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HomeMy WebLinkAbout10-11-91 . ,I . (o/q'[<t"C IN RE: ESTATE OF ROBERT M MUMMA, late of Cumberland County, Pennsylvania. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-86-398 ORPHANS' COURT DIVISION CITATION WE COMMAND, you that laying aside all business and excuses whatsoever, you be and appear in your proper person before the Honorable Judges of the Common Pleas Court, Orphans' court Division at a session of the said Court there to be held, for the County of Cumberland to show cause why in this Court at Courtroom No.1, Cumberland County Courthouse, Carlisle, pennsylvania, on December 18, 1991, at 9:30 o'clock A. M. why they should not be required to either deliver up or to make available at a convenient place and time for perusal or possible copying by Robert M. Mumma, II, his attorneys, agents, or representatives the following certain items: 1. All legal opinion and/or advice letters or memos by Morgan, Lewis & Bockius or other attorneys or accountants or other advisers or experts rendered to or made available to the executrices or trustees in connection with the estate or trusts established under the will of the late Robert M.Mumma, This request and demand to include any notes made by or for the executrices or trustees pertaining to legal opinions or advice and extends to not only those said letters, notes and memos which are in the possession and control of the executrices and trustees but also to all such said letters, memos and notes which the executrices or trustees have within their authority and power to request that delivery be made to them or to request that the same be made available to them. This request and demand is to include but not to be limited to the following more specific requests and demands. 1177 PAGE 2 CITATION 2. All opinion and/or advice letters, memos, notes, and the like regarding valuation of assets of the estate or trusts rendered by any attorneys or accountants or other advisers or experts. 3. All opinion and/or advice letters, memos, notes and the like regarding the prudence or advisability of any sale or any transfer of any assets of the estate or trusts rendered by any attorneys or accountants or other advisers or experts. 4. All opinion and lor advice letters, memos, notes and the like regarding the funding of the trusts under the will of Robert M.Mumma and the advisability of the withdrawal of any assets or any specific assets from the trusts rendered by any attorneys or accountants or other advisers or experts. 5. All opinion and/or advice letters, memos,notes and the like regarding the legitimacy of any charges and/or fees made to the estate or trusts by the executrices and trustees or either of them for services rendered m their fiduciary capacities or as officers, directors or employees of any corporations, tenancies in common, partnerships, joint ventures or any other form of association or entity where they have an interest in the same by virtue of their holdings in the estate or trusts. 6. All billings, fees expense statements and the like rendered to the estate or the trusts by attorneys, accountants and/ or any other experts or advisers and also itemized billings and time sheets to show the legitimacy of such billings, fees, expense statements and the like which the executrices and trustees have it within their rights and power to request whether such requests have been made previous to this request and demand or not. 7. Copies of any and all fire and/or casualty insurance policies and the like, and any riders,endorsements, itemized lists, and the like thereto which deal with personal property which was at any time part of the estate or trusts or which still is part of the estate or trusts. 1178 . ,{Xp . lo.<{4f[ IN RE: ESTATE OF ROBERT M. MUMMA, late of Cumberland County, Pennsylvania IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-86-398 ORPHANS' COURT DIVISION RULE TO SHOW CAUSE AND NOW, this 6# day of (!\r.Cfc/ B1" , 1991, upon consideration of the annexed Petition and pursuant to the jurisdiction, authority and powers of the Orphans' Court, it is hereby decreed that citations be awarded, directed to Barbara McK. Mumma and Lisa M. Morgan, Executrices andTrustees of the Will of Robert M. Mumma, deceased, to show cause in this Court at Courtroom No. L, Cumberland County Courthouse, Carlisle, Pennsylvania, on d'vCe.Unt.J...u. / / g ,1991. at l' .1d o'clock A.M. why they should not be required to either deliver up or to make available at a convenient place and time for perusal or possible copying by Robert M. Mumma, II, his attorneys, agents, or representatives the following certain items: 1. All legal opinion and/or advice letters or memos by Morgan, Lewis & Bockius or other attorneys or accountants or other advisers or experts rendered to or made available to the executrices or trustees in connection with the estate or trusts established under the will of the late Robert M. Mumma. This request and demand to include any notes made by or for the executrices or trustees pertaining to legal opinions or advice and extends to not only those said letters, notes and memos which are in the possession and control of the executrices and trustees but also to all such said letters, memos and notes which the executrices or trustees have within their authority and power to request that delivery be made to them or to request that the same be made available to them. This request and demand is to include but not to be limited to the following more specific requests and demands. 1180 l < 2. All opinion and/or advice letters, memos, notes, and the like regarding valuation of assets of the estate or trusts rendered by any attorneys or accountants or other advisers or experts. 3. All opinion and/or advice letters, memos, notes and the like regarding the prudence or advisability of any sale or any transfer of any assets of the estate or trusts rendered by any attorneys or accountants or other advisers or experts. 4. All opinion and/or advice letters, memos, notes and the like regarding the funding of the trusts under the will of Robert M. Mumma and the advisability of the withdrawal of any assets or any specific assets from the trusts rendered by any attorneys or accountants or other advisers or experts. 5. All opinion and/or advice letters, memos, notes and the like regarding the legitimacy of any charges and/or fees made to the estate or trusts by the executrices and trustees or either of them for services rendered in their fiduciary capacities or as officers, directors or employees of any corporations, tenancies in common, partnerships, joint ventures or any other form of association or entity where they have an interest in the same by virtue of their holdings in the estate or trusts. 6. All billings, fees, expense statements and the like rendered to the estate or the trusts by attorneys, accountants and/or any other experts or advisers and also itemized billings and time sheets to show the legitimacy of such billings, fees, expense statements and the like which the executrices and trustees have it within their rights and power to request whether such requests have been made previous to this request and demand or not 7. Copies of any and all fire and/or casualty insurance policies and the like, and any riders, endorsements, itemized lists, and the like thereto which deal with personal property which was at any time part of the estate or trusts or which still is part of the estate or trusts. 1181 . 8. Permit access to and inspection of all ORIGINAL stock certificates held by or issued to the executrices/trustees and stock books or ledgers of all the family corporations. BY THE COURT: /~ r;.Jk-- f P.l. x ~. \ !'I 10 t; , jD' I 1182 IN RE: ESTATE OF ROBERT M. MUMMA, late of Cumberland County, Pennsylvania IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-86.398 ORPHANS' COURT DIVISION ORDER AND NOW, this _ day of , 1991, upon consideration of the annexed Petition and pursuant to the jurisdiction, authority and powers of the Orphans' Court, it is hereby ordered that Barbara McK. Mumma and Lisa M. Morgan, Executrices and Trustees of the Will of Robert M. Mumma, deceased, make available at a convenient place and time for perusal or possible copying by Robert M. Mumma, II, his attorneys, agents, or representatives of the following certain items: 1. All legal opinion and/or advice letters or memos by Morgan, Lewis & Bockius or other attorneys or accountants or other advisers or experts rendered to or made available to the executrices or trustees in connection with the estate or trusts established under the will of the late Robert M. Mumma. This request and demands to include any notes made by or for the executrices or trustees pertaining to legal opinions or advice and extends to not only those said letters, notes and memos which are in the possession and control of the executrices and trustees but also to all such said letters, memos and notes which the executrices or trustees have within their authority and power to request that delivery be made to them or to request that the same be made available to them. This request and demand is to include but not to be limited to the following more specific requests and demands. 1183 2. All opinion and/or advice letters, memos, notes, and the like regarding valuation of assets of the estate or trusts rendered by any attorneys or accountants or other advisers or experts. 3. All opinion and/or advice letters, memos, notes and the like regarding the prudence or advisability of any sale or any transfer of any assets of the estate or trusts rendered by any attorneys or accountants or other advisers or experts. 