficiaries without the
intervention of a guazdian.
E. My Trustee may I}ay the reasonable burial expenses, including a suitable and
proper grave mazker, for they, bnneficiazy of any trust that has not been terminated by
previous distribution, and if ~ny Trustee, in the exercise of his sole discretion, chooses to
pay the same, he shall charge the expense thereof against the trust of that beneficiary.
F. The beneficiary of each such trust shall have the right to withdraw in one or
more installments up to one-third (1/3) of the market value of the principal of his or her
trust after attaining the age oftwenty-five {25) years and prior to attaining the age of
twenty-eight (28) years. The beneficiary of each such trust shall have the right to
withdraw in one or more installments up to one-half (1 /2) of the market value of the
principal of his or her trust after attaining the age of twenty-eight (28) yeazs and prior to
attaining the age of thirty-ome (31) yeazs. And the beneficiary of each such Crust shall
have the right to withdraw in one or more installments the balance of the market value of
the principal of his or her trust, after attaining the age of thirty-one (31) years. The mazket
value of the principal shall iDe determined by my Trustee when the beneficiary, upon
reaching each of the permittdd ages for withdrawals, makes the first withdrawal for the
age category. '
G. In the event any tenefciary of beneficiazies subject to the provisions of this
item dies prior to having received full distribution of his or her trust, my Trustee shall
distribute the Trust to those'persons who would be considered as the beneficiazies of my
residuazy estate; provided, however, such residuary beneficiaries shall be determined as if
I had died on the date of death of the trust beneficiary rather than my date of death.
ITEM 8: In the administration of my estate and the trusts herein created, my
Executor and Trustee shall have the following powers without leave of court in addition
to, but not in limitation of, the powers granted by law to the Executors and Trustees of
estates and trusts, which polders shall continue after the termination of my estate and the
trust or trusts provided for herein until actual distribution of the assets:
A. To receive in the state and to receive and retain in the trusts any assets, real or
personal, to which I may be Cntitled at the time of my death, which my Executor or
Trustee may deem for the best interest of the estate or trusts without being required to
convert said assets.
B. To invest and reinvest in such securities as a prudent man of intelligence and
discretion would buy for himself for investment, and not for speculation, giving due
regazd to the safety of the principal and the adequacy of the income, said investment
authority to include the right to invest in any Discretionazy or Legal Common Trust Fund
that may be administered and managed by my Corporate Trustee.
C. To sell or buy real estate without Court order at public or private sale; to make,
execute and deliver or receive good and sufficient deeds of conveyance and give or
receive good title therefore; to reinvest the proceeds as if they had originated in personal
property; to mortgage or encumber any real estate held in trust, or comprising part of my
estate, borrowing the necessary funds from any source, including themselves; to improve
any property or otherwise etypend principal funds for the upkeep and welfaze of any
properties; to release, vacate and abandon the same; to grant and acquire licenses and
easements with respect thereto; to make improvements to or upon the same; and in
general to do all things necessazy in the management of the properties as if they aze the
owners thereof, including the right to ]et property and to make leases for any term
including beyond the terms of the trusts. The purchaser shall not be required to see to the
proper application of proceeds but may pay the same over to the Executor or Trustee
selling the same.
D. To make distribution hereunder in cash or of property and securities in kind at
fair mazket value at the time of such distribution and in such a manner as to be fair,
equitable and just to all concerned. Distributions of property and securities aze not
required to be identiical among the beneficiazies and shares, and some may receive one
t~pe of property or security while another may receive another type of property or
security.
E. Income accrued on any property received by my Trustee either at the inception
o~'the trust or as an additiom thereto shall be treated as income and not as principal. Upon
the death of any beneficiary of income, any undistributed income in the hands of my
T}-ustee held for such beneficiary at the time of his or her death shall be paid to the person
o¢ persons for whose benefit the principal producing such income is continued in trust or
to whom it is distributed under the terms of this Will.
F. To exercise any election or privilege given by the federal and other tax laws,
including but not limited to, the consent on gift tax returns to have any gift made by my
sp~use considered as made in part by me for gift tax purposes, the filing of joint income
tab returns, the payment of any portion of income or gift tax due under such returns, the
el~ction of the alternate valuation for federal estate tax purposes, the election to claim
deQluctions for federal estate tax or for federal income tax purposes, the allocation of the
federal generation-skipping tax exemption and the election of the method of payment of
pension, profit-sharing, HR-1 O, individual retirement account, and any other similaz
benefits. In addition, my fiduciaries, in their sole discretion, may make or not make
equitable adjustment among the beneficiaries, without the consent of the beneficiazies,
for ithe exercise or non-exercise of any election or privileges. In particular, the Executor is
alscl authorized:
i. To allocate any of my exemption from the Federal Generation Skipping
Transfer Tax provided in Section 2631 of the Internal Revenue Code of 1986, as
amended (the "Code"), which is available at the time of my death to any property
as to which I am deemed to be the transferor under the provisions of Section
2652(a) of the Code, including any property transferred during my life as to which
I did not make an allocation prior to my death.
ii. Property may be subject to allocation under Subpazagraph i of this
ITEM 8 F. whether or not it is included in my probate estate. All allocations
under Subparagraph i of this ITEM 8 F. shall be in the sole discretion of my
Executor, who shall have the power to omit any such property from any such
allocation. Any decision made by my Executor shall be binding on all persons.
