HomeMy WebLinkAbout05-11-06
Neil W. Yahn, Esquire
Attorney J.D. No. 82278
James Smith Dietterick & Connelly, LLP
P.O. Box 650
Hershey, PA 17036
Attorneys for Petitioner
INRE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE OF LINWOOD B. PHILLIPS, JR, :
Deceased
ALICE R. PHILLIPS,
ORPHANS' COURT DIVISION
Petitioner
v.
: NO. 21-06-0122
ROBERT G. FREY
Respondent
PETITION FOR RELIEF
PARTIES
Upon information and belief, the Petitioner, ALICE R. PHILLIPS, by and through
her attorneys, JAMES, SMITH, DIETTERlCK AND CONNELLY, LLP, files this
Petition for Relief to enjoin the Respondent, ROBERT G. FREY, from disposing of any
assets of the Estate as defined below and other relief set forth below pending an adjudication
of the claims for the following reasons.
1. Petitioner, Alice R. Phillips, is an adult individual residing at 93 Encks Mill
Road, Carlisle, Pa 17013, and is the surviving spouse ofthe decedent, Linwood B. Phillips,
Jr. (the "Decedenf').
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2. Respondent, Robert G. Frey, (the "Respondenf') is a licensed attorney
practicing in the Commonwealth of Pennsylvania with Frey & Tiley, with a principal office
situated at 5 South Hanover Street, Carlisle Pennsylvania 17013.
3. The Respondent is also the son of the Decedent's business partner, Robert M.
Frey. Robert M. Frey is also an attorney with Frey & Tiley.
4. The Decedent's Last Will and Testament and Codicils have been offered by
the Respondent for probate (see attached Exhibit "A") and Letters Testamentary were issued
to the Respondent.
JURISDICTION AND VENUE
5. This action arises under the laws of the Commonwealth of Pennsylvania and
is within the subject matter jurisdiction of this Orphans' Court as per 20 Pa. C.S.A. ~711.
6. Venue in this Court is proper pursuant to Pa. R. Civ. P. 1006 and 2179.
7. The Decedent died on February 2,2006, a resident of Cumberland County,
Pennsylvania.
8. Petitioner has standing to file this Petition for Relief as a person interested in
the Estate of the Decedent as an intestate heir entitled to file her Elective Share as defined
below.
FACTS AND ALLEGATIONS
9. Petitioner is desirous of proceeding with discovery against the Respondent
and his father, Robert M. Frey, as to their involvement in the procurement of prenuptial
agreement (the "Prenuptial Agreemenf') by and between the Decedent and the Petitioner.
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10. Petitioner avers the Decedent and the Respondent secured counsel for the
Petitioner (specifically Karl E. Rominger of Rominger, Bayley, & Whare) in October of
2000 to represent her in the execution of the Prenuptial Agreement and contemporaneously,
the Respondent and his father, Robert M. Frey, represented the Decedent in the sale of
certain real property to Mr. Rominger.
11. Contemporaneous with the execution of the Prenuptial Agreement by the
Petitioner, Mr. Rominger acquired the office building (specifically 155 South Hanover
Street, Carlisle, Pennsylvania) (the "Office Complex") from the Decedent, who was also
represented by the Respondent.
12. Mr. Rominger was paid by the law office of Frey & Tiley (specifically
Stephen D. Tiley) and never met with the Petitioner prior to the execution of the Prenuptial
Agreement.
13. The Prenuptial Agreement does not disclose the mortgage or the sale of the
Office Complex, nor reference any sale.
14. Upon valid information and belief, the Decedent requested Mr. Rominger not
disclose the sale of the Office Complex to the Petitioner and conveyed to him, "they would
make it worth his while.. .".
15. Had Petitioner secured her own independent counsel, she would have had
adequate representation. Mr. Rominger, an interested party who allegedly represented the
Petitioner's interest, was actually representing his own interest and that of the Respondent,
the Decedent and his father, Robert M. Frey (the Decedent's business partner).
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16. In addition, Petitioner avers that the Respondent is an interested party to this
matter as his father, Robert M. Frey, engaged in several real estate ventures and businesses
with the Decedent and is now desirous of liquidating the same from the Estate of the
Decedent (see attached Exhibit "B").
17. Petitioner further avers that the Respondent is failing to uphold his fiduciary
duties in the administration of the Estate and wrongfully interfering with the Petitioner as a
beneficiary thereof.
18. Respondent has scheduled various auctions to occur as further discussed in
the attached correspondence (see Exhibit "e").
19. As of the date hereof, the Respondent has not provided an Inventory or
Accounting to the Petitioner of the assets of the Estate, and yet the Respondent continues to
proceed with the disposition of various assets in the form of scheduling auctions without
limitation.
20. Petitioner avers that the disposition of any asset as this stage is inappropriate
and imprudent.
21. Petitioner avers that various assets have disappeared including, but not
limited to, various paintings, rifles and jewelry of significant value.
