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HomeMy WebLinkAbout21-2004-87 Orphan's IN RE: ESTATE OF JOSEPH D. BRENNER, SR., JOSEPH D. BRENNER, JR. AND MARGARET B. BUSHEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION V. MANUFACTURERS AND TRADERS TRUST COMPANY a New York Corporation, DAVID C. GORITY, an Individual and CURT R. STAUFFER, an: Individual No. 21-2004-087 IN RE: JOSEPH D. AND JANE W. BRENNER TRUST No. 21-2003-879 IN RE: JANE W. BRENNER TRUST UWO"B" No. 21-2003-881 IN RE: JANE W. BRENNER TRUST UWO"C" No. 21-2003-881 IN RE: NANCY B. BLAKELY TRUST No. 21-2003-883 IN RE: CROSS-EXCEPTIONS TO AUDITOR'S REPORT OPINION AND INTERIM ORDER OF COURT Bayley, J., May 24, 2005:-- Joseph D. Brenner, Sr. and his wife, Jane W. Brenner, executed an intervivos trust for the benefit of their four children, and upon the deaths of those children, to their grandchildren. Margaret B. Bushey and Joseph D. Brenner, Jr., two Brenner children, and the Manufacturers and Traders Trust Company (M& T Bank), are co-trustees of No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 this "Grandchildren's Trust" (Joseph D. and Jane W. Brenner Trust - No. 21-2003- 879). Jane W. Brenner executed three intervivos trusts for the benefit of Brenner, Sr., and the four Brenner children. Brenner, Sr. and M&T Bank are the co-trustees of these "Children's Trusts" (Jane W. Brenner Trust UWO "B" - No 21-2003-881; Jane W. Brenner Trust UWO "c" - No. 21-2003-881; and Nancy B. Blakely Trust - No. 21-2003- 883). Jane W. Brenner is now deceased. The institutional co-trustee of all of the trusts was originally the Farmers Trust Company, which became Keystone Financial N.A., which became M&T Bank. David C. Gority, an employee of M&T Bank, is primarily responsible for working with Brenner, Sr., Brenner, Jr., and Bushey with respect to all of the trusts. Curt R. Stauffer of M& T Bank assists Gority. At the inception of the trusts, the sole corpus was the stock of AMP, Inc. Brenner, Sr., now 87 years old, is a former chief executive officer of AMP, Inc. He has served as a director of the Farmers Trust Company and currently serves as the director of Frog, Switch and Company, Inc., a local industry. The AMP, Inc. stock converted to Tyco International, LTD. All of the remaining shares of Tyco stock in the trusts were sold on June 12, 2002. It is that sale which gave rise to the claims of the individual trustees for a surcharge against M& T Bank, Gority and Stauffer for an alleged breach of fiduciary duty in the administration of the trusts. The claims were assigned to an -2- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 auditor who conducted hearings and filed a report and recommendation.1 The auditor concluded that M& T Bank, Gority and Stauffer did not breach a fiduciary duty in administering the trusts. No surcharge was recommended. The auditor recommended that M& T Bank not recover the cost of its defense. The individual trustees and M& T Bank filed exceptions to the auditor's report. The Judicial Code at 42 Pa. C. S. Section 102 provides for the appointment, inter alia, of auditors and masters. The Orphans' Court Rules of the Pennsylvania Supreme Court provide: RULE 7.1 EXCEPTIONS Exceptions shall be filed at such place and time, shall be in such form, copies thereof served and disposition made thereof as local rules shall prescribe. Cumberland County Orphans' Court Rule 8.7-2, titled OBJECTIONS, provides: Objection to the auditor's report shall be filed with the Clerk within twenty days after receipt of the notice of filing of said report. Objections shall be specific as to the basis of the Objection whether as to the findings of fact or conclusions of law or both. RULE 8.7 CONFIRMATION OF REPORT (a) The report of an auditor shall be confirmed in such manner as local rules shall prescribe. 1 The claims were originally filed in the Civil Division. A preliminary objection to the Brenners' complaint was granted. The claims were then transferred to the Orphans' Court Division. Brenner v. Manufacturers and Traders Trust Company, 53 Cumberland L.J. 49 (2004). -3- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 The scope of our review of the exceptions to the auditor's report is set forth in In re Sweeney, 695 A.2d 426 (Pa. Super. 