4. All opinion and/or advice letters, memos, notes and the like regarding the funding of the trusts under the will of Robert M. Mumma and the advisability of the withdrawal of any assets or any specific assets from the trusts rendered by any attorneys or accountants or other advisers or experts. 5. All opinion and/or advice letters, memos, notes and the like regarding the legitimacy of any charges and/or fees made to the estate or trusts by the executrices and trustees or either of them for services rendered in their fiduciary capacities or as officers, directors or employees of any corporations, tenancies in common, partnerships, joint ventures or any other form of association or entity where they have an interest in the same by virtue of their holdings in the estate or trusts. 6. All billings, fees, expense statements and the like rendered to the estate or the trusts by attorneys, accountants and/or any other experts or advisers and also itemized billings and time sheets to show the legitimacy of such billings, fees, expense statements and the like which the executrices and trustees have it within their rights and power to request whether such requests have been made previous to this request and demand or not 7. Copies of any and all fire and/or casualty insurance policies and the like, and any riders, endorsements, itemized lists, and the like thereto which deal with personal property which was at any time part of the estate or trusts or which still is part of the estate or trusts. 1184 " 8. Permit access to and inspection of all ORIGINAL stock certificates held by or issued to the executrices/trustees and stock books or ledgers of all the family corporations. BY THE COURT: J. 1185 INRE: ESTATEOF ROBERT M. MUMMA, late of Cumberland County, Pennsylvania IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO. 21-86-398 ORPHANS' COURT DIVISION PETITION OF ROBERT M MUMMA. II. SON OF DECEDENT AND BENEFICIARY UNDER DECEDENT'S WILL. TO COMPEL COMPLIANCE WITH REQUEST/DEMAND THAT CERTAIN DOCUMENTS EITHER BE DELIVERED UP FOR ROBERT M. MUMMA II'S PERUSAL AND POSSIBLE COPYING OR THAT THEY BE MADE AVAILABLE AT A CONVENIENT PLACE AND TI ME FOR ROBERT MUMMA II'S PERUSAL AND POSSIBLE COPYING AND NOW COMES Robert M. Mumma, II, individually, and Robert M. Mumma, II and Gary M. Gilbert, as court-appointed guardians of the estates of Susan Mann Mumma and Marguerite Mann Mumma, (hereinafter "Objectant") by his attorneys, Charles E. Shields, III, of Mechanicsburg, and William C. Costopouios, of Lemoyne, and respectfUlly represents: RE: JURISDICTION 1. Your Honorable Orphans' Court has jurisdiction over the matters raised herein by virtue of Section 711 of the "Decedents, Estates and Fiduciaries Code", also known as the "Probate, Estates and Fiduciaries Code." 20 Pa. C.S.A. sec. 711. RE: ORPHANS' COURT'S AUTHORITY & POWER 2. Your Honorable Orphans' Court has the requisite power and authority to compel compliance with petitioner's requests/demands made herein pursuant to the following sections of Title 20 Pa.C.S.A: 7 11( 1 ) (2) ( 12) (relating to the oversight of the adm inistration of estates and testamentary trusts and the control of fiduciaries); 731 (regarding an Orphans' Court Judge's power to hear and determine all matters jurisdiction of which is exercised through the Orphans' Court); 769 (power to make such orders as are just and necessary to 1186 , ' cQmpel cQmp liance with the requirements Qf any citatiQn Qr notice); 772 (power tQ issue any injunction that a cQurt Qf equity CQuld issue in all matters of Orphans' Court jurisdictiQn); 3311 and 7131 (the executrices/trustees are tQ have pQssession Qf and are tQ adm inister for the benefit of the estate all real and persQnal property, including papers, documents and like items), 3, At the common law, under the equitable powers Qf a ChancellQr sitting in equity, YQur HQnQrable CQurt has the power and authQrity tQ cQmpel compliance, initially and on an ongQing basis, with petitiQner's instant requests/demands, RE: PROBATE OF WILL. ISSUANCE AND ACCEPTANCE OF LETTERS TESTAMENTARY 4, Robert M, Mumma, father Qf the Petitioner, died on April 12, 1986, a resident of Cumberland CQunty, Pennsylvania. 5, The said Robert M, Mumma's will and the codicil thereto were duly prQbated and letters testamentary were duly granted thereQn by the Register Qf Wills of Cumberland CQunty to his widQw, Barbara McK, Mumma ("Mrs, Mumma") and to his daughter Lisa M. MQrgan, nee Mumma ("Mrs, MQrgan") on June S, 1986. 6. By the prQbate of the Will and the acceptance Qf the issuance Qf the Letters Testamentary thereon, Mrs. Mumma and Mrs, Morgan accepted the Qffices Qf both CQ- executrices and cQ-trustees under the will as well as all the duties, resPQnsibilities and liabilities attendant tQ said offices. RE: CONTENTS OF ROBERT M. MUMMA'S WILL 7, RQbert M. Mumma's Will is dated May 19, 1982 and the Codicil thereto is dated October 12, 1984, (Said Will and Codicil are attached hereto, incQrpQrated herein and made a 2 1187 part hereof and are marked "Exhibit A"). 8. Said Will contains, in Articles FIRST through SIXTH, clauses to, inter alia, revoke previous wills; pay debts, funeral expenses, and estate and inheritance taxes; and make specific bequests of some specific items to specificaJly named individuals. 9. Article SEVENTH of the said Will establishes a marital trust under which the income is to be paid to the widow, Mrs. Mumma, for life. At her death, the principal is to be paid to the named four children, including the petitioner herein, "share and share alike, per stirpes, and not per capita." 1 O. Article EIGHTH of the said Will establishes a residuary trust under which the income is to be paid to the widow, Mrs. Mumma, for life. At her death, the principal is to be paid to the named four children, including petitioner herein, "share and share alike, per stirpes, and not per capita." 11. Article FIFTEENTH of the said Will as per the said Codicil, nominates, constitutes and appoints the aforesaid widow, Mrs. Mumma, and the aforesaid daughter, Mrs. Morgan, as co- executrices of the said Will. 12. Article FIFTEENTH of the said WiJl as per the said Codicil, also nominates, constitutes and appoints the aforesaid widow, Mrs. Mumma, and the aforesaid daughter, Mrs. Morgan, as co- Trustees of the aforesaid Trusts established in the aforesaid Articles SEVENTH and EIGHTH "to administer said Trusts as directed by [the said] Jast will"." 13. Said Articles SEVENTH and EIGHTH of said Will prOVided a gift over or remainder interest after the termination of Mrs. Mumma's life interest upon her death to four named children, to wit: Robert M. Mumma, II, Petitioner herein, Barbara M. McClure, Linda M. Roth and Lisa M. Mumma, now Mrs. Morgan, "share and share alike, per stirpes and not per capita." Said children's shares in the remainder or gift over are as tenants in common and not as joint tenants with right of survivorship as amongst themselves. 14. Upon the death of Robert M. Mumma, the said remainder interests in common in 3 1188 favor of the said named four chl1dren vested absolutely in interest but not in possession, the possession being postponed until the termination of the said life interests in the said trusts upon the death of Mrs. Mumma. 15. Petitioner is the parent, natural guardian, and next of friend of and for Robert M. Mumma III, his natural son by his former wife, Sally Osler Songster, of 19 East Marble Street, Mechanicsburg, Cumberland County. The said son was born on May 12, 1982, prior to the death of the late Robert M. Mumma, and holds an executory interest under Articles SEVENTH and EIGHTH of the said WilL 16. Petitioner is also the parent, natural guardian, and next of friend of and for Susan Mann Mumma and Marguerite Mann Mumma, his natural daughters by his current wife, Susan Regan Mumma. The said daughters were born on June 19, 1987 and on October 12, 1990, respectively, after the death of the late Robert M. Mumma, and are holders of executory interests under Articles SEVENTH and EIGHTH of the said WilL 16a. Robert M. Mumma, II and Gary M. Gl1bert are the court-appointed guardians of the estate of Susan Mann Mumma and Marguerite Mann Mumma pursuant to Order of Judge John T. Miller of York County Orphans' Court, dated ()rl-()hPt:...A_, 1991. RE: PETITIONER'S PURPORTED DISCLAIMER 17. On January 6, 1987, Petitioner executed a document prepared for him by Arthur L. Klein, a partner in the Phl1adelphia law firm of Morgan, Lewis & Bockius, the firm representing Mrs. Mumma and Mrs. Morgan in the administration of the estate of Robert M. Mumma. 18. The document was called "Disclaimer by Robert M. Mumma II." it recited provisions of Articles SEVENTH and EIGHTH of the said Will and purported to disclaim and renounce all of Petitioner's right, title and interest in and to the principal of the trusts under the aforesaid articles of said Wl1l. 4 1189 19, The so-called "Disclaimer" was filed in the Office of Register of Wills of Cumberland County on January 12, 1987 under circumstances and alleged facts which have been and are highly disputed, RE: APPOINTMENT OF GUARDIAN AD LITEM 20, The executrices aforesaid developed a plan to sell certain key businesses (especially 999, Inc" a holding company for key operating businesses) within the Mumma family enterprises system to a foreign buyer despite Petitioner's knowledge that such was not his deceased father's true intention and his assertion that he was prepared to purchase the key businesses being proposed for sale, (See Diagram "A" attached hereto), 21, In connection with the plans of the executrices to sell these key family businesses to a foreign buyer, they filed actions for Declaratory Judgment and for other equitable relief. 