22. Petitioner avers that seventeen (17) safe deposit boxes were entered and an
inventory of the contents has not been provided.
23. Petitioner further avers, pending the validity of the Prenuptial Agreement, the
Petitioner will seek her elective share against the Will as per 20 PA. S.C. ~2102 (the
"Elective Share").
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24. Petitioner avers she is entitled to one-half (1/2) the Estate as per 20 P A. S.C.
22102 (4).
25. Petitioner avers the total assets of the Estate may exceed Forty Million
Dollars ($40,000,000.00) and in the event the Petitioner proceeds with the Elective Share,
any disposition of any Estate assets, whether it be adjoining farms lands, farms, buildings or
appurtenant structures thereto, should not be disposed of until the claims surrounding the
Elective Share can be addressed and related documents thereto.
26. Petitioner may be entitled to Twenty Million Dollars ($20,000,000.00) based
upon her portion of the Elective Share.
27. Petitioner avers that the Federal Estate Taxes owed by the Estate as per
Section 2001 of the Internal Revenue Code of 1986, as amended (the "Code"), will vary
significantly depending upon the Elective Share and the Marital Deduction as per Code
Section 2056. In addition, the amount of the Elective Share will further vary depending
upon the allocation of the Federal Estate Taxes which may be paid from the residue thereby
diminishing the total value of the Estate for all beneficiaries.
28. In the event the Petitioner is entitled to her Elective Share, any assets passing
to the Petitioner will be free of Federal Estate Taxes (approximately $20,000,000.00);
however, any assets not passing to the Petitioner will be subject to Federal Estate Taxes
above the current applicable unified credit of Two Million Dollars ($2,000,000.00).
29. Petitioner avers that even with the Elective Share, the Federal Estate Taxes
owed could exceed Eight Million Dollars ($8,000,000.00) (this calculation does not include
Pennsylvania Inheritance Taxes).
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30. Petitioner intends upon requesting discovery to determine the validity of the
Prenuptial Agreement, and that it may be possible that the Prenuptial Agreement had been
procured under duress or fraud in the inducement.
31. Petitioner requests this Honorable Court to enter an order enjoining the
Respondent from disposing of any assets of the Estate pending an adjudication of the claims
as referenced herein.
32. Petitioner requests a third party independent executor be appointed by this
Honorable Court.
33. Petitioner further requests that she have supervised access to the various
buildings on the property, not limited to the various farms, barns and museums situated
thereon.
34. Petitioner further requests the Respondent complete an inventory and
accounting within Thirty (30) days of this Order.
WHEREFORE THE PETITIONER REQUESTS THE FOLLOWING RELIEF:
Respondent be removed as Executor of the Estate and a third party independent
executor appointed by this Honorable Court;
Respondent be further enjoined from disposing of any assets of the Decedent's estate
and provide an inventory of all assets within Thirty (30) days from the date hereof pending
the appointment of a successor executor;
the Petitioner is permitted access to any and all parts of the property pending
adjudication of the claims as set forth herein provided, however, upon any such access, the
Petitioner shall be accompanied by an uninterested third party fiduciary as appointed by this
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Honorable Court;
Respondent provide an accounting for all actions from the date of death until the
date hereof; and
together with such other relief as the court deems proper.
Respectfully submitted,
James mith, Dietterick & Connelly, LLP
Date: ~ I. Q I c (.,
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EXHIBIT A
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LAST WILL AND TESTAMENT
OF
LINWOOD B. PHD...LIPS, JR.
I, LINWOOD B. PHILLIPS, JR., of Dickinson Township (mailing address: 93 Encks
Mill Road, Carlisle, Pennsylvania 17013), Cumberland County, Pennsylvania, being ~f sound
and disposing mind, memory and understanding, do hereby make, publish and declare this as and
for my Last Will and Testament hereby revoking and making void any and all Wills by me at any
time heretofore made.
1. I direct my hereinafter named Executor or Executrix to pay all of my just debts and
funeral expenses as soon after my death as may be found convenient to do so. I further direct
that my funeral services be conducted by Ewing Brothers Funeral Home, 630 South Hanover
Street, Carlisle, Pennsylvania in a manner substantially similar to the arrangements which 1 made
. for my wife Edna Lucille Phillips and that my body be interred beside her grave on my burial lot
in Cumberland Valley Memorial Gardens located along Governor Ritner Highway near the
Borough of Carlisle, Pennsylvania. I further direct that on Lot 8C-l the same shall be reserved
for the burial of my wife, Alice Renee Phillips, her body to be located at the head of my body
and a headstone placed there substantially the same as the headstone marker at my grave.
2. I direct that all inheritance, transfer, succession, estate and death taxes which may be
payable on account of my death shall be payable from the assets which give rise to such taxes
and charged to the person or persons receiving the assets.