1997). This court has the authority to accept or reject the report and recommendations in whole or in part, to remand to supplement the record or for consideration of issues not fully considered, to hold hearings to supplement the findings, or to allow oral argument and submission of briefs, all before entering a final order. In the present case, we heard oral argument on briefs on March 23, 2005, and have not taken additional evidence. The individual Trustees have briefed four exceptions to the auditor's report. M& T Bank has briefed one exception. EXCEPTIONS OF THE INDIVIDUAL TRUSTEES I. Brenner Sr.'s Diminished Capacity is a Fundamental Issue, and the Court Should Hear Evidence on this Issue Itself. Among the findings made by the auditor are: Brenner, Sr., is best described as having a hands on philosophy with respect to all of the Trusts, notwithstanding the fact that he is not a Co-Trustee to the Grandchildren's Trusts. Brenner, Jr., and Bushey deferred to Brenner, Sr., with respect to all dealings with M&T Bank and all decisions made with respect to the retention or disposition of the Tyco stock in these Trusts. In February of 2000, the Grandchildren's Trust was. . . partially diversified by the sale of a portion of the Tyco stock contained therein. This was done to increase the income flow to the beneficiaries of this Trust. The proceeds were utilized to purchase tax free municipal bond type investment. On August 20, 2000, Brenner, Sr., reaffirmed, in writing, his desire that all shares of Tyco stock be retained in the Trusts. M& T, as well as its predecessors, repeatedly counseled and -4- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 advised Brenner, Sr., along with Brenner, Jr., and Bushey, as to its concerns with respect to holding Tyco stock only in the Trusts. M& T, through Gority and Stauffer, on numerous occasions, urged Brenner, Sr., along with Brenner, Jr., and Bushey to diversify its holdings in the Trusts. The value of Tyco stock fell from about $55.00 per share in the later part of 2001 to $10.00 per share on or about June 2, 2002. In June of 2002 M&T Bank recommended that Tyco stock be off- listed and expressed concerns as to possible bankruptcy of Tyco. From January 2002 to June 2002, Gority and Stauffer repeatedly advised Brenner, Sr., along with Brenner, Jr., and Bushey, to diversify the holdings of the Trusts. M& T's concerns relative to the high concentration of Tyco stock in the Trusts heightened during the early part of June 2002. Concerns arose as a result of accounting irregularities, the arrest of Tyco's Chief Executive Officer, Dennis Kozlowski, amid charges to tax fraud and other allegations of wrong-doing. On June 7,2002 Stauffer contacted Brenner, Sr., Brenner, Jr., and Bushey to specifically inform them of M& T's decision to no longer hold Tyco stock in any of its model portfolios. On June 7, 2002 Tyco stock closed at approximately $10.00 per share. On Monday, June 10, 2002, Stauffer spoke with Brenner, Sr. and scheduled a meeting for Wednesday, June 12, 2002, to discuss options and recommendations concerning the Tyco stock in the Trusts. Stauffer was advised by Brenner, Sr., that only he would be attending the June 12, 2002 meeting and that only he would be representing the interests of the Trusts. The June 12, 2002 meeting was attended by Gority, Stauffer and Brenner, Sr. John Klobusicky, Senior Investment Officer in Pennsylvania for M& T, participated by speakerphone. Gority and Stauffer offered an explanation as to concerns and advised as to options. The Bank recommended that one-third (1/3) of the Tyco shares held in the Trusts should be sold immediately, with a "stop loss [sic]" order to be placed at $9.00 per share on all remaining shares. Brenner, Sr., at the conclusion of the June 12, 2002 meeting, signed two (2) written authorizations. One authorization directed the -5- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 immediate sale of one-third (1/3) of the Tyco shares in the Trusts in which he was the Co-Trustee (the Children's Trusts). The second signed written authorization authorized the use of a stop loss [sic] order on the balance of the shares at $9.00 per share. Again pertaining to those Trusts in which he was the Co-Trustee. Brenner, Sr., fully understood and voluntarily signed both written authorizations. Brenner, Sr.'s written authorizations constituted his consent. Given the totality of the circumstances, the consent was informed consent. Gority and Stauffer properly and professionally explained the circumstances and their concerns with respect to the Tyco stock and, further, advised as to their recommendations at the June 12, 2002 meeting. This meeting lasted approximately one (1) hour. Immediately following the termination of the June 12, 2002 meeting with Brenner, Sr., Gority contracted and received approval via telephone from Brenner, Jr., and Bushey to sell one-third (1/3) of the stock in the Grandchildren's Trust and to place the stop loss [sic] order. Brenner, Sr., at no