22, Said actions by the executrices were designed to ultimately force Petitioner to go along with a sale he adamantly asserted was against his deceased father's true intentions, 23, Since Petitioner had supposedly agreed to the filing of his purported disclaimer, his standing to contest certain actions of the executrices as they related to the affairs of his father's estate in the Orphans' Court was open to attack, 24, Executrices, contemporaneously with the filing of their actions for Declaratory Judgment and for other equitable relief, filed with the Orphans' Court a PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM 25, Although the aforesaid PETITION and its WHEREFORE clause pointedly referred only to Petitioner's then born two (2) eldast children, Robert M, Mumma, III, and Susan Mann Mumma, the Orphans' Court issued the Decree herein quoted which extended to all minor persons interested in the estate of Robert M, Mumma, to wit: 5 1190 AND NOW, this 29th day of December, 1988, upon consideration of the annexed Petition, Robart M. Frey, Esq., is hereby appointed Guardian ad Litem for the minor persons interested in the estate of Robert M. Mumma, deceased, with authorization to represent said minor persons in all matters related to the sale of Nine Ninety- Nine, Inc. and Hummelstown Quarries, Inc. and the actions for Declaratory Judgment and Other Relief pertaining thereto, which actions are now pending before this Court, and in any further or other proceedings in the Court of Common Pleas of Cumberland County or the Court of Common Pleas of Dauphin County, Pennsylvania relating to relating or arising out of such matters. 26. The scope and breadth of the said Decree of Appointment speak for themselves and show that the Guardian ad Litem's appointment was for limited and specified purposes and did not encompass a general guardianship of all interests of the said minors nor was it an appointment as a guardian of the said minors' estates. RE: COURT PERMITTED REVOCATION OF DISCLAIMER 27. On June 20,1989, Petitioner filed a PETITION TO REVOKE DISCLAIMER in the form of a rule to show cause. 28. The Guardian ad Litem opposed Petitioner's efforts to withdraw his purported disclaimer. 29. A hearing was held in front of Presiding Judge Sheely on August 28, 1989 at which time the parties were directed to file briefs upon the issue of revoking the disclaimer. 30. On November 17, 1989, Presiding Judge Sheely, by an order accompanied by an opinion, granted Petitioner's motion to revoke his disclaimer. 31. On January 16, 1990, Petitioner filed a praecipe to withdraw the disclaimer. 32. On January 23, 1990, the Register of Wills of Cumberland County ordered the revocation of Petitioner's disclaimer. 33. The guardian ad litem has appealed the allowance of the revocation of disclaimer to the Superior Court which remanded the matter because exceptions to the Decree Nisi had not 6 1191 tJeen acted upon when the Guardian ad Litem took h is appeal. 34. The disclaimer appeal by the guardian ad litem, RotJert M. Frey, is on an informal wait and see status. RE: PETITIONER. PARENTS. AND RESPONDENTS 35. Petitioner is an adult individual and currently resides at Bowmansdale, York County (Box 58) PA 17008. 36. Petitioner's current wife, Susan Regan Mumma, the mother of the said Susan Mann Mumma, is an adult individual and resides with Petitioner at the same address. 37. Petitioner's former wife, Sally Osler Songster, the mother of the said RotJert M. Mumma III, is an adult individual and currently resides at 19 East MartJle Street, Mechaniesburg, CumtJerland County, Pennsylvania. 38. Respondent, co-executriee and co-trustee, BartJara McK. Mumma (Mrs. Mumma) is an adult individual currently residing at 845 Kiehl Drive, Lemoyne, CumtJerland County, Pennsylvania. 39. Respondent, co-executriee and co-trustee, Lisa Morgan (Mrs. Morgan) is an adult individual currently residing at 804 Michigan Avenue, Lemoyne, Cumberland County, Pennsylvania. RE: CURRENT REQUEST IDEMAND AND REFUSAL 40. By letter dated and mailed March 19, 1991, Petitioner herein, tJy local counsel, Charles E. Shields, III, made a request and demand upon counsel for the exeeturices/trustees either for the delivery of or the making available of certain documents and the like. (See said letter attached hereto as "ExhitJit B.") 41. By letter dated and mailed April 16, 1991, counsel for the executrices/trustees refused to make the requested documents availatJle and questioned petitioner's standing to make the request/demand. (See said letter attached hereto as "ExhitJit C. ") 7 1192 42. By letter dated and mailed April 29, 1991, petitioner herein, by local counsel, Charles E. Shields, III, made a renewed request/demand upon counsel for the executrices/trustees and addressed their concerns and questions. (See letter attached hereto as "Exhibit D"l. 43. The executrices/trustees have still not delivered nor made available any of the requested/demanded documents. CONTENT OF PETITIONER'S REQUEST /DEMAND: 44. All legal opinion and/or advice letters or memos by Morgan, Lewis & Bockius or other attorneys or accountants or other advisers or experts rendered to or made available to the executrices or trustees in connection with the estate or trusts established under the will of the late Robert M. Mumma. This request and demand to include any notes made by or for the executrices or trustees pertaining to legal opinions or advice and extends to not only those said letters, notes and memos which are in the possession and control of the executrices and trustees but also to all such said letters, memos and notes which the executrices or trustees have within their authority and power to request that delivery be made to them or to request that the same be made available to them. This request and demand is to include but not to be limited to the following more specifiC requests and demands. 45. All opinion and/or advice letters, memos, notes, and the like regarding valuation of assets of the estate or trusts rendered by any attorneys or accountants or other advisers or ex perts. 46. All opinion and/or advice letters, memos, notes and the like regarding the prudence or advisability of any sale or any transfer of any assets of the estate or trusts rendered by any attorneys or accountants or other advisers or experts. 47. All opinion and/or advice letters, memos, notes and the like regarding the funding of the trusts under the will of Robert M. Mumma and the advisability of the withdrawal 8 :1193 or any assets or any specific assets from the trusts rendered by any attorneys or accountants or other advisers or experts. 48. All opinion and/or advice letters, memos, notes and the like regarding the legitimacy of any charges and/or fees made to the estate or trusts by the executrices and trustees or either of them for services rendered in their fiduciary capacities or as officers, directors or employees of any corporations, tenancies in common, partnerships, joint ventures or any other form of association or entity where they have an interest in the same by virtue of their holdings in the estate or trusts. 49. All billings, fees, expense statements and the like rendered to the estate or the trusts by attorneys, accountants and/or any other experts or advisers and also itemized billings and time sheets to show the legitimacy of such billings, fees, expense statements and the like which the executrices and trustees have it within their rights and power to request whether such requests have been made previous to this request and demand or not. 49a. By this petition, Petitioner makes additional demands for copies ofllnY and all fire and/or casualty insurance policies and the like, and any riders, endorsements, itemized lists, and the like thereto which deal with personal property which was at any time part of the estate or trusts or which still is part of the estate or trusts. 49b. By this petition, Petitioner makes additional demands for access to and inspection of all ORIGINAL stock certificates held by or issued to the executrices/trustees and stock books or ledgers of all the family corporations. PETITIONER'S INABILITY TO MAKE A MORE SPECIFIC AND PARTICULARIZED DEMAND 50. Petitioner herein is unable to more specifically or particularly describe the requested/demanded documents because all of such are in the exclusive possession of or are subject to the control of the executrices/trustees. PETITIONER HOLDS A PROPERTY RIGHT IN REQUESTED/DEMANDED DOCUMENTS 9 1194 51. Petitioner herein, as a beneficiary under his father's will, holds an undivided beneficial and equitable ownership in the requested/demanded documents as a tenant in common with his three sisters. PETITIONER PETITIONS TO ASSERT HIS PROPERTY RIGHTS AND IS NOT MAKING A MOTION FOR DISCOVERY PURSUANT TO ANY CURRENT LITIGATION 52. Petitioner petitions for relief in vindication of his property rights in the requested/demanded documents. 53. The relief sought by petitioner is to have his said property rights vindicated by an order declaring that the said requested/demanded documents shall be delivered up or made available to him for his perusal or possible copying. 54. Petitioner does not seek the production of such documents in connection with any current litigation, rather he asserts a property right which is recognized to exist totally independent of any litigation. REASONS FOR REQUEST 55. Petitioner's reasons for making such request/demand are legally irrelevant, he having a clear legal and equitable right to do so. Nevertheless, petitioner flatly states that he is acting in good faith and solely desires to exercise his right in order to protect his and his chi ldren 's interest in the estate and trusts. 