3. I give, devise, and bequeath to my hereinafter Trustee, his successors and assigns, in
trust, the maximum amount which will qualify for the unified credit for federal estate tax which
is presently $1,000,000.00 and scheduled to reach $3,500,000.00, to be divided into equal shares
for each of my four children who are LINDA L. STULL, LINWOOD B. PHILLIPS, III, MERLE
R. PHILLIPS AND ALLEN W. PHILLIPS, provided each one so sharing shall survive me by a
period of ninety (90) days, but should any of them fail to so survive me then the provision for
such deceased child shall lapse unless such deceased child shall have legitimate issue as
hereinafter defined who shall survive me by a period of ninety (90) days, in which case the
provisions for the deceased child of mine shall be divided between or among such legitimate
issue, per stirpes. The share allocated for each chiid of mine as above provided shall be invested
by my hereinafter named Trustee and each child of mine shall receive from income and principal
the sum of at least $12,000.00 per year or each child's share of the income, whichever shall be
greater. If the amount allocated for each child of mine shall be invested in any mutual fund or
funds, my Trustee is authorized and directed to allocate any ordinary income distributions and
any capital gain distributions partly or wholly to principal or to distributable income as the
Trustee shall deem best Upon the death of the child of mine for whom the share has been
allocated, any balance remaining in that child's share shall be paid to his or her legitimate issue
as hereinafter defmed who shall survive that child, per stirpes, and if there be no such legitimate
issue as hereinafter defined, then the.same shall be added to the shares of my other children. If
one or more of the other shares have been distributed to the issue of that child for whom such
share was held, then the amount which would have been added to such share shall be distributed
to the then living legitimate issue as hereinafter defmed of the child of mine whose share had
been distributed.
The meaning of "legitimate issue" as used a~ve shall be limited to a child or children
whether legitimate of not who were born to a female descendant of Testator, and shall be limited
to a child or children born to a male descendant of Testator where the father of such child or
children was married to the mother either before or after the birth of such child or children. In
any case, the meaning of "child" or "children" or "legitimate issue" as used above shall not
include any adopted child or children.
No title in any Trust hereby created, or in ~income accruing therefrom, or in its
accumulation, shall vest in any beneficiary and no beneficiary shall have the right or power to
transfer, assign, anticipate or encumber his or her interest in said Trust, or the income therefrom
prior to the actual distribution thereof by the Trustees to such beneficiary. Further, neither the
income nor the principal of said Trust shall be liable in any manner, in the possession of the
Trustees, for the debts, contracts or engagements of any of the beneficiaries.
Page 1 of 4 Pages
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4. If at the time of my death I am married to Alice R. Phillips and if she survives me, I
give, devise, and bequeath to my hereinafter named Trustee, his successors and assigns, in Trust,
my residence at 93 Encks Mill Road in Dickinson Township in Cumberland County,
Pennsylvania, together with its curtiledge and in addition the duplex dwelling house adjacent
thereto, and a garden house and garage building but not the various farm buildings and acreage,
together with the sum of $2,000,000.00, Q'wo Million Dollars) the income from which shall be
used for the benefit of my wife, ALICER PHILLIPS, she to have the right to occupy the
principal residence and the income to be used to pay real estate taxes and hazard insurance with
appropriate limits of coverage, make all necessary repairs and maintain both the buildings and
grounds, and the income in excess of that required for these purposes shall be paid at regular
intervals, at least annually, to or for the benefit of my wife Alice R. Phillips. UpOb the death of
my wife, Alice R Phillips, the assets of this Trust shall be retained by my hereinafter named
Trustee, his successors and assigns, in Trust and the income.and principal distributed as provided
in the Trust established in paragraph no. 3 hereinabove.
I direct my Executor to elect under Intemal Revenue Code Section 2056 to qualify this
Trust set forth in paragraph no. 4 above for the Federal Estate Tax marital deduction, limited,
however to those assets which otherwise would qualify for the marital deduction if transferred to
my wife, Alice R Phillips and to elect to have this Trust treated as a qualified terminable interest
Trust (QTIP).
5. All of the rest, residue and remainder of my Estate, real, personal and mixed, and
wheresoever the same may be situate, I give, devise and bequeath to my hereinafter named
Trustee, his successors and assigns, in Trust as a separate Trust to be held by him for the benefit
of my four children as provided in paragraph no. 3 above, and the income and principal of this
Trust shall be held and distributed in the same manner as provided in said paragraph number 3
above. Should the Trustee find it necessary or desirable to combine the assets of this Trust with
the assets oftha Trust provided in paragraph number 3 above if such combining is advantageous
to the operation of the Trust and its beneficiaries.
6. Any share or portion of a share of any Trust created hereunder, or any other property
of mine that is not disposed of under any other provision of this Will, shall go and be distributed
to the persons who would constitute my heirs-at-Iaw had I died ninety (90) days after my actual
date of death, intestate and unmarried.
"
7. If my wife and I should die under such circumstances that the order of our deaths
cannot be established by proof, it shall be presumed that my wife survived me.