time immediately subsequent to the June 12, 2002 meeting and the placement of his signature on the two (2) authorizations, advised Gority, Stauffer or any other M& T employee or official that he did not understand or appreciate the explanations given nor the actions that he authorized. Brenner, Sr., did not suggest to anyone during or immediately following the June 12, 2002 meeting that he needed additional time to consider M& T's recommendations as made by Stauffer and Gority or, further, did he request time to speak with Brenner, Jr., Bushey or his accountant. Objectors have not established, through Dr. Joseph F. Brazel, or otherwise, that Brenner, Sr., had reduced mental capacity on or before June 12, 2002, such that Brenner, Sr. did not appreciate and understand the advice and recommendations provided by M& T. Dr. Joseph S. Brazel's diagnosis that Brenner, Sr. suffered from senile dementia, Alzheimer's type, prior to June 2002 was based upon observations only. No clinical tests, including the Wechsler test or any other evaluations were given. Dr. Brazel did not communicate his diagnosis to Brenner, Jr., Bushey or any other member of the Brenner family. Dr. Brazel did not recommend that Brenner, Sr. stop driving his motor vehicle. Dr. Brazel -6- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 did discourage Brenner, Sr. from driving his motor vehicle on the interstates. Brenner, Sr., on or before June 12, 2002 was capable of making decisions regarding the disposition and sale of the Tyco stock in the Trusts. Neither Brenner, Jr., Bushey, nor Dr. Joseph F. Brazel, Brenner, Sr.'s personal physician, communicated to Gority, Stauffer, or any other employee or representative of M& T, or it predecessors, their concerns andlor diagnosis that Brenner, Sr. was suffering from a reduced or diminished mental capacity on or before June 12, 2002. Gority testified that he never had a reason to doubt Brenner, Sr.'s capacity. Furthermore, Gority testified that he would never have participated in nor would he have allowed Brenner, Sr., to make decisions or sign documents if he had any question as to his lack of sufficient mental capacity. The auditor concluded: [t]hat Brenner, Sr., did, in fact, possess sufficient mental capacity to know, appreciate and understand the advice, opinions and recommendations that were given to him on June 12, 2002 by Gority, Stauffer and Klobusicky. Furthermore, it is clear that Brenner, Sr., understood and voluntarily executed the authorizations resulting in the immediate sale of one-third (1/3) of the Tyco stock holdings, along with the stop-loss order involving the remaining shares, all with respect to the Children's Trusts, of which he was Co-Trustee. . . . The most persuasive evidence as to the mental competency of Brenner, Sr., was his own testimony. Clearly, Brenner, Sr., in his own words, was not physically capable at age 87 of doing all the things that he previously did and enjoyed. This is a natural part of the aging process and is perfectly understandable. However, Brenner, Sr., by his own testimony, stated that he was perfectly capable of handling his own financial affairs. Both under direct and cross examination, Brenner, Sr., exhibited a very clear ability to comprehend questions asked and to respond accordingly. As to cross examination, Brenner, Sr., more than held his own. It is important to note that Brenner, Sr.'s alleged incapacity was not communicated to M& T Bank through either Gority or Stauffer or any other -7- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 individual. No communication as made by Brenner, Sr., Brenner, Jr., Bushey, or Dr. Joseph F. Brazel, Brenner, Sr.'s doctor. Shawnee Smith, an M&T Bank employee had interacted with Brenner, Sr., since 1987. Although Shawnee Smith noted changes, those changes were primarily physical, being attributed to the normal aging process. Throughout their interactions Brenner, Sr., exhibited a high degree of professionalism and knowledge, particularly with respect to his bank dealings. The individual trustees alleged that M& T Bank and its employees breached a fiduciary duty by capitalizing on Brenner, Sr.'s reduced physical and mental condition in order to sell all Tyco stock held by the trusts.2 After examining the record we are satisfied that the finding of the auditor that Brenner, Sr. was capable of making decisions and did make decisions regarding the sale of the Tyco stock is supported by the evidence, and we accept it. There is no basis for this court to separately litigate the issue of Brenner, Sr.'s capacity in this regard. II. Based on the Undisputed Facts, M& T's Recommendation to Enter a $9.00 Stop-loss Order on June 12, 2002, Was Negligent as a Matter of Law. The Auditor Also Did Not Make Adequate Findings on this Issue. The individual trustees maintain that M& T Bank and its employees were negligent as a matter of law for recommending the entry of a $9.00 stop-loss order on June 12, 2002, which resulted in the Tyco stock being sold. Despite the fact that the stock price had been declining precipitately, the individual trustees argue that the bank 2 There is no issue here that the recommendation of the Bank to sell the Tyco stock -8- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 did not explain to them how the stop-loss order worked, how the $9.00 trigger price was set, how it tested the trigger price, or the likelihood of the $9.00 stop-loss order triggering in the current markee They argue in their brief: First, M& T should have communicated downside hedging options to Petitioners as part of the November 2001 presentation, or at least once Tyco's stock price began declining precipitously in early 2002. Second, and more importantly, when M& T finally did recommend a downside hedging mechanism for the first time on June 12, 2002, Stauffer failed to adequately test the stop-loss trigger price that he recommended to reasonably ensure it would not trigger based solely on intraday market volatility. The individual trustees contacted the Bank on June 13, 2002, and expressed displeasure that Tyco stock had been sold. Brenner, Sr., told Gority that he did not understand the stop-loss order, and hung-up on him, which was something he had never done. Gority wrote a memorandum stating that Brenner said he "did not understand that we had explained the stop-loss to him and that he thought we will not sell shares below $9.00 per share." Curt Stauffer testified that he explained the stop- loss order to Brenner, Sr.: "[t]hat it was outside of a normal one day trading volatility of the stock. So therefore, just normal market ups and downs would not necessarily was not within the standard of care required of it as a fiduciary. 3 M& T Bank had repeatedly recommended diversification of the trust assets well before the Tyco stock was selling at $57 per share in January, 2002. In February, 2002, it was selling around $35. In May, around $20. -9- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 trigger the stop-loss." The individual trustees argue that this explanation was deficient because of the failure "to back test the $9.00 trigger price in the existing market and explain that a trigger price set 15% below current trading price would have triggered on three of the last seven trading days." On June 12, Tyco opened at $10.90 and closed at$10.15.4 The primary duty of a trustee is the preservation of the assets of the trust and the safety of the trust principal. In re Estate of Lychos, 323 Pa. Super. 74(1983). A trustee is obligated to exercise a standard of care which a person of ordinary prudence would practice in the case of that person's own estate. See In re Estate of Scharlach, 809 A.2d 376 (Pa. Super. 2002). If a fiduciary has a greater skill than that of a person of ordinary prudence, then the standard of care must be judged according to the standard of one having this special skill. Estate of Pew, 655 A.2d 521 (Pa. Super. 1994). We agree with the auditor that M&T Bank, as the corporate fiduciary, owed a higher standard of care than an individual of ordinary prudence. Given the state of the market and Tyco stock, the recommendation by the Bank to sell the stock did not fall 4 On June 3, 2002, the high was 18.800 and the low was 15.600. On June 4, the high was 16.800 and the low was 15.550. On June 5, the high was 17.750 and the low was 16.910. On June 6, the high was 17.300 and the low was 14.400. On June 7, the high was 12.550 and the low was 9.450. On June 10, the high was 11.750 and the low was 10.300. On June 11, the high was 11.250 and the low was 10.500. -10- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 below the standard of care of a corporate fiduciary.5 The Bank had the approval of the individual trustees at a stop-loss of $9.00. The Bank was not negligent based on the complaints of the individual trustees about the execution of that order so as to support their claim for a surcharge because the stock was sold. III. The Auditor Did Not Discuss M& T's Failure to Advise Petitioners that It Could "Reverse" the Disputed Sell Orders, and Did Not Make Adequate Findings of Fact on This Issue to Reach a Conclusion of Law. Under trading regulations, M& T Bank could have reversed the sale of the stock for three days after June 12, 2002. The Bank