Petition for Writ of Certiorari — Hummel v. Mont Pelerin Corp., N. V.

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SA =6 14 | To, ' mo —" US.

QCT 17 1984

ALEXANDER L. STEVAS,

CLERK

No.

In the Supreme Court

OF THE

United States

OctorER TERM, 1984

SatLy Corp HuMMEL, VaLLey Bank or Nevapa, Harvrco,

Peter Russet, Krrk Hummer and Errett ALLEN HuMMEL,

Petitioners,

VS.

Mont Pevertn Corporation, N.V.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT, DIVISION FOUR

AFTER DENIAL OF PETITION FOR HEARING BY THE

SUPREME COURT OF THE STATE OF CALIFORNIA

Paut M. Manonry

Jones, MaHoney & Brayton

100 Pomona Mall W., Suite 506

Pomona, California 91766

Telephone: (714) 623-2411

Attorneys for Petitioners

Bowne of Los Angeles, Inc., Law Printers. (213) 742-6600.

QUESTIONS PRESENTED

1. Whether or not Article I, Section 10 of the United

States Constitution, which prohibits a state from enacting

laws impairing existing contract rights, has been violated

by a California court’s ordering a sale of California real

property contained in a trust created in Illinois in 1935,

contrary to the express terms of the trust, said order of the

court being made pursuant to California Code of Civil

Procedure, Sections 872.820 and 872.840 adopted in 1/76.

2. Whether or not the due process clause of the United

States Constitution has been violated by a California court’s

ordering a sale of California real property contained in a

trust created in Illinois in 1935, contrary to the express

terms of the trust, said order of the court being made pur-

suant to California Code of Civil Procedure, Sections

872.820 and 872.840 adopted in 1976.

3. Whether or not Article I, Section 10 of the United

States Constitution and/or the due process clause of the

United States Constitution have been violated by the retro-

active application by a California court of a 1976 California

statute and the ordering of a sale of California real property

contained in a trust created in Illinois in 1935, which trust

prohibits the sale of any trust assets without the consent

of the investment consultant to the trust (Petitioner

SALLY CORD HUMMEL).

LIST OF PARTIES -

Petitioners herein were the appellants in the Supreme

Court of the State of California and defendants in inter-

vention in the Superior Court for the County of Los An-

geles, State of California.

Respondent herein was respondent in the Supreme Court

of the State of California and plaintiff in intervention in

the Superior Court for the County of Los Angeles, State of

California.

ee te lll

iii

TABLE OF CONTENTS

Questions Presented

List of parties

Table of contents |

Opinion below

Jurisdiction

Relevant constitutional provisions and statutes

Statement of the case

Stages at which the federal question was raised and

preserved

Argument

California Code of Civil Procedure Sections 872.820

and 872.840, adopted in 1976, which allow property in

an express trust to be sold, cannot constitutionally

be applied to the 1935 Cord Trust

A. Article I, Section 10 of the United States Con-

stitution prohibits states from enacting laws

impairing contracts, and thus the state court

decision authorizing a forced sale of real prop-

erty contained in the 1935 Cord Trust must be

overturned because the Trust prohibits such a

sale + Gre Ae |

B. If the real property contained in the 1935 Cord

Trust is sold, the trust corpus will be depleted

because of horrendous tax consequences

C. Forcing the trustee of the 1935 Cord Trust to

sell real property contained in the Trust is con-

trary to the express terms of the trust and

violates substantive due process |

Page

‘ IT

The relaxed standard as to when partition by sale is

allowed, as provided in California Code of Civil

Procedure Sections 872.820 and 872.840 adopted in

1976, cannot be constitutionally applied to the 1935

Cord Trust _ . | as ae

Conclusion 21

INDEX TO APPENDICES

Page

Appendix A. Notice of Tentative Decision (C.C.P.

632) .... TPO ere hy ae: ....... App. p. A-1

Appendix B. heisilsitnes Judgment of Partition ... B-1

Appendix C. Opinion of the Court of Appeal, Second

Appellate District Bere rere ere C-1

Appendix D. Order. Petition for dessa Beate’ D-1

Appendix E. Order. Hearing Denied... ee ecg

Appendix F. Order for Substitution of Intervention

Defendants ......... | io .. Fl

Appendix G. 1935 Cord —_— se veR Ss | G-1

Appendix H. 1948 Amendment to 1935 Cord Trust H-1

Appendix I. Gillies’ Trust... See he I-1

Appendix J. Relevant Portions of Motion for New

Trial, Motion to Vacate Judgment and Enter Differ-

ent Judgment; Petitioners’ Petition for Rehearing

in Court of Appeal; and Petition for Hearing in

California Supreme Court, All Documenting the

Raising of the Constitutional Issue to ee

‘TABLE OF AUTHORITIES CITED

Cases Page

Allied Structural Steel Co. v. Spannaus, 438 U.S. 234,

07 L.Ed.2d 727, 98 S.Ct. 2716 (1978) | 15, 18

Edwards v. Kearzey, 96 U.S. 595, 6 Otto. 595, 24 L.Ed.