8. I hereby nominate, constitute and appoint my friend's son, ROBERT G. FREY as
Executor of this my Last Will and Testament, but should he predecease me or fail to qualify or
cease serving as such, then in such event I nominate, constitute and appoint my daughter LINDA
A. STULL as alternate or successor Executrix and I further direct that neither of them shall be
required to post any bond to secure the faithful perfonnance of his or her duties in the
Commonwealth of Pennsylvania or in any other jurisdiction.
9. I hereby nominate, constitute, and appoint my friend's son ROBERT G. FREY as
Trustee of all the Trusts hereinbefore set forth. The compensation of said Trustee and of his
successors. shall be limited to a total of one-half of 1 % of the value of the corpus of the Trust
calculated annually as of December 31st of the immediately preceding year. In any year in
which said Trustee declines or fails to accept compensation, the same shall be deemed waived
and shall not be accumulated for payment in a future year.
10. In addition to the powers conferred by law, my hereinbefore named Executor and
Trustee, and his successors, are empowered:
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a. To invest any part of the trust corpus in such securities, investments, or other
property as may be deemed advisable and proper, irrespective of whether the same are
authorized for the investment of trust funds under the laws of any governing jurisdiction.
Page 2 of 4 Pages
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. b. With respect to any corporation, the stocks, bonds, or other securities of which
may be~eld, to vote in person or by proxy on any shares of stock; to coru:ent to the ~erger,
consolidation or reorganization of such corporations; to consent to the leasIng, mo~agI?g or
sale of the property of any such corporations; to make any surrender, exchange or sub~tihl:tion of
such stocks, bonds or other securities as an incident to the merger,. consolIdatIOn or
reorganization of such corporatio~; to pay all. assessments, subs~riptions an~ other sums of
money which may be deemed Wlse and expedIent for the protection and maIntenance of the
proportionate interest of the investment in s~ corporations; to exercise any option or privilege
which may be conferred upon the holders of such stocks, bonds, or other securities of such
corporations either for the conversion of the same into other securities. or for the purc~ase ?f
additional securities, and to make any and all necessary payments whIch may be reqUIred In
connection therewith; and generally to have and exercise as to all such stocks, bonds and other
securities, the powers of an individual owner who is not under trust obligation.
c. To hold the trust corpus in one or more consolidated funds in which separate
shares shall have undivided interests.
d. To sell at public or private sale for cash or upon credit, or partly for cash and
partly on credit, and upon such terms and conditions as shall be deemed proper, any part or parts
of my estate or the trust estate, and no purchaser at any such sale shall be bound to inquire into
the expediency or propriety of any such sale or to see to the application of the purchase moneys
arising therefrom.
e. To keep on hand and uninvested such money as may be deemed proper and for
such period as may be found expedient.
f. To compromise, settle or arbitrate any claim or demand in favor of or against my
estate or the trust estate.
g. And authorized in the discharge of fiduciary duties, to employ counsel and to
determine and to pay such counsel reasonable compensation which shall be charged against the
principal or income of the trust fund, and shall further be entitled to charge against the principal
or income such other reasonable expenses and charges as may be necessary and proper to incur
for the proper discharge of fiduciary duties and for the proper management and administration of
the trust estate. .
h. In making any division of property into shares for the purpose of any distribution
thereof directed by the provisions of the trust, to make such division or distribution. either in
cash or in kind, or partly in cash and partly in kind, as shall be deemed most expedient, and in
making any division or distribution in kind may allot any specific security or property or any
undivided interest therein to anyone or more of such shares, and to that end may appraise any or
all of the property so to be allotted and the judgment as to the propriety of such allotment and as
to the relative value for purposes of distribution of the securities or property so allotted shall be
final and conclusive upon all persons interested in the trust or in the division or distribution
thereof.
i. And authorized to register any shares of stock or other assets of any trust in their
own names or in the name of a nominee.
j. To retain and invest in shares of stock of my Trustee.
k. To retain any investments including mutual funds which I may own at the time of
my death and in addition to invest any part of the Trust corpus in such mutual fund or mutual
funds as may be deemed advisable or proper, irrespective of whether the same are authorized for
the investment of trust funds under the laws of any governing jurisdiction.
1. To determine from time to time whether all or some portion of realized capital
gains shall be treated as ordinary income for distribution to a beneficiary or treated as principal
to be retained as part of the corpus, and such designation need not be consistent from one year to
another.
Page 3 of 4 Pages
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IN WITNESS WHEREOF, I hav~ h~r;,~;o set np' ~~d _and _s7al to tJ?is my Last Will and
Testament 'written on three (3) pages, thil1lY'Uay of 7 fltVl.{!/l,~
CJC05
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Linwood B. Phillips, Jr. f
Signed. sealed, published, and declared by LINWOOD B. PHILLIPS, JR., the Testator
above named, as and for his Last Will and Testament, in our presence, who, in his presence, at
his request, and in the presence of each other, have hereunto subscribed our names as attesting
witnesses.