56. Information about the administration of this estate has been sparse from the beginning as is clearly evidenced by the request for the "family meeting" in Philadelphia in the summer of 1986 at the offices of Morgan, Lewis & Bockius as has been testified to numerous times in other related litigation in front of your Honor. 57. Information about the administration of this estate has continued to be sparse as is evidenced by the fact that no accounting even partial, had been filed for over five (5) years 10 1195 from the date of Robert M. Mumma's death. 58. It was only after a formal petition to your Honorable Court for the compelling of accountings, that the executrices/trustees agreed to file any accounting. 59. Rulings in equity cases show that petitioner has an equitable duty to peruse documents and take other steps which might be necessary to protect his property interests as a beneficiary under his father's will. WHEREFORE, Petitioner respectfully requests this Honorable Court to award a citation directed to Barbara McK. Mumma, and Lisa M. Morgan, co-executrices under the Will of Robert M. Mumma, deceased, and to the said Barbara McK.Mumma and Lisa M. Morgan, co-trustees under articles SEVENTH and EIGHTH of said will, to appear and show cause if any there be, why they should not be required to either deliver up or to make available at a convenient place and time for perusal by Robert M. Mumma, II, his attorneys, agents, or representatives for possible copying the following certain items: 1. All legal opinion and/or advice letters or memos by Morgan, Lewis & Bockius or other attorneys or accountants or other advisers or experts rendered to or made available to the executrices or trustees in connection with the estate or trusts established under the will of the late Robert M. Mumma. This request and demand to include any notes made by or for the executrices or trustees pertaining to legal opinions or advice and extends to not only those said letters, notes and memos which are in the possession and control of the executrices and trustees but also to all such said letters, memos and notes which the executrices or trustees have within their authority and power to request that delivery be made to them or to request that the same be made available to them. His request and demand is to include but not to be limited to the following more specific requests and demands. 2. All opinion and/or advice letters, memos, notes, and the like regarding valuation of assets of the estate or trusts rendered by any attorneys or accountants or other advisers or 11 1196 experts. 3. All opinion and/or advice letters, memos, notes and the like regarding the prudence or advisability of any sale or any transfer of any assets of the estate or trusts rendered by any attor neys or accountants or other advisers or experts. 4. All opinion and/or advice letters, memos, notes and the like regarding the funding of the trusts under the will of Robert M. Mumma and the advisability of the withdrawal of any assets or any specific assets from the trusts rendered by any attorneys or accountants or other adv isers or ex perts. 5. All opinion and/or advice letters, memos, notes and the like regarding the legitimacy of any charges and/or fees made to the estate or trusts by the executrices and trustees or either of them for services rendered in their fiduciary capacities or as officers, directors or employees of any corporations, tenancies in common, partnerships, joint ventures or any other form of association or entity where they have an interest in the same by virtue of their holdings in the estate or trusts. 6. All billings, fees, expense statements and the like rendered to the estate or the trusts by attorneys, accountants and/or any other experts or advisers and also itemized billings and time sheets to show the legitimacy of such billings, fees, expense statements and the like 12 1197 which the executrices and trustees have it within their rights and power to request whether such requests have been made previous to this request and demand or not. 7. Copies of any and all fire and/or casualty insurance policies and the like, and any riders, endorsements, itemized lists, and the like thereto which deal with personal property which was at any time part of the estate or trusts or which still is part of the estate or trusts. 8. Permit access to and inspection of all ORIGINAL stock certificates held by or issued to the executrices/trustees and stock books or ledgers of all the family corporations. Respectfully submitted, Charles E. Shields, III Commonwealth National Bank Bldg. 2 West Main Street Mechanicsburg, PA 17055 (717) 766-0209 I.D.#38513 William C. Costopoulos 831 Mar ket Street Lemoyne, PA 17043 (717) 761-2121 By ~ [: )La/[) Attorneys for Petitioner, Robert M. Mumma, II 13 1198 IN RE: ESTATE OF ROBERT M. MUMMA, late of Cumberland County, Pennsylvania : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-86-398 ORPHANS' COURT DIVISION . . AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF -D(}..(,P~ ) ) ) SS: Before me, the undersigned authority, personally appeared ROBERT M. MUMMA, II, who, being first duly sworn according to law, deposes and says that all of the averments set forth in the foregoing Petition are true and correct according to the best of his knowledge or as is informed and believes. 11)JRo~~~/ Sworn to and subscribed befor():e ~ ~day of ~~ , 1991. ~}H~~ a (};~ Nota Publ c '. . NOTARIAL SEA:--'- KIMBE"u A. CROSTlEY ,~. . '. . City of H " . I~",,<J.' '-wbIJC Me, acnsburg, Dauphin Co Y ommlsslon Expires Jan. 4. 1993 1199 , , CERTIFICATE OF SERVICE I, Charles E. Shields, III, certify that a copy of the attached PETITION OF ROBERT M. MUMMA, II, SON OF DECEDENT AND BENEFICIARY UNDER DECEDENT'S WILL TO COMPEL COMPLIANCE WITH REQUEST/DEMAND FOR CERTAIN DOCUMENTS was served by first class mail on '6 ~. ~ /?'/,- upon the following: cJ(!t-. / ~ /71/ Richard W. Stevenson, Esquire cs II) --. McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166, for Barbara M. McClure 129 S. Lewisberry Road Mechanicsburg, PA 17055 John Hardin Young, Esquire Porter, Wright, Morris & Arthur 1233 20th Street, N.W. Washington, D.C. 20036-2395, for Linda M. Roth 5104 Wessling Lane Bethesda, MD 20814 Attorney General Commonwealth of Pennsylvania Strawberry Square Harrisburg, PA 17120 Thomas M. Kittredge, Esquire Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103-6993, for Barbara McK. Mumma and Lisa M. Morgan William F. Martson, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013, for Barbara McK. Mumma and Lisa M. Morgan (Courtesy Copy) Robert M. Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 (!t~J r: ~-nr Chafles E. Shields, III 1200 As portrayed by figures from PA I nher tax return filed 7/20/87 (figures as existing on d.o.d. 4/12/86) Do v (Flagship of the Mumma Family Enterprises) Rental, Real Estate (Inc. 6/21/21 - PAl Total 712 Shares 700 est Robt Mumma 3 each child Total 8,680 Shares t , I t ! i * PA Supply Co. RMM, II Sisters, ea. Widow 7,241 (83:1:) 334 333 106 RMM, II Vice President Director Quarry, crushed stone Total Com. 2,117 8:1: p.f. 267 10:1: pJ. 1,100 Total 100 Shares Kim Co. SO Kim Co. 867 x 1,100 Hempt Trustee SO RMM, II 314 x x Barbara 312 103 x *(OPERATING COMPANIES) Linda 312 61 x Lisa 312 103 x Mfg, concrete blocks, ready-mix concrete Total 5,000 Shares Pennsy Supply 5,000 (100%) pp B ldg materials, concrete, asphalt Total 2,500 Shares 999 2,500 (100%) RMM,1I Vice President Director -------------** Rental, real estate development Total 700,000 Shares Pennsylvania Supply Co. 100,000 Shares Each child 1 SO ,000 (T hese two were later merged.) Land deve lopment and renta I T ota I I 0 Shares Middle Park Inc. 10 ( 100%) **(REAL ESTATE COMPANIES) According to Robt Mumma's will-- each child was to receive an eOllal 1/4 share of Penna Suoplv and eoual shares in the reel estate Rental, equipt, real estate T ota 1 500 Shares Pennsy Supp Iy 500 ( 100 %) ( Rental, PUC hauling (RMM,1I - V.P.) Total 1 ,000 Shares Pennsy Supply 1,000 ( 100:1:) ~ o N ~ .:: ~ ~ o - - c.$ I .' . .' LAST WILL AND TESTAMENT OF ROBERT M. MUMMA I, ROBERT M. M~~, of the Borough of Wormleysburg, County of Cumberland and Commonwealth of Pennsylvania, being of sound and dis- posing mind and memory, and not acting under influence of any person whomsoever, do make, publish and declare this instrument to be my Last Will and Testament, in manner and form following. FIRSr: I hereby expressly revoke all Wills, Codicils and testa- mentary writings of whatsoever ~ind and nature heretofore made by me. SECOND: I hereby direct my Executors, hereinafter named, to pay all my just debts, expenses of administration, funeral expenses, expenses of erecting a suitable monument for my grave and the cost of perpetual care thereof out of my estate, as soon as is practicable after my decease. THIRD: I direct that all estate, inheritance, transfer, legacy or succession taxes, or death duties, which may be assessed of imposed as a result of my death or with respect to my estate, or any part thereof, wheresoever situated, whether or not passing under this my Last Will and Testament, including the taxable value of all policies of insurance on my life and of all transfers, powers, rights, or interests includible in my estate for the purpose of such taxes and duties, shall be paid out of my general estate as an expense of administration and without apportionment, and shall not be prorated or charged against any of the gifts in this Will or against any property not passing under this Will. In the absolute discretion of my