G. To disclaim and/or renounce any amounts to which I may be entitled from any
tr(rst or estate of which I am a beneficiazy if my fiduciary, in such fiduciary's sole
d' Ii cretion, believes such renunciation or disclaimer would be appropriate.
H. To register or carry any investment in their own names or in the names of one
or'more nominees including that of a Corporate Trustee or a member firm of the New
Yc}rk Stock Exchange, a clearing house, a depository, in book entry form, or to retain any
suyh investment unregistered or in a form permitting transfer by delivery.
I. To vote by person or proxy and to participate in any reorganization or merger of
co~panies or corporations whose stock is held by them. My fiduciazies may exercise any
an~ all conversion, subscription and other rights of whatever nature, including, but not
limpted to, stock options with respect to any stocks or other securities and shall have the
right to sell or otherwise dispose of all or any part of the assets held or to borrow for the
pur~ose of making payment.
J. To allocate to principal corporate distributions received in shazes ofthe
distributing corporation, regardless of the number of shares and however described or
designated by the distributing corporation.
K. To employ from time to time such person or persons, upon such terms and
c{~nditions as they deem advisable, to perform all ministerial and administrative duties,
including investing and reinvesting property, keeping books and records and preparing all
t~x returns.
L. If my Trustee determines, in his sole discretion, that the principal of any one
(11) or more ofthe trusts provided herein is too small to administer in a cost effective
manrter for the benefit of the beneficiaries, then the Trustee shall be permitted to
distribute the principal and any accumulated income to the then existing income
beneficiaries of such trusts.
ITEM 9: No assignment or order by any beneficiazy by way of anticipation of any
of the principal or income of the trusts herein created shall be valid; but the income and
principal shall be paid directly to the benefciazies entitled to receive it, and the income
and principal shall not be subject to attachment, execution, levy, sequestration,
hypothecation, garnishment or other process while in the hands of my Trustee.
ITEM 10: If, for any reason, a guardian over the estate of a beneficiary or
beneficiaries is needed or required, my Trustee, or his successor, shall be the guardian of
the estate of such beneficiary or beneficiazies, with the same rights, powers, privileges,
duties and responsibilities as 1 have given to him as Trustee.
ITEM 11: All references in my Will to children and intestate heirs shall include
those born or adopted, either before or after the date of my Will. Adopted persons shall
be cpnsidered as children of their adoptive parents, and they and their descendants shall
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be considered as issue of their adoptive parents, regardless of the date of the adoption.
For purposes of this Will, my children shall include Jennifer, Gail, Ann, David and
Lucille.
ITEM 12: I nominate, constitute and appoint my wife, Marion N. Johnston, as
Executrix of this, my Last Will and Testament. If my wife is unable or unwilling to serve
orto continue to serve as Executrix, my lawyer, John C. Oszustowicz, shad serve as sole
Executor. If he is unable or unwilling to serve or to continue serve as an Executor, Tricia
D. Naylor, Esq. shall serve as sole Executrix. No Executrix, Executor or Trustee shall be
required to give bond.
ITEM 13: Wherever the context requires, the rnasculine gender shall include the
and the singulaz shall include the plural, and
d vice versa,
fetniitine and neuter gender, an
vice versa.
IN V~{ITNESS WHEREOF, I leave hereunto set my hand and seal this ~ y day
24Q4.
of ~ ti~
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ames R. Johnst ,III
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U the above-named Testator>who,
ublished, acknowledged and declared by resence of us,
Signed, sealed, P III as and for his Last Will and Testament, m the p
James R- Johnst°n, resence and in the presence of each other, have hereunto subscribed
at his reque~, ~ his p
names as witnesses thereto.
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CO1~iMONWEgLTH OF PENNSYLVANIA )
COUNTY OF CUMBERLAND ) SS;
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I, James R. Johnston, III, Testator, who signed the foregoing instrument, having
ben duly qualified according to law, acknowledge that I signed and executed the
instrument as my free and voluntary act for the purposes therein contained.
S rn to or affirmed and
ack~iowledged before me by
Jatr~es R. Johnston, IIF, the
Tes~ator, [hiss*~~ day
of~~ ,~ 1v ~ , 2004.
Ja R. Johnston, II
Public
CO ON WEALTH OF PENNSYLVANIA )
SS:
CO TY OF CUMBERLAND )
I We, the undersigned witnesses who signed the foregoing instrument, being duly
qualified according to law, depose and say that we were present and saw Testator sign
and a ecute the instrument as his Last Will and Testament; that he signed and executed it
w211it~ly as lus free and voluntary act for the purposes therein expressed; that each of us
in his jsight and hearing signed lihe Will as witnesses; that Testator is known to each of us;
and t Ito the best of our knowledge and observation the Testator was at the time
eight (7 8) years of age or older, of
influe e.
mind and under no constraint or undue
Swortp to or affirmed and subscribed
to bef re me by \C hr i C US ZuSiutiv ~ c1-
and r ; a Na l o, witnesses,
this ~t'r'day of ~Cx~ ,A c~_, 2004
~' ~ .~.y
Not Public
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