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Page 4 of 4 Pages
FIRST CODICIL TO LAST WILL AND
TESTAMENT OF LINWOOD B. pmLLIPS~ .~
DATED MARCH 31' 2005
I, LINWOOD B. PHILLIPS, JR., of Dickinson Township (mailing address: 93 Encles
Mill Road, Carlisle, PA 17013), Cumberland County, Pennsylvania, being of sound and
disposing mind, memory and understanding, do hereby make, publish, and declare this as
and for a First Codicil to my Last Will and Testament dated March 3,2005.
4. I hereby revoke in its entirety paragraph number four (4) of said Last WiJI
and Testament dated March 3, 2005, and substitute therefore the following:
If at the time of my death I am married to Alice R. Phillips and if she survives me,
I give devise and bequeath to my Trustee named in paragraph number eight (8) of said
Last Will and Testament, his successors and assigns, whatever dwelling house and lot of
ground fmay have hereafter had constructed or acquired, it being my intention to have
constructed a dwelling house on one of my lots located in the Subdivision known as
Clarendon, in Dickinson Township, Cumberland County, Pennsylvania, which house and
lot of ground shall be used for the benefit of my wife, Alice R. Phillips, she to have a life
estate in the same so long as she shall live, and in addition, I give devise and bequeath to
. said Trustee the sum of $2,000,000.00 in trust, the income from which or 5% of the
principal thereof as of December 31 st of the year preceding the year of distribution to her,
whichever shall be larger, which shall be used for the benefit of my wife, Alice R.
Phillips, so long as she shall live, she to have the right to occupy said house and lot of
land and said income shall be used to pay real estate taxes and hazard insurance with
appropriate limits of coverage, and for the making of all necessary repairs and
maintenance of the buildings and land, and the income in excess of that required for these
purposes shall be paid to her or for her benefit at regular intervals, at least annually.
Upon the death of my wife Alice R. Phillips, the assets of this trust shall be retained by
my said Trustee, his successors and assigns, in trust, and the income and principal
distributed as provided in the trust established in paragraph number three (3) of my said
Last Will and Testament dated March 3, 2005. In the event that I have not constructed a
dwelling house on one of my lots in Clarendon, Dickinson Township, Cumberland
County, Pennsylvania, then I direct my Executor to do so for use by my wife, or to
acquire a suitable dwelling elsewhere in which she shall have a life estate, cost of which
shall not exceed $300,000.00 if a new house is constructed or $350,000.00 if a house and
lot are purchased, which shall be in addition to the $2,000,000.00 to be held in trust as
above provided.
I direct my Executor to elect under Internal Revenue Code Section 2056 to
qualify this trust as set forth in this paragraph number four (4) above for the Federal
Estate Tax Marital Deduction, limited, however, to those assets which otherwise would
First Codicil to Last Willand Testament of
Linwood B. Phillips, Jr.
Page I 0/2
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qualify for the marital deduction if transferred to my wife Alice R. Phillips and to electto
have this trust treated as a Qualified Terminable Interest Trust (QTIP).
Except as hereinabove provided, I hereby ratify and affirm the provisions of my
said Last Will and Testament dated March 3, 2005.
_ IN WITNESS WHEREOF, I have hereunto set my hand and seal1!lt1 First
~st Will and Testament, dated March 3, 2005, on this I day of
)'fJ'L/ ,2005.
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(SEAL)
Signed, sealed, published and declared by LINWOOD B. PHILLIPS, JR., the
Testator above named, as and for a First Codicil to his Last Will and Testament dated
March 3, 2005, in our presence, who in his presence, at his request, and in the presence of
each other have her.eunto subscribed our names as attesting witnesses.
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First Codicil to Last Will and Testament of
Linwood B. Phillips, Jr.
Page 2 of2
SECOND CODICIL TO LAST WILL AND
TEST AMENT OF LINWOOD B. PIDLLIPS. JR.
DATED MARCH 3. 2005
I, LINWOOD B. PHILLIPS, JR., of Dickinson Township (mailing address: 93 Encks
Mill Road, Carlisle, PA 17013), Cumberland County, Pennsylvania, being of sound and disposing
mind, memory and understanding, do hereby make, publish, and declare this as and for a Second
Codicil to my Last Will and Testament dated March 3, 2005.
A. If at the time of my death I am married to Alice R. Phillips and if she survives
me, until such time as she shall actually occupy the dwelling house contemplated to be acquired
either by new construction or purchase of an existing house and lot of ground, etc., as provided in
the First Codicil to my Last Will and Testament which Codicil is dated November 17,2005,1
direct that Alice R. Phillips shall have the right to occupy my residence at 93 Encks Mill Road in
Dickinson Township, in Cumberland County, Pennsylvania, together with its curtilege and in
ad~i"tion the duplex"~~;g,ing~use adjac~nt ~~~to, and a garden.~o.~se .an~ ga~e_building, and _"
garden area ana-PC?lIi:t.IQcated"bet~een saId dwelhngliouse and E"ncKii1\.1lU oad;but not the
various'farm buildings and acre~ During the time my wife Alice R. Phillips shall choose to
'"8e'eUj;y1hT,S'pFOper fy,. "he-mnltt1ie responsible for paying the real estate taxes and hazard
insurance with the appropriate limits of coverage, make all necessary repairs, and maintain both
the buildings and grounds, applying the income from the duplex dwelling houses and any other
income generated by the premises to these expenses. All expenses in excess of that generated
from said duplex dwelling house and any other income generated from the premises, shall be paid
from the Trust fund provided for her as set forth in the First Codicil to my Last Will and
Testament dated November 17,2005.
It is my expectation that my said wife Alice R. Phillips shalLchoose to occupy the . .....
residence contemplated to be constructed or acquired as set forth in said First Codicil to my Last
Will and Testament, and upon her choosing to do so, the right to occupy the property herein
provided at 93 Encks Mill Road shall terminate.
B. No title in any Trust created under any provision of my Last Will and Testament
dated March 3, 2005 or in the First Codicil to said Last Will and Testament dated November 17,
2005, or in the within Second Codicil to said Last Will and Testament, or in any future Codicil to
said Last Will and Testament, or in the income accruing therefrom, or in its accumulation, shall
vest in any beneficiar.y and no beneficiary shall have the right or power to transfer, assign,
anticipate or encumber his or her interest in such Trust or Trusts, or in the income therefrom prior
to the actual distribution thereof by the Trustee or Trustees to such beneficiary. Furthermore,
neither tile income, nor the principal of any such Trust shall be liable in any manner, in the
possession of the Trustee or Trustees, for the debts, contracts or engagements of any of the
beneficiaries.
c. Except as hereinabove provided, I hereby ratify and affirm the provisions of my
said Last Will and Testament dated March 3, 2005, and the provisions of the First Codicil to my
said Last Will and Testament dated November 17,2005.
IN WITNESS WHEREOF, I have hereunto set my hand and seal to this Second Codicil
to my Last Will and Testament, dated March 3,2005, on this ~~ay of Hc),[;mbtr, 2005.
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~/:J 6~ (&?AL)
LINWOOD B. PHILLIPS, JR. ~
Signed, sealed, published and declared by LINWOOD B. PHILLIPS, JR., the Testator
above named, as and for a Second Codicil to his Last Will and Testament dated March 3,2005, in
our presence, who in his presence, at his request, and in the presence of each other have hereunto
subscribed our names as attesting witnesses.
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qualify for the marital deduction if transferred to my wife Alice R. Phillips and to electto
have this trust treated as a Qualified Terminable Interest Trust (QTIP).
Except as h~reinabove provided, I hereby ratify and affirm the provisions of my
said Last Will and Testament dated March 3, 2005.
_ IN WITNESS WHEREOF, I have hereunto set my hand and seal 1!!t1 First
~ast Will and Testament, dated March 3, 2005, on this I day of
J-eA./ , 2005.
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LINWOOD B. PHILLIPS, JR. u
(SEAL)
Signed, sealed, pubIishedand declared by LINWOOD B. PHILLIPS, JR., the
Testator above named, as and for a First Codicil to his Last Will and Testament dated
March 3, 2005, in our presence, who in his presence, at his request, and in the presence of
each other have her.eunto subscribed our names as attesting witnesses.
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First Codicil to Last Will and Testament of
Linwood B. Phillips, Jr.
Page 2 of2
EXHIBIT B
12/31/99
LISTING OF ASSETS
PHILLIPS & FREY
EDLU Corporation properties
South Middleton Twp. (Baker farm/field next
to Western Village)
Ewing farm (Middlesex Twp./Wolfe's Bridge Rd.)
Wert farm (Wolfe's Bridge Rd.)
Snug Harbor (Cavalry Road)
Wertz Run Rd. (old slate bank)
Baker farm (90A/Walnut Bottom Rd. north to Allen Rd.)
Lutz farm (Dexo/2A beside Montseragrocery
store / Pine Rd.)
S. Mddleton Twp. (beside Walnut Terrace/ 18.008A)
West Western Village
Lillich Property
Ashley Place
Lots #46 & #47, Spring Road, North Middleton Township
Gilliard Land (South Middleton Township, 19 acres)
Gilliard Land (Mt. Holly)
Gilliard Land (Route 94, South Middleton Township)
Bear Farm (40 acres, Dickinson Township)
improvements
Bear Farm. (Lot #6)
Bear Farm. (Lot #7)
Huntington Township, Adams County (58 acres near Heidlersburg)
Warrington Twp. (20A/ off Fickes Rd. near Dillsburg)
Shughart land (1 OA on north side of 181 abutting Royer farm. on east)
Smith farm. (110A along Adams Rd. in SMT, adjoining DDOZPF farms)
Line lot
Duttera land
8,433.00
5,935.00
1,771.00
10,403.00
1,089.00
25,774.00
247.00
7.075.00
$60,727.00
24,333.33
20,000.00
484.42
1,658.95
846.58
2,000.00
18,000.00
**144,134.26
2,000.00
2,000.00
16,749.07
668.96
863.04
7,616.84
1,215.50
6,062.38
Raudabaugh Farm
Bam
land
improvements
*45,533.30
131,620.25
**265,424.25
Fairfax land
8,500.00
Hamilton Court land
(all buildings fully depreciated)
2,000.00
Highland Court land
(all buildings fully depreciated)
9,050.00
Burr Avenue (Barrett lot)
Burr Avenue
902-912 Burr Avenue
914-924 Burr Avenue
40,000.00
6,350.73
*189,996.77
*189,996.77
Center Street (Marshall)
Center Street (land townhouses sit on)
1,865.00
3,862.05
Houston land
910-918 Rockledge
932-942 Forest Ct.
16,822.00
*16,586.86
*10.891.52
TOTAL
$1.248.045.72
Land
Improvements (**)
Depreciable buildings (*)
385,482.11
409,558.51
453.005.10
$1.248.045.72
Memorandu
of U nderstandin
Tht's Memorandum of understanding is entered to on ,2005, betWeen Linwood B. Phillips,
ed "Owner," and William L. Shearer, Jr. hereinafter referred
Jr., and Robert M. Frey, hereinafter referr to ,
to as "Facilitator".
In consideration of the following tenn and conditions, Owner and Facilitator agree as follows:
Owner is the owner of31 acres in South Middleton Township, Cumberland County, PA.,
1. being bordered by Walnut Botto Road to the north, Adams Road to ~e West and ~~~ster
Drive cuI-de-sac to the East. 0 er desires the property to ~e the sU~J.e~t of a SubdIVISIon
Plan for residential purposes with e lots, to be shown on saId SUbdIVISion Plan, to be made
available for sale.
2. Facilitator is to do worknecess with engineers, township officials, and contractors which
may be needed for land developm nt and/or subdivision approval of the property, to .
coordinate, with contractors, deve opers, etc., making site improvem~ts if needed, ~Ith the
installation of public water and se er lines and ~aterals, street c~s, sId~walks, grading, .
stonn water improvements and pr vi ding electrIcal and other u~ty servIce to the pr{)pe~ If
needed. All of the decisions or re ommendations made by FacIlrtator shall :first be submItted
to Owner for approval by Owner.
4. Owner's costS and net proceeds s all be determined as follows:
a) A value of$I,500,000 s I be the present basis to which is added all real estate
taxes which may be paid on or after July 1,2005, but not including taxes which have
accrued and are payable hen the land is removed from the Clean and Green
Program for the time pri r to July 1, 2005, plus all engineers and surveying charges
incurred by Owner inclu ing amounts presently accrued but not paid to Dawood
Engineering, Inc. plus all fees incurred by Owner which may be payable to South
Middletown Township a dlor South Middletown Township Municipal Authority,
plus expenses incurred b Owner for site development including public water supply
lines and laterals, public itary sewer lines and laterals (but not including amounts
paid for such laterals pri to the date hereof), and amounts incurred by Owner
which may be payable fo other site development such as streets, curbs, gradings,
etc. The net proceeds sh.ll be determined as follows: the sales price of the land sold
less and transfer tax paya Ie by the Owner; unpaid and prorated real estate taxes and
rollback taxes; brokers' a d real estate agents' fees, commissions and transactions
costs applicable only to e Owner; unpaid and prorated municipal water and sewer
charges applicable to the roperty being sold; any tax certification fees; payments
and costs associated with the satisfaction of release of any mortgages; judgments or
other lien obligations of e owner. In addition, if the project has not been completed
and sold by July 1,2010, ere shall be added to Owner's costs, for the purpose of
calculating the difference betWeens Owner's costs and the net proceeds of sale or
sales, interest at the prim rate determined for the period beginning July 1,2010 and
continuing until all of the land, in its entirety or in parcel, has been sold with credit
given for completed trans ctions.
being paid 22 Y%% of the difference between Owner's cost
t proceeds received by Owner for such sale or sales.
3. Facilitator shall be compensated
as hereinafter calculated and the
S. Payment to Facilitator shall be ma e immediately, by Owner, from the proceeds of each sale,
calculated as hereinabove set forth In the evem of a sale or sales of land less than the entire
property (31 acres), the amount of wner's costs utilized to calculate the compensation to
Page 1
10/19/2005
6. Iffor any reason all or any part of he land referred to in paragraph #1 above has not been sold
by January 1,2012, the work cont mp1ated to be completed by this Memorandum of
Understanding and Facilitator sha be deemed terminated, and Owner shall have no
obligation to Facilitator, and the F cilitator shall have no obligation to Owner, thereafter.
7. Owner and Facilitator agree that i is not expected that a sale or sales of the lands to be
subdivided will be accomplished tough listing with any Realtor, but instead will be made by
a direct contact between Owner d Facilitator, as Sellers, with proposed Buyers. However,
if the property is listed for sale wi h a Realtor or a sale is made utilizing the services of one or
more Realtors with whom the pro erty has been sold or listed with, Owner agrees that Wolfe
& Shearer Realtors shall be utiliz for purposes of marketing and selling of property upon
such terms and conditions and wi the compensation paid to Wolfe & Shearer of 1 % of the
sale price, compensation paid to obert M. Frey of I % and compensation paid to L.B.
Phillips, Jr., of 1 % of the sale pric . Whatever additional commission is paid to another
participating Realtor(s) shall be a eed upon. Owner further agrees that the property will be
actively marketed for sale upon s bdivision and/or land development approval of the
property, whether conditional or conditional approval from South Middletown Township.
g shall be legally binding upon Owner and Facilitator as
istrative representatives, successors, and assigns~
8.
INTENDING TO BE LEGALLY B ND, hereby, the parties have executed this memorandum
of Understanding the day and year firs above written.
Linwood B. PhilJips, Jr.
SEAL)
Robert M. Frey
SEAL)
William L. Shearer, Jr.
SEAL)
Page 2
I all 9/2005
EXHIBIT C
f
. f'"
FREY & TILEY
ATTORNEYS-AT-LAW
5 SOUTH HANOVER STREET
CARUSLE. PENNSYLVANIA 17013
ROBERT M. FREY
OF COUNSEL
STEPHEN D. TILEY
ROBERT G. FREY
April 11, 2006
TELEPHONE (717) 243.5838
FACSIMILE (717) 243-6441
Jered L. Hock, Esquire
P. O. Box 5300
Harrisburg, PA 17110-0300
Re: Estate of Linwood B. Phillips, Jr.
Dear Mr. Hock:
I am writing to provide you with an update to my letter of Friday, April 7,
2006. I met with Bill Rowe of Rowe's Auction Service and Linda Stun this
morning at the farm buildings behind the house. While we were traveling
between buildings, Alice drove up to us in one of the golf carts. She let us. mow
that she was not happy that we were there, she said that I had not notified her
that we would be at the property, and drove off saying that she was getting a court
order to "put a stop t6 all of this." I do not know to what she had referenc~ when
she said "all of this" but I believe everyone has attempted to give her the privacy
which she seems to desire. Because of her reaction, I did not attempt to enter .
onto the form'al grounds to inquire as to the appraisal of the contents of the house
or to c!rop off a lawnmower. .
The general plan of the appraiser is to have several people with him
beginning next Tuesday to more thoroughly inv.entory the property. He expects
that this process will take several days. I am also having the maintenance men
begin the process of cleaning the barn and the grounds around the building in
anticipation of the public sale. l\1r. Rov{e kno\\'s the location of the farm lane. for
access to the buildings. He is planning to have.one outdoor sale at the property
for the larger items. No date has been set for the sale but I anticipate it will be in
June or July. I will notify you when a date has been scheduled and I will make
certain that the entrances to the residence part of the property are blocked off on
that date. I am contacting the farmer who farms the adjoining fields to provide
an area for parking. These arrangements should adequately protect the portion
of the property used by Alice from interference.
Mr. Rowe is also planning at least one public sale at the their allc~on
house of some of the smaller and more valuable items. No date lias ~eenset for
thatsale either. --:.. ,'"
While the Rowes are at the property next week, I would like them to have
.'
Frey & Tiley
Attorneys-At-Law
Metzger Wickersham
Attn.: JarrodHock. Esquire
Re: Estate of Linwood B. Phillips, Jr.
April 11, 2006
Page 2
an opportunity to view the contents of the house for appraisal purposes. I would
like to remove all of the guns stored in the house at that time.. Please let me
know what date and time would be acceptable. I also understand that there is a
large amount of items stored in the attic and basement that we may need to make
arrangements with them for removal at some time for the auction at their auction
house.
Finaliy,~I .am requesting that Alice and her guests refrain from using
portions of the property other than those specifically allocated to her in the
codicil for her temporary use. With all of the work that will be taking place over
the next several months, I do not think is appropriate to have persons other than
workers back in that area. Furthermore, I do not know of any reason why anyone
else would have a reason to be in that area.
I thank you for your cooperation.
Cc: via email toJLH@mwke.com
Robert G. Frey
VERIFICATION
I, Alice R. Phillips, verify that the facts set forth in the foregoing document are
true and correct to the best of my information, knowledge and belief. I understand that
false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to
unsworn falsification to authorities.
Date:
5/10/0&
'-
~ /? d'lA~ fu
Alice R. Phillips
CERTIFICATE OF SERVICE
I, NEIL WARNER Y AHN, Esquire, do hereby certify that 1 served a true and correct
copy of the foregoing Petition for Relief upon the following below-named individuals by
hand delivery this I () '- day of May, 2006.
SERVED UPON:
Robert G. Frey
Frey & Tiley
5 South Hanover Street
Carlisle Pennsylvania 17013