Executors, hereinafter named, they may pay such taxes immediately or may postpone the payment of the taxes on future or remainder interests until the time possession accrues to the beneficiary or beneficiaries named herein. My Executors may, in their discretion, arrange for extension of time for the payment of said estate and inheritance taxes, and any interest and/or penalty incurred on any such taxes, whether or not resulting from such extensions or post- ponements, shall be borne by my estate as an expense of administration. FOURTH: I give and bequeath unto my son, ROBERT M. NUH1~, II, the Gorgas Grandfather's Clock, which I consider owned by me and ,~hich has been in the Mumma family for many years. I further give and bequeath unto my son, ROBERT M. M~mA, II, all of my jewelry, owned by me at the time of my death. FIFTH: I give and bequeath unto my daughter, LISA M. MUMMA, my 380SL Hercedes automobile. S-L~ 1202 ~ , SIXTH: I give and bequeath unto my wife, BARBARA McK. MUMMA, all of my automobiles (except as to the one hereinabove disposed of) and other articles of personal use. Should my said wife predecease me, all of said personal effects as above described shall be distribut- ed among my children living at the time of my decease in such manner as they shall mutually determine. If my said living children are un- able to agree to the distribution thereof, my Executors shall determine the items to be distributed and to whom distributed and their determina- tion shall be final and conclusive upon my said children. SEVENTH: If my wife, BARBARA McK. MUMMA, survives me, I give and bequeath to the trustees hereinafter named, an amount equal to fifty (50%) percent of my total gross estate as finally determined for Federal Estate Tax purposes, taking into account and including therein, for computation purposes, my undivided interest in the value of all my interests in property which pass or have passed to my wife under other provisions of this Will or otherwise than under this Will, but only to the extent that such interests are, for the purpose of the Federal Estate Tax, included in determining my gross estate and allowed as a marital deduction. In funding this Trust, I authorize my Executors to use cash or other property or a combination thereof, and I direct that any such other property so used shall, for the purpose of funding the trust, be valued as of the date of its distribution. In computing the amount of this bequest, I direct that the values and amounts as finally determined for Federal Estate Tax purposes shall control. Notwithstanding anything to the contrary contained in this Will, I direct that (a) the Trust shall not be funded with any property or the proceeds of any property which (1) would not qualify for the marital deduction allowable in determining the Federal Estate Tax on my Estate or (2) is includible in my gross estate for Federal Estate Tax purposes and also subject by reason of my death to any inheritance tax, transfer tax, estate tax or other death duty in any foreign country or political subdivision thereof, except that the property described in this clause may be allocated to the Trust to the extent that other property of my Estate, which does qualify for the marital deduction, is not sufficient to fund the Trust in full: (b) that the trustee shall not retain in the Trust beyond a reasonable time, any property which may at any time be or become unproductive nor shall they acquire unproductive prcperty as an investment to be held in the Trust: and (c) that none of the powers granted to my Executors and trustees by this Will shall be exer- cised in such manner as to disqualify the Trust or any part thereof from the marital deduction allowable to determine the Federal Estate Tax on my Estate, except as may be hereinafter provided. I direct that the trustees hold said amount, In Trust Nevertheless, to manage, invest and reinvest the same, to collect the income and to pay over or apply the net income to, or for, the benefit of my wife, - 2 - v 1203 ~'.- --- ""...- '. BARBARA McK. MUMMA, at least yearly. My individual trustee, other than my wife, solely and within her discretion alone, is authorized to distribute to and for the benefit of my wife, BARBARA MeR. MUMMA, in addition to the income hereinabove specified, so much of the principal of this Trust as she may deem necessary or advisable to reasonably provide for her support, health, welfare, maintenance or comfort, to maintain for her a standard of living which she has during our married life enjoyed, taking into account, however, my wife's in- come from other sources including, but not limited to, all income from trusts, estates and business interests, as well as available principal assets. Notwithstanding the limited invasion right of trust principal by my one trustee for the use and benefit of my wife, which requires a deficiency in other available funds, I give unto my wife a right, which shall not be cumulative, to request annually in writing a dis- tribution to her by the trustees from the principal of this Trust of up to Five Thousand ($5000.00) Dollars or up to five (5%) percent of the then principal of this Trust, whichever shall be the greater, and the trustees, upon receipt of such writing, shall make payment thereof to my wife during the calendar year in which said writing was received. The annual request by my wife is not mandatory, but shall be made, if desired, only by herself individually. I hereby authorize my Executors, in their sole discretion, to elect that any part or all of any amount passing under this article of my Last Will and Testament, to my wife, BARBARA McK. MUMMA, in the event she survives me, be treated as qualifying terminal interest property for the purpose of qualifying for the marital deduction allow- able in determining the Federal Estate Tax on my Estate. Without limit- ing the discretion contained in this foregoing sentence, it is my ex- prectation that my Executor.1will make said election with respect to all of any such amount, unless the timing of my spouse's death and mine and the c~ation of the combined death duties of our two (2) estates renders such an election inappropriate. Upon the death of my said wife, the principal of this Trust, as it is then constituted, shall be paid over by my surviving trustee unto my children, ROBERT M. MUMMA, II, BARBARA M. McCLURE, LINDA M. ROTH and LISA M. MUMMA, free of this Trust, share and share alike, per stirpes and not per capita. EIGHTH: All the rest, residue and remainder of my property and estate, both real and personal of whatsoever kind and wheresoever situate, of which I shall die seized or possessed, and of which I shall be en- titled to dispose of at the time of my death (my "residuary estate"), I give, devise and bequeath unto the trustees hereinafter named, In Trust, Nevertheless, to hold, manage, invest and reinvest in the same, to collect the income and to pay over or apply the net income to or for the benefit - 3 - v 1.204 ~iV;..;:. - .- .", .~_. ~ of my wife, BARBARA McK. MUMMA, at least yearly. My individual trustee, other than my wife, soley and within her discretion alone, is authorized to distribute to and for the benefit of my wife, BARBARA McK. MUMMA, in addition to the income hereinabove specified, so much of the principal of this Trust as she may deem necessary or advisable to reasonably provide for her support, health, welfare, maintenance or comfort, to maintain for her a standard of living which she has during our married life enjoyed, taking into account, however, my wife's income from other sources including, but not limit- ed to, all income from trusts,estates and business interests, as well as available principal assets. Upon the death of my said wife, the principal of this trust, as it is then constituted, or, if my said wife does not survive me, upon my death, my residuary estate, shall be paid over by my surviving trustee or by my successor Executor, as the case may be, unto my children, ROBERT M. MUMMA, II, BARBARA M. McCLURE, LINDA M. ROTH and LISA M. MUMMA, share and share alike, per stirpes and not per capita. In the event any of my said children shall predecease me leaving issue (including adopted children) surviving, then and in that event their share above provided shall pass to such issue. If, however, any of my children shall predecease me without leaving issue, (including adopted children) surviving, then and in that event their respective shares above provided shall lapse and their share shall be equally divided among my surviving children. In the event the Trusts established under Items Seventh and Eighth of this my Last Will and Testament, and my residuary estate established under Item Eighth hereof, have not been finally distributed as herein provided, and there are no beneficiaries to receive the same in accordance therewith, the trust funds held by my trustees, and my residuary estate, as herein named, upon the occurence of said contingency, shall be paid over, free of all Trusts, to the POLYCLINIC MEDICAL CENTER of Harrisburg, Pennsylvania, said moneys and property when so paid to the POLYCLINIC MEDICAL CENTER, both the principal and the income received therefrom shall from time to time be used by said Medical Center for capital im- provements to the physical structure and plant of said Medical Center, and for moveable fixtures and equipment of a permanent nature which can be used for patient treatment, care and comfort, but no part of such money and property, ei ther principal or income, shall be used or applied to the current expense in the operation of said Medical Center. As used in this Will and the Trusts hereunder. the masculine pro- noun shall include the feminine, and the singular shall include the plural. The Trustees shall be vested with reasonable discretionary powers and in all matters not otherwise herein specifically provided, they shall exercise their sound judgment and discretion in the performance of their duties hereunder. They shall not be liable for any error of judgment provided that such error is honestly made. - 4 - 1205 v 1 .Ii:... ....~ ..--~-v- - --- NINTH: I give and grant unto my trustees, and the survivor thereof, and their successor or successors, the following powers, which shall be construed broadly and which may be exercised by them in either or both capacities, as in their discretion they deem advisable, in addition to and not in limitation of their common law and statutory powers: (1) To allot, assign, care for, collect, contract with re- spect to, convey, convert, deal with, dispose of, enter into, exchange, hold, improve, invest, lease, manage, mortgage, grant and exercise options with respect to, take possession of, pledge, receive, release, sell, sue for, and in general do any and every act and thing and to enter into and carry out any and every agreement with respect to the property included in any trust created in this Will which they could if they were the absolute owners thereof, without being limited in any way by the specific grants of power hereinafter made. (2) To retain for such time as in their judgment may seem advisable all or any part of my property or assets which at any time shall constitute a part of the trusts herein provided for. (3) To sell or exchange, either privately or at public sale and without prior approval of any court, at such time or times and at such price or prices and on such terms and conditions as the trustees may consider advisable, all or any part of the trust property, real, personal or mixed, and to execute, verify, acknowledge and deliver all deeds,bills of sale, or other documents which may be necessary or proper in the exercise of such powers without liablity on the purchaser or purchasers to look to the application of the purchase price. (4) To manage any real property held by them in such manner as they may determine, including authority to alter, repair, maintain or improve such property as hereinafter set forth, to mortgage such property on such amount, on such conditions and at such rates of interest as they shall deem advisable; to abandon such property, to adjust boundries, to erect or demolish buildings thereon, to convert for a different use, to dedicate for public use without compensation, to grant easements and rights-of-ways, to waive payment for property taken by right of eminent domain and to claim and negotiate for payment for property, to enter into party-wall contracts, to protect out of the general funds of the Trusts created herein, to insure or perfect title and to charge the cost of any action taken with regard to any such property to principal or income as they may determine. To make all ordinary repairs to any real estate held by them and such extraordinary repairs, alterations or improvements against the principal of the Trusts herein created of which the property being repaired, altered or im- proved forms a part. _ 5 _ v 1206 . -,. -;S,<w, '. .~.............~.., (5) To lease any real estate subject to the Trust herein created f')r such terms or terms, and for such rental or rentals, and under such covenants and agreements as may, in the discretion of the trustees, be considered for the best interest of the trust estate. The tru~tees shall recognize existing leases, but still have the power to agree to modification of, or amendment to, the telns of existing leases or to extensions or rene'vals thereof. The trustees shall have authority to acquire by purchase, gift or otherwise, and to resell, receive, hold, manage end control real estate, and any other interest therein, subject to the Trusts, and do all things necessary or proper in the performance 'of such functions. (6) To invest, and from time to time to reinvest, to acquire, and to retain temporarily or permanently the trust estates received or held by them in cash or in kind or real or personal property, foreign or domestic, including by way of illustration, but not by way of limita- tion, common or preferred stocks, investment bonds, mortgages, debentures, notes, unsecured obligations, wasting assets, or investments which are unproductive, overproductive or underproductive as in their discretion they may deem advisable, and the total trust funds or the relation it may bear to the type or character of other investments in the trust estates, or to the effect in the trust estates and they shall not be restricted in their choice under any present or future applicable law, it being my incention to give my trustees power to act in such manner as they will believe to be for the best interest of the Trusts created herein. (1) To pay income tax on gains from the sale or other con- version of capital assets out of the ,corpus thereof. (8) To amortize, accelerate pa)~ent of, reduce, extend, modify, settle or liquidate any lien, encumbrance, mortgage, or other charge against any real estate or other property which may be subject to these Trusts. The trustees shall specifically keep and perform all of the covenants, terms and conditions of any existing mortgage or mortgages upon said real estate, on the part of the mortgagor required to be kept and per::ormed and shall have full power and authority with the consent 0:: the mortgagee or mortgagees, to refund, replace, extend or otherwise ar.lend the same, and to anticipate and accelerate any periodical paYIOlents therein required. (9) To subscribe for stock allotments and to exercise all ri!;hts and privileges pertaining to securities which are available to the owner thereof. (10) To receive or r.1ake distribution of any trust herein cre2ted, either in IT,onc,y or in kind, or partly in money and partly in kind. The judt,meilt of the trustees as to I,hat shall constitute on equitable distribution or apportionment shall be binding and conclusive UpO:1 the beneficiaries hereof. Nothing h",rein contained, hOHevC'r, shall eouower the trustees to ma~e distribution before the time or times sp~clfied herein. 1207 V _ 6 _ ~ -" h.. ~-:~Ml"-."'''''~ '.<'-"_..".".,~.-.. -~r'" - ", (11) To pay, collect, compromise, sue for or contract any claim or other matter, directly or indirectly, affecting the Trusts. (12) To use income and/or principal to maintain in force any policies of life insurance which I may own on the life or lives of other persons or to receive in gift or purchase or maintaill pre- viously existing insurance or annuity contracts for the benefit of any beneficiury, primary or contingent, if the trustees determine that the best intcrcst of my family would be served by purchasing said contracts or by continuing such insurance in force, and to ex~rcisc all the powers given to the owner of such policies, (13) To employ counsel, auditors, custodians, accountants, appraisers, engineers, aud other persons, professional or otherwise, as ~GY be necessary for the proper administration of the Trusts, and to pay their compensation for trust funds. (14) To borrow money and as security thereof, to execute bonds and mortgages containing warrants of attorney, to confess judgment and to pledge per~onal property. (15) To incorporate any unincorporated business ~eceived from my estate. (16) To carryon and conduct any business enterprise in which I may be engaged at my death. (17) To hold, invest and account for the separate Trusts in one or more consolidated funds, in whole or in part, as they may determine. As to each consolidated fund, the division into the various shares comprising such fund need be made only on the trustees' books of account, in which each Trust shall be alloted its proportion- ate part of the principal and income of the fund and charged with its proportionate part of the expenses thereof. No such holding shall, however, defer the vesting in possession of any estate created herein. (18) As to each Trust created herein, to exercise all the powers granted and all the duties imposed herein until such time after the termination of that Trust as the property included in that Trust has been fully distributed, and to do all other acts which, in their judgment, may be necessary or appropriate for the proper or advantageous management, investment or disposition of any property included in any Trust created herein. TENTH: The rights, titles, benefits, interests and estates of any beneficiary hereunder, including beneficiaries under the Trusts herein created shall not be subject to the rights or claims of his or her - 7 - ~ 1208 , , ~ - . . -.r... ~...a. ~~.'....... <".-..-.- 111M ~n si~if~--"'''h''.' .. ........ --.". . _ ~ 'i_ _-L-.......,...__ -.."",,, ~. creditors nor subject nor liable to any process of law or court, nor subject to an assignment or transfer, voluntary or involuntary, by a beneficiary hereof to another, and all of the income, principal .or other benefits from or under any Trust herein created, or this Estate, shall be payable, and deliverable only, wholly exclusively and personally to the designated beneficiaries hereunder at the time the designated beneficiaries are entitled to take the same under the terms of this instrument. ELEVENTH: I hereby direct that my Executors, trustees, or any successor, as named by me herein, shall not be required to give bond, or other security, required by law or otherwise, for the faithful performance of their duties, whether as Executor or as successor Executor or trustee. TWELFTH: I direct that all dividends upon shares of stock at any time constituting part of my estate or any Trust hereby established payable in stock of the corporation declaring the same shall be deemed to be corpus, except that such stock dividends paid regularly (i.e. at regular or substantially regular intervals) out of current earnings may, in the discretion of my Executors or trustees, be deemed to be income any my Executor and trustees shall have full power and authority to determine whether any such dividends are so paid regularly out of current earnings. All cash dividends, irrespective whether the same are of the kind sometime described as ordinary dividends or of the kind sometimes described as "extraordinary dividends," excepting liquidating dividends, shall be deemed to be income, and my Executors and trustees shall also have full power and authority to determine whether any divi- dneds upon shares of stock in a wasting-asset corporation, and whether any dividends of distributions in the stock of a corporation other than the one declaring the same, or other property, shall be treated as corpus or income or in part corpus and in part income. Any election or deter- mination pursuant to this paragraph may be made by my Executors or trustees, irrespective as to whether the dividend in question shall in fact constitute corpus or income provided, however, that nothing in this paragraph contained shall be deemed to authorize my Executors or trustees to retain any dividends or any portions thereof, insofar as such retention would result in an illegal accumulation of income. In the event that rights to subscribe to securities or other property shall accrue upon any of the securities or other property, my Executors and trustees are authorized, in their respective sole discretion, to exer- cise such rights or to sell the same, and insofar as may be permitted by law, the proceeds of such sale, or in the event of the exercise there- of, the value thereof at the time of such exercise shall be and become a part of the corpus. v- - 8 - 1.209 , ' .. __~'.tl.IoI.1lfl"~""''"''''~''"'''''''''''''''~''''"'''''''' $:'11 ,.._...,..;"";,.\;.~,.. ..',o,"''""'.........".~"... ., - -_..,,,,.,~, . . THIRTEENTH: Notwithstanding the powers herein otherwise given, I direct that my stock in privately held corporations, supervised and administered by me as the Executive or operating officer prior to my decease or my stock in privately held.corporations which otherwise is owned by me at my decease be not sold unless all of my trustees, and particularly my individual trustee or trustees, shall agree in writing that such stock shall be sold. It is my desire that if expedient and possible, the businesses which I have personally directed during my lifetime and of which I have had an interest be continued for the bene- fit of and under the management and control of my immediate family. " FOURTEENTH: I hereby give unto my Executrix, or her successors, hereinabove named, the fullest power and authority in all matters or questions pertaining to the administration of my estate, executing the provisions of this my Last Will and Testament, including, but not by way of limitation, the power and authority to determine all doubtful questions which may arise in the construction of this my Last Will and Testament and the trust hereunder; I further hereby authorize and em- power my Executrix, or her successors, pending settlement of my estate, to sell, convey, mortgage, lease, exchange, encumber or otherwise dispose of any and all of the property, real, personal or mixed, at any time be- longing to my estate, either at public or private sale, without prior approval of any court, and at such times and for such price or prices and in any such case upon such terms as she may think best in her dis- cretion, and I authorize and empower my said Executrix to execute, acknowledge and deliver to the purchasers, grantees, mortgagees, vendees, assignees or other persons,such oontracts, deeds, mortgages, bills of sale, and all other instruments of writing necessary or proper without obligation upon the latter to see to the proper application of the proceeds. She shall also have the power to compromise or otherwise to settle or adjust any and all claims, charges, debts and demands whatso- ever against or in favor of my estate, as fully as I could do if living. She shall further be empowered to carryon and conduct any business enterprise which I may be engaged at my death, to retain any assets, including stocks or securities which I may own at the time of my death, pending settlement of my estate, without regard as to whether or not such assets or securities are legal investments for fiduciaries, and may make distribution in kind to my trustees. Pending settlement of my estate, she shall also have the authority in her discretion to convert, sell, exchange or dispose of such assets and securities either for cash or for terms satisfactory to her and to acquire other assets without limitation to securities or investments as may be declared legal for in- vestment for fiduciaries. She shall further be empowered to borrow money, and to pledge assets of my Estate as security therefor, for the purpose of paying taxes which may be levied upon or payable by my estate, in accordance with this Hill in the event that funds in the hands of my Executrix, or her successors, shall be insufficient to pay such taxes, and if, in the opinion of my Executrix, or her successors, it appears that conversion of securities and other assets, real and personsl, would then be made at a sacrifice. - 9 - 1210 ~ ~. .,.'f.'.~~ . .,-'];r~.~;<,,-': .-~ -"-f .......'...,_.. ..:-..,..~_...., ~,~......" -"'-_.~ ^ " -.."',.,,,.. . /~.~:-~ .' FIFTEENTH: I do hereby nominate, constitute and appoint my wife, BARBARA McK. MUMMA and my daughter, LISA M. MUMMA, or the survivor of them, to be the co-Executrixes of this my Last Will and Testament. In the event that both my wife, BARBARA McK. MUMMA, and my daughter, LISA M. MUMMA, should both renounce this office, refuse this appointment, predecease me or for any other reason be unable to serve in this capacity, then and in that event, I direct that the DAUPHIN DEPOSIT BANK AND TRUST COMPANY, of Harrisburg, Penn- sylvania, shall be the successor Executor of this my Last Will and Testament and as such Executor shall have all the rights, privileges, obligations and duties conferred and created by reason of this appoint- ment. In addition, as established in paragraphs Seventh and Eighth of this my Last Will and Testament, I nominate, constitute and appoint my wife, BARBARA McK. MUMMA, and my daughter, LISA M. MUMMA, to be the co-Trustees of the Trusts established by me in said paragraphs Seventh and Eighth, to administer said Trusts as herein directed. In the event that my daughter, LISA M. MUMMA, should renounce this office as Trustee, refuse this appointment, predecease me or for any other reason be unable to serve in the capacity as Trustee, then and in that event, I direct that my son, ROBERT M. MUMMA, II, shall be the succes- sor co-Trustee to serve as such, with my wife, BARBARA McK. MUMMA, in b~th of the Trusts herein created. Upon the failure, for any reason of my son to serve in that capacity, the DAUPHIN DEPOSIT BANK AND TRUST COMPANY is hereby constituted and appointed to serve as the successor co-Trustee, with my wife, BARBARA McK. MUMMA, in both of the Trusts herein created. ~N WITNESS WHEREOF, I have hereunto set my hand and seal this ~ day of May, A.D., 1982, at the end hereof. ~A_ --?\t.')vH....~.~SEAL) ~t M. Mumma SIGNED, SEALED, PUBLISHED AND DECLARED by the above-named Testator, ROBERT M. MUMMA, as and for his Last Will and Testament, in the presence of us, who at his request', in his presence and in the presence of each other, all being present at the same time, have hereunto set our hands as w~/esses: . ,) -''1.' ....-/-~'" .~" ,,^ /, ;" .... Name f 1;'~ Nall/;.~ / /' /{ (II/~( /,X'::'d\ Name (/...../.. ;.: Address n 1fI/t1~1l(j, fA Ad;&'S s ./ ill.' I:t,1 Address /. . .. '~11 _}. f..,,_.. . . .t\.WillillJ~I-" '. FIRST CODICIL TO LAST WILL AND TESTAMENT OF ROBERT M. MUMMA KNOW ALL MEN BY THESE PRESENTS, that, whereas, I, the undersigned, ROBERT M. MUMMA, of the Borough of Wormleysburg, County of Cumberland and Commonwealth of Pennsylvania, did on the 19th day of May, 1982, make, execute, publish and declare my Last Will and Testament in writing, bearing date the day and year aforesaid; and WHEREAS, I now desire to make certain changes therein and modifications thereof and additions thereto. NOW, THEREFORE, I, ROBERT M. MUMMA, being of sound mind and memory, do make, publish and declare this my First Codicil -to my said Last Will and Testament in manner following, that is to say: I hereby revoke, in its entirety, paragraph Fifteenth of my Last Will and Testament of May 19, 1982, and substitute in i~ place the following paragraph numbered Fifteenth as if said paragraph had been fully set forth therein: FIFTEENTH: I do hereby nominate, constitute and appoint my wife, BARBARA McK. MUMMA, and my daughter, LISA M. MUMMA, now LISA M. MORGAN, to be the co-Executrices of this my Last Will and Testa- ment. In the event that my wife, BARBARA McK. MUMMA, or my daughter, LISA M. MORGAN, should renounce this office, refuse this appointment, predecease me, or for any other reason be unable to serve in this capacity, then and in that event, I direct that my daughter, BARBARA M. McCLURE, shall be the successor co-Executrix of this my Last Will and Testament, and as such co-Executrix shall have all of the rights, duties, privileges and obligations conferred and created by reason of this appointment. I further direct that in the event of the inability, for any reason whatsoever, for any two of the above-named co-Executrices (original or successor) to serve in such capacity, the third, the survivor of the three, shall serve as a sole Executrix of this my Last Will and Testament, however, in the event that all three ~ 1212 , ,~.; .' ..' >O~_ "-, ..... _..~..._'-i'''_' ....-.-.-,....- ~ l. ., _"~~"';"~"""''''-'~.'''''''^''''~''''''iJ:"~'-'''.~-' ~J. --- -,. '-'"," _.' ,~, ,. n. ,~~ ~,-~,,_.. . '. ": of my individual co-Executrices shall be for any reason unable to serve, then and in that event, I direct that DAUPHIN DEPOSIT BANK AND TRUST COMPANY, of Harrisburg, Pennsylvania, shall be the successor Executor of this my Last Will and Testament and as such successor Executor, shall have all of the rights, duties, privileges, obligations and duties conferred by reason of this appointment. In addition, as to the trusts established in paragraphs Seventh and Eighth of this my Last Will and Testament, I do now nominate, constitute and appoint my wife, BARBARA McK. MUMMA, and my daughter LISA M. MUMMA, now LISA M. MORGAN, to be the co-Trustees of both of the trusts established by me in paragraphs Seventh and Eighth, to administer said trusts as directed by my Last Will and Testament. In the event my daughter, LISA M. MORGAN, should renounce this office as Trustee, re- fuse this appointment, predecease me, or for any other reason is unable to serve in the capacity of Trustee, then and in that event, I direct that my daughter, BARBARA M. McCLURE, shall be the successor co-Trustee to serve as co-Trustee with my wife, BARBARA McK. MUMMA, in both of the trusts herein created. Upon the failure, for any reason of my daugher, BARBARA M. McCLURE, to serve in that capacity, the DAUPHIN DE- POSIT BANK AND TRUST COMPANY, of Harrisburg, Pennsyl- vania, is hereby constituted and appointed to serve a~ successor co-Trustee with my wife, BARBARA McK. MUMMA, in both of the trusts herein created. '. ..... AND, I do hereby ratify and confirm all and singular the provisions of my said Last Will and Testament dated May 19, 1982, except as changed and modified by this my First Codicil thereto. , ~IN WITNESS WHEREOF, I have hereunto set my hand and seal this _1 day of October, 1984. Qn_~~?t<.tc..-... - '- -(SEAL) ~t M. Mumma 1213 SIGNED, SEALED, FUBLU;HED AND DECLARED by the above-named Testator, ROBERT M. MUHHA. as and for his First Codicil to his Last Will and Testame:1t, dated May 19, 1984, which Codicil con- sists of two (2) pages in addition to this page, in the presence of us, who at his request, in his presence and in the presence of each other, all being present at the same time, have hereunto set our hands as witr.esses: du.-_.~:,.~_ Name ~~ .. . . . E. "pallll7 V ame " . '.,. ~",'''', 4~L:-~' If. Address 'JJI.<,/,L, , ~ . :~A. A ress ~ \ . . , ~ ,0 . March 19, 1991 william F. Martson, Esq. Martson, Deardorff, Wms. & otto 10 E. High street Carlisle, PA 17013 Thomas M. Kittredge, Esq. Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103 Dear Bill: As you are no doubt aware, I am representing Robert M. Mumma II with regard to some of his litigation, including several matters in the Cumberland County Orphans' Court. In connection with Robert M. Mumma II's rights as a beneficiary under his father's will, we are requesting and hereby making demand that certain items either be delivered up for Robert M. Mumma II's perusal and possible copying or that they be made available at a convenient place and time for Robert M. Mumma II's perusal and possible copying. said certain items include: 1. All legal opinion and/or advice letters or memos by Morgan, Lewis & Bockius or other attorneys or accountants or other advisers or experts rendered to or made available to the executrices or trustees in connection with the estate or trusts established under the will of the late Robert M. Mumma. This request and demand is to include any notes made by or for the executrices or trustees pertaining to legal opinions or advice and extends to not only those said letters, notes and memos which are in the possession and control of the executrices and trustees but also to all such said letters, memos and notes which the executrices or trustees have within their authority and power to request delivery be made to them or to request that the same be made available to them. This request and demand is to include but not to be limited to the following more specific requests and demands. 1215 Exhibit B . - , . : william F. Martson, Esq. Thomas M. Kittredge, Esq. March 19, 1991 Page 3 assorted items will force us to proceed to legal action to enforce our "demand." Thank you for your kind attention to this matter. Very truly yours, Charles E. Shields, III WMC:ec cc. William C. Costopoulos, Esq. John Hardin Young, Esq. for Linda M. Roth Richard w. Stevenson, Esq. for Barbara M. McClure Robert M. Mumma II :l217 . . . .. MORGAN, LEWIS 0. BOCKIUS PHILADELPHIA COUNSELORS AT LAW 2000 ONE LOGAN S~UARE PHILAOELPHIA, PENNSYLVANIA 19103~6993 WASHINGTON Los ANGELES MIAMI LONOON FRAN KFURT F...,,,, (215) 963-5299 NEW YORK HARRISBURG SAN DIEGO BRUSSELS TELEPHONE: (2151963-5000 TOKYO THOMAS M. KITTREDGE DIAL DIRECT(215)963-5636 April 16, 1991 Lnarles E. Shields, III, Esq. Commonwealth National Bank Building 2 West Main Street Mechanicsburg, PA 17055 Re: Estate of Robert M. Mumma. Deceased Dear Mr. Shields: Your request/demand letter of March 19 recites that it is made in connection .,'ith Robert M. Mmrllna II's rights as a bene- ficiary under his father's will. No reference is made, however, as to any statute, rule of court or other legal basis for your request/demand, nor are we aware of any such basis. Accordingly, we shall be grateful if you will cite for us your legal authority so that we can properly advise our clients. As you probably know, the Estate comprises far-reaching and complex business interests and the documents that you have requested in many cases contain sensitive business information, or relate to ongoing litigation with your client, who is, at last count, an adverse party with our clients in six separate and dis- tinct legal actions in Cumberland County, and additional actions in Dauphin County. As an adverse party in litigation and as ~ competitor with the Estate's business interests, your client's motive in making this request/demand is a matter of concern. We think it appropriate, therefore, to ask that you set forth your client's reasons for making the request/demand, so that we can eValuate their propriety. Lastly, we realize that President Judge Sheely has determined that your clie~t's disclaimer has been revoked, but this decision lliay be altered on pending exceptions or en appeal, should Mr. Frey choose to t~ke one. A]_~o, since Mr. Frey has been ~ppointed Guardian Ad Litem fer your client's children i~ these proceedinqs, it is Mr. Frey 1'<1,0 has pO'Ner to act OIi their 1218 Exhilii t c . , , . . ... . .. . ~ April 29, 1991 Thomas M. Kittredge, Esquire Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103-6993 Re: Estate of Robert M. Mumma. deceased Dear Mr. Kittredge: Thank you for your letter of April 16, 1991 which you sent in response to my request/demand letter of March 19, 1991. As per our telephone conversation, I am responding in writing and further clarifying our position regarding Bob's rights to a production and perusal of certain documents and information. It is our position that as a beneficiary under his father's will that Bob has a right to make a demand to see these documents and that his motive is irrelevant. Nevertheless, we will inform you that Bob has no malicious intention nor ulterior motive. We do not believe the fact that he might either be a plaintiff or, we might add, a defendant, in some of the family litigation results in a loss of his rights as a beneficiary under his father's will. We note your point about the current status of the disclaimer. At the present time Bob is, by the latest, court ruling, a beneficiary under his father's will. It 1S our position that until that is somehow changed, his legal status is and will remain that of a beneficiary under his father's will. Also, we note your concerns about Bob Frey's position as guardian ad litem. Bill Costopoulos and I asked Bob Frey whether he desired to join in our Petition for an Accounting. He declined to do so and firmly stated that his reason for doing so was that the scope of his appointment did not make him a guardian of Bob's children's funds. In Bob Frey's opinion, this meant that he had no legal basis to either request an accounting on his own for the benefit of the children or to join in ours. We are not disposed to argue about this with Bob Frey at the present time. 1220 Exhibit D , .. . . ," . . Thomas M. Kittredge, Esquire April 29, 1991 Page 2 As per our phone conversation, I am unable to cite to any cases directly on point. I do believe, however, that should we need to Petition the court on this matter that we can make a sufficient argument to carry the day for us based on general rules and principles. As time has now passed rapidly since my original letter of March 19, 1991, please confer with Mesdames Mumma and Morgan and respond within ten (10) days from the date hereof as to whether they intend to make arrangements to permit Bob to have a full perusal of all the documents and information requested at convenient and reasonable times. Thank you for your kind attention to this matter. Very truly yours, Charles E. Shields, III CES:ec cc: John Hardin Young, Esq. Richard W. Stevenson, Esq. William C. Costopoulos, Esq. William F. Martson, Esq. Robert M. Frey, Esq. 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