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Home My WebLink About09-13-13 C, Z IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C'J ORPHANS' COURT DIVISION IN RE: Docket No. 21-07-069'61-'-J -, �t ESTATE OF LOTTIE IVY DIXON ACCOUNTANT, MANUFACTURERS AND TRADERS TRUST COMPANY'S ("M&T") MOTION TO STRIKE OBJECTIONS OF GEORGE F. DIXON, III AND RICHARD E. DIXON ("THE BROTHERS") TO M&T'S FIRST AND PARTIAL ACCOUNT AND NOW comes M&T, corporate trustee for the Lottie Ivy Dixon revocable trust, and makes the following motion to strike objections filed by The Brothers on or about July 26, 2013, stating in support thereof as follows: 1. The objections filed by The Brothers to M&T's account are frivolous, and should be summarily stricken or otherwise dismissed. 2. To the extent the objections focus on distributions made by M&T to their mother during her lifetime, The Brothers lack standing to challenge the same, because this was a revocable trust, and therefore the trustees' duties ran solely to the settlor, who had exclusive authority to direct and consent to the management of her own assets while she remained alive. 3. Indeed, Section 7753 of the probate estates and fiduciary code (20 Pa. C.S.) makes this concept completely explicit: "(a) Power of Settlor. Regardless of the legal capacity of the settlor, the rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor while a trust is revocable." 4. To the extent the objections focus on activity in the trust following their mother's death on June 28, 2007, The Brothers cannot be heard to object, since, upon her death, The Brothers themselves became co-trustees with M&T, as they affirmatively plead in Paragraph 4 of their own objections. 2 SLl 12531120 066255.00089 5. Under Section 7763 of the PEF Code,co-trustees act by majority. 6. Given that The Brothers were two of three co-trustees(the Bank being the third), any actions relating to the trust following Mrs. Dixon's passing were controlled by The { Brothers themselves, who are therefore estopped from objecting to their own actions or to actions of M&T which they could have overruled. 7. As a result,none of the objections have any merit whatsoever, and the same should be summarily stricken or dismissed. 8. No amount of discovery or other proceedings will, or can, alter the inescapable facts that(i) The Brothers lack standing to challenge actions taken by their mother and M&T to which she consented while she was alive, and, (ii) The Brothers, as two of three co-trustees, were in control of the trust upon her death. 9. In an excess of caution, M&T will respond to each of the 18 numbered objections individually,however, for the reasons set forth hereinabove, this is, in reality, an academic exercise since The Brothers are entirely incapable of stating a claim at all. 1. M&T reiterates that The Brothers have no standing to challenge distributions made during their mother's lifetime. Furthermore, any requirement of a written request for distributions was waiveable by the settlor, and was waived, by her, on occasion. The fact remains that the funds in the revocable trust belonged to Mrs. Dixon exclusively during her lifetime, and M&T simply accommodated her requests for distribution of her own money to her when such requests were made. Mrs. Dixon necessarily consented to these distributions by accepting them. 2. M&T incorporates its response to Objection No. 1 as though set forth in full herein. 3 SL 11253112v 1 066255.00089 3. M&T incorporates by reference its response to Objection No. I as though set forth in full herein. By way of further answer, there were no "remainder beneficiaries" during Mrs. Dixon's lifetime. Rather, because this was a revocable trust,the potential remainder beneficiaries actually had nothing more than a bare expectancy that they might, someday, inherit whatever money their mother had not spent. By way of further answer, the suggestion that the trustee owed duties to so-called"remainder beneficiaries" during Mrs. Dixon's lifetime is contrary to Pennsylvania law, specifically Section 7753(a) of the PEF Code, quoted above. 4. M&T incorporates by reference its response to Objection No. 3 as though set Forth in full herein. Moreover,there is absolutely no requirement in the trust instrument that "other means of income" or other resources be considered in evaluating a request for a distribution. Moreover, Pennsylvania law provides that unless a trustee is required under the express terms of the trust instrument to take into consideration other resources, it is supposed to ignore those other resources and presume that the trust was established for the benefit of the life beneficiary, here,the settler. Estate of Tashjian, 375 Pa. Super.221 544 A,2d 67 (1988). 5. M&T incorporates by reference its response to Objection No. 4 as though set forth in full herein. By way of further answer, the mere fact that the settlor requested a distribution is sufficiently descriptive under these circumstances. 6. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 7. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 8. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 4 SLI 1253112vt 066255.00089 9. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 10. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 11. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 12. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 13. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 14. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. 15. M&T incorporates by reference its response to Objection No. 5 as though set forth in full herein. By way of further answer, the QTIP trust account has been confirmed and is not relevant here. 16. The trust accounting was prepared and filed following Mrs. Dixon's death, and, consequently, The Brothers, as majority co-trustees, were in control of the filing and the timing thereof. Moreover, to the extent there was a modest delay, same was occasioned by The Brothers' own refusal to either sign the account or to affirmatively state that they would not. By way of further answer, it is notable that the majority co-trustees do not plead that a request(or for that matter a demand) for earlier filing of the account was made at any time. Moreover, the majority co-trustees also utterly fail to plead any harm or damage due to the timing of the filing of the account. 5 SLl 1253112v1066255.00089 17. M&T believes that there is no need to respond to Objection No. 17 and, further, that there is absolutely no reason for discovery or any further proceedings in order that these objections be stricken or dismissed. WHEREFORE, M&T respectfully requests that these frivolous objections be summarily stricken or dismissed, and that its account be approved and adopted such that this matter can be brought to a conclusion (at last). Respectfully submitted, Dated: September 12, 2013 STEVENS & LEE Mark D. Bradshaw, squire Attorney I.D. No. 61975 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7357 (610) 371-7362 (fax) mdb @stevenslee.com Attorneys for Accountant, Manufacturers and Traders Trust Company 6 SL l 1253112v 1 06625 5.00089 CERTIFICATE OF SERVICE I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing document upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Daniel L. Sullivan, Esquire Saidis, Sullivan& Rogers 26 West High Street Carlisle, PA 17013 Kim Colonna, Esquire Elizabeth Mullaugh, Esquire McNees, Wallace &Nurick LLC 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 Kevin J. Kehner Esquire Obermayer Rebmann Maxwell & Hippel LLP 200 Locust Street, Suite 400 Harrisburg, PA 17101-1508 Charlotte Dixon 323 Bayview Street Camden, ME 04843 (via electronic and U.S. Mail) Date: September 12, 2013 Mark D. Bradshaw SLl 1253112v1 066255.00089