793 (1877) : ; 14, 20

Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 78

L.Ed. 413, 54 S.Ct. 231 (1934) ee 15

Umited States Trust Co. v. New Jersey, 431 U.S. 1,

02 L.Ed.2d 92, 97 S.Ct. 1505 (1977) 15, 18

Constitution

United States Constitution, Article I,

Section 10 , 4&4 12 Zl

United States Constitution, Fourteenth Amendment . 4, 13

Statutes

California Code of Civil Procedure, Sections 872.820

and 872.840 ...._.. Sere <2 = | B

California Revenue and Taxation Code Section 17953

se Pee rey ie Ceres Ss Oh

28 U.S.C. Section 1257(3) _ . +

Regulations

Internal Revenue Regulations, Sections

26.2601-1(b)(1)(i) and 26.2601-1(a)(5) ... ..... 4, 16

Other Authorities

Hochman, The Supreme Court and the Constitution-

ality of Retroactive Legislation, 73 Harv.L.Rev. 692

(1960) | rey 18

No.

In the Supreme Court

OF THE

United States

Qctorer TERM, 1984

SaLLy Corp HumMeEt, Vatiey Bank or Nevapa, Hartco,

Perer Russet, Kirk HumMmet and Erretr ALLEN HumMeEt,

Petitioners,

vs.

Mont Pevertn Corroration, N.V.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT, DIVISION FOUR

AFTER DENIAL OF PETITION FOR HEARING BY THE

SUPREME COURT OF THE STATE OF CALIFORNIA

SALLY CORD HUMMEL, VALLEY BANK OF NE-

VADA, HAFTCO, PETER RUSSELL KIRK HUM-

MEL and ERRETT ALLEN HUMMEL, your Petitioners,

respectfully pray for a Writ of Certiorari to the Court of

Appeal of the State of California, Second Appellate Dis-

trict, Division Four, after denial of petition for hearing by

the California Supreme Court.

OPINION BELOW

This Petition for Certiorari follows the affirmance of a

judgment entered by the trial court in favor of Respondent

allowing partition by sale of property located in Beverly

Hills, California. The property, near the intersection of

Rodeo Drive and Wilshire Boulevard, is extremely valu-

able and is a potential site of a luxury hotel. It has been

in the E. L. Cord family since 1951. A description of the

property (hereinafte’ “Property”) is located on page 6

hereof.

In October of 1977, Douglas A. Scott (appellant in the

lower court action but not joining in this Petition for Cer-

tiorari and hereinafter “Scott”), who held a 2% interest in

the Property, filed a lawsuit against First National Bank of

Nevada (hereinafter “FNB”) and United California Bank

(hereinafter “UCB”), who were trustees of a trust created

by E. L. Cord in 1935 (hereinafter “1935 Trust”) that held

the majority interest in the Property, and L, Inc., a Nevada

corporation that managed the Property. L, Inc. was a

wholly-owned corporation of E. L. Cord. Scott’s lawsuit

alleged that the Property had been mismanaged. In April

of 1978, Respondent acquired from certain of the trusts

that also held interests in the Property a 65% interest in

the Property and, in addition, purchased Lots 752 through

754 from the Estate of E. L. Cord. Respondent’s purchase

of the 65% interest in the Property was contingent on its

being able to buy 100% of Lots 752 through 754. In

November of 1978, Respondent intervened in the Scott

lawsuit by filing a Complaint-in-Intervention for parti-

tion against FNB as trustee of the 1935 Trust as

well as naming SALLY CORD HUMMEL (hereinafter

“HUMMEL”), PETER RUSSELL KIRK HUMMEL

(hereinafter “PETER”), ERRETT ALLEN HUMMEL

(hereinafter “ERRETT”), UCB (the subtrustee holding

title to the Property on behalf of FNB), Virginia Kirk

Cord (HUMMEL’S mother), Seott and Leonard Olinger,

all of whom had an interest in the Property. HUMMEL,

PETER and ERRETT answered the Complaint-in-Inter-

vention and cross-complained against FNB and others con-

tending, among other things, that FNB mismanaged the

1935 Trust and breached their fiduciary duty to HUMMEL,

PETER and ERRETT in many areas, one of the principal

ones being facilitating the sale of Lots 752 through 754

and the 65% interest in the Property to Respondent with-

out protecting HUMMEL, PETER and ERRETT.