did not advise the individual trustees of that possibility. Nor did the individual trustees request that the Bank reverse the sale. The individual trustees argue in their brief: Once M& T was put on notice on the morning of June 13 that its co- trustees were upset and concerned, and specifically asserted that they had not understood what they had allegedly authorized the prior day, M&T was obligated to at least notify Petitioners of their options including the three-day window for reversing the transactions. Even if the Bank should have notified the individual trustees that the sale of the Tyco stock could have been reversed in three days, it does not support their claim that such a failure warrants a surcharge as there was no breach of a fiduciary duty in having 5 Margaret B. Bushey and Joseph D. Brenner, Jr., the individual trustees of the Grandchildren's Trust, sold 40% of Tyco stock in that trust in 1999 after discussions with the co-trustee, M& T Bank. -11- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 the stock sold in the first place. Whether the sale could have been reversed, seemingly pursuant to an agreement among the trustees, does not turn that sale into a breach of a fiduciary duty on the part of the Bank. -12- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 IV. The Auditor Failed to Consider or Rule on Petitioners' Claims Against M& T for Refusing to Transfer the Trust Assets to the Lawfully Appointed Successor Trustee The trust instruments allow the individual trustees authority to remove M& T Bank and to appoint a successor institutional trustee. The individual trustees appointed Orrstown Bank as a successor trustee, and on September 30, 2003, gave M& T Bank notice and a demand to transfer assets of all of the trusts. M& T Bank has not transferred the assets. The individual trustees maintain that the Bank breached a fiduciary duty in failing to transfer the assets to the Orrstown Bank, and that the trusts have been damaged as a result. On October 24,2003, M&T Bank filed accounts seeking confirmation and a proposed distribution to Orrstown Bank to become the successor trustee.6 Exceptions were filed to each account based on the claims made in this litigation. The accounts were not confirmed as an auditor was appointed.7 The 6 Joseph D. and Jane W. Brenner Trust, No. 21-03-879, First and Final Account for period between December 5, 1994 to September 25, 2003; Jane W. Brenner Trust UWO "B", No. 21-03-881, First and Final Account for period between August 10,1998 to September 25,2003; Jane W. Brenner Trust UWO "C", No. 21-03-881, First and Final Account for period between August 10, 1998 to September 25, 2003; Nancy B. Blakely, No. 21-03-883, First and Partial Account for period between May 21, 1985 to September 25, 2003. 7 M& T Bank attempted to obtain a release from the individual trustees that it felt would protect it if it transferred the assets before there was a confirmed account and an order of distribution. The individual trustees would not enter into a release acceptable to the Bank. -13- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 auditor has recommended no surcharge, and that the accountings filed by the Bank should be confirmed with distribution directed in accordance with the accounts. The Bank's refusal to distribute the trust assets prior to such confirmation as provided for in Pa. O.C. Rule 6.11 (a), does not constitute a breach of fiduciary duty warranting a surcharge. EXCEPTION OF M&T BANK Having successfully defended its account, M& T is entitled to recover its attorney fees from the Trust. In Pennsylvania, attorney fees may only be awarded in a particular case if there exists an express statutory authorization, a clear agreement by the parties, or some other established exception to the general rule that each party bears its own costs. Merlino v. Delaware County, 728 A.2d 949 (Pa. 1999). Without discussion, the auditor made the following Conclusion of Law: "M& T is not entitled to recover the cost of its defense in these matters." M&T Bank maintains that it is entitled, as a matter of law, to attorney fees in its successful defense of the claims made against it. There is an exception to the general rule regarding an award of attorney fees set forth in In re Coulter's Estate, 379 Pa. 209 (1954), where the Supreme Court stated: We also conclude that the court below did not err in allowing the attorney for the accountant (trustee) a fee out of the trust assets in the sum of $2,000 for his services for and in behalf of Richard Coulter. As this Court stated in Wormley Estate, 359 Pa. 295, 300: "It is well -14- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 established that whenever there is an unsuccessful attempt by a beneficiary to surcharge a fiduciary the latter is entitled to an allowance out of the estate to pay for counsel fees and necessary expenditures in defending himself against the attack." The individual co-trustees argue in their briefs that this exception is not applicable because: It is undisputed that each of the Petitioners is a beneficiary of one or more of the trusts. However, Petitioners are also the co-trustees of all of the trusts at issue, they brought suit against M&T as co-trustees to fulfill those obligations, not in their capacity as beneficiaries. Brenner, Sr., is the life beneficiary under the "Children's Trust," with Brenner, Jr., Bushey and the two other children being the remaindermen. The children are the life beneficiaries under the "Grandchildren's Trusts," with the grandchildren being the remaindermen. In In re Browarsky's Estate, 437 Pa. 282 (1970), Lewis Sheppard and Dora Foster were the executors and trustees under the will of decedent. The will provided for devises and bequests to, among others, Sheppard and Foster. A final decree of distribution was entered to which the residuary beneficiaries filed exceptions to surcharge the co-executors. The exceptions were dismissed by the Orphans' Court and affirmed on appeal. Thereafter, the attorneys who served as counsel in opposition to the attempted surcharge petitioned for allowance of their fees to be paid by the estate. Because any payment by the estate would be drawn from the residue, the residuary legatees contested the petition. The Orphans' Court awarded attorney fees. -15- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 -16- No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 The order was affirmed by the Supreme Court of Pennsylvania, which stated: We begin our consideration with an explanation of why it was appropriate for the attorneys for the executors to seek payment of their fees from the estate. The executors were placed in the position to be sued because of duties they had performed for the estate. That being the case, it would be unjust to require them personally to bear the reasonable costs of the defense of suits brought against them solely by reason of their positions as executors. "It is well established that whenever there is an unsuccessful attempt by a beneficiary to surcharge a fiduciary the latter is entitled to an allowance out of the estate to pay for counsel fees and necessary expenditures in defending himself against the attack [citing cases]." Wormley Estate, 359 Pa. 295, 300-01, 59 A. 2d 98, 100 (1948). Accord: Coulter Estate, 379 Pa. 209, 108 A. 2d 681 (1954). Thus, it is clear that the estate was obligated to pay the reasonable costs of defending against the attempted surcharge of the executors by the residuary beneficiaries ... (Emphasis added.) That reasoning applies in the present case. Quibbling about whether the Brenners, who are beneficiaries of the trusts, sought a surcharge in their capacity as co-trustees, is of no significance. M& T Bank, the fiduciary, has successfully defended their claims for a surcharge. It is entitled to an allowance out of the trust estates to pay its attorney fees. Rather than return the issue to the auditor we will resolve it in this court. For the foregoing reasons, an interim order will be entered. Once the issue involving attorney fees is resolved a final order will be entered, pursuant to this opinion, dismissing the exceptions of the individual trustees to the auditor's report, and -17 - No. 21-2004-087 No. 21-2003-879 No. 21-2003-881 No. 21-2003-881 No. 21-2003-883 awarding attorney fees.8 INTERIM ORDER OF COURT AND NOW, this day of May, 2005, IT IS ORDERED: The exception of M&T Bank to the Auditor's Report, IS SUSTAINED. M&T Bank shall file and forward to this judge a petition with a Rule to show cause why its attorney fees should not be granted. The petition shall detail those fees. If the Rule is answered and the fees requested are challenged on the basis of reasonableness or necessity a hearing will be scheduled. Otherwise, the Rule will be made absolute and an order awarding the attorney fees will be entered. By the Court, Edgar B. Bayley, J. William F. Martson, Jr., Esquire 1600 Pioneer Tower 888 S. W. Fifth Avenue Portland, Oregon 97204-2009 Mark D. Bradshaw, Esquire P.O. Box 11670 Harrisburg, PA. 17108-1670 :sal 8 We will not at the same time order the accounts confirmed and distribution even though the exceptions will be dismissed. Amended, updated accounts and requests for distribution will thereafter have to be filed. -18-