The HUMMEL and Scott actions against FNB were

severed from the partition action and proceeded to trial

first before the Honorable Lester E. Olson, judge of the

Los Angeles Courty Superior Court. Prior to trial,

Security Bank of Nevada became the trustee of the 1935

Trust and Seck & Co. became the subtrustee. After trial,

Judge Olson filed his Notice of Tentative Decision allowing

Respondent to partition by sale. (Appendix A)

Petitioners and Scott filed a motion for new trial and a

motion to vacate judgment. The trial court denied the

motion for new trial but granted in part the motion to

vacate judgment and enter new judgment. The new judg-

ment was entered because the trial court found that insuffi-

cient evidence had been introduced to justify the partition

of the mineral and hydrocarbon rights. (Appendix B)

The new judgment provided for, among other things, parti-

tion by sale of the real and personal property with the

exception of mineral and hydrocarbon rights 500 feet below

the surface.

A notice of appeal was filed by all Defendants except

Olinger and Virginia Cord.

The California Court of Appeal affirmed the judgment

of the trial court. (Appendix C) Petition for Rehearing

was filed by Petitioners and Scott and denied by the Court

of Appeal. (Appendix D) A Petition for Hearing was

filed with the California Supreme Court and the Petition

was denied. (Appendix E) On September 14, 1984, Judge

Olson signed an order substituting Valley Bank of Nevada

as trustee and Haftco as subtrustee of the 1935 Cord Trust

in place of Security National Bank of Nevada and Seck &

Co. (Appendix F)

JURISDICTION

The decision of the Court of Appeal upholding the trial

court judgment of which review is sought herein was made

and entered on May 23, 1984 (Appendix C) and became

final by denial of a petition for rehearing on June 11, 1984.

The California Supreme Court denied the Petition for

Hearing on July 25, 1984. (Appendix E)

The jurisdiction of the Court is invoked under Title 28,

U.S.C. § 1257(3).

RELEVANT CONSTITUTIONAL

PROVISIONS AND STATUTES

California Code of Civil Procedure Sections 872.820, 872.840

California Revenue and Taxation Code Section 17953.

Internal Revenue Regulations Sections 26.2601-1(b) (1) (i)

and 26.2601-1(a) (4).

Constitution of the United States, Article I, Section 10 and

Fourteenth Amendment.

STATEMENT OF THE CASE

On August 21, 1935, E. L. Cord, a renowned and wealthy

entrepreneur, created a $100,000 inter vivos trust naming

himself as trustee. (Appendix G) This trust contained

four $25,000 accounts with each account designated for one

of four beneficiaries: His daughters Sally Cord Hummel

Rat Nae were

6 eT ita

(Petitioner herein) and Nancy Phelps, his wife Virginia

Cord, and his son Charles Cord.

On October 18, 1948, EK. L. Cord executed an aisles

to the 1935 Trust (hereinafter “1948 Amendment”) entitled

“Appointment of New Trustee Under Trust Indenture”

designating the First National Bank of Chicago as the suc-

cessor to K. L. Cord as trustee for the 1935 Trust. (Appen-

dix H) That document also provided that “[e]ach bene-

ficiary of a trust fund who is now, or who shall hereafter

become, twenty-five (25) or more years of age shall be and

is hereby appointed Investment Consultant of his or her

trust fund.... [f] The Trustee shall not at anytime or

times, whether or not there is an Investment Consultant

or Consultants qualified and acting as hereinabove pro-

vided, make any sale or investment of any property or

money comprising any trust fund, except upon the written

approval of such Investment Consultant or Investment

Consultants. . . .” This provision gave each beneficiary

control over their individual trust accounts.

In January 1951, E. L. Cord acquired title to the Property

that is the direct subject of this action. Three to four years

later, he acquired three lots which are contiguous to the

Property but are not the direct subject of this action. The

Property consists of eleven lots on a sixteen-lot parcel. It

may be diagramed as follows:

DRIVE

LASKY

CHARLEVILLE BLVD.

A medical office building (the Beverly Hills Medical

Building) is located on Lots 755, 756 and 757. The remain-

ing lots (747 to 750 and 758 to 761, inclusive) are all occupied

by a parking lot. It is only Lots 747 to 750 and 755 to 761,

inclusive, and the property rights to the adjacent alley that

are the direct subject of this action. Lot 751 was purchased

from an unrelated third party by a related entity of

Respondent, Belvedere Corporation, just prior to Respond-

ent’s purchase of its interest in the Property, and Respond-

ent purchased from the Estate of E. L. Cord Lots 752

through 754 at the time it purchased its interest in the

Property. Lots 751 through 754 are relevant if the trial

court’s decision ordering the Property to be sold is upheld.

On March 1, 1955, E. L. Cord placed the Property into

a land holding trust with Coll Gillies as trustee (hereafter

“Gillies trust”). (Appendix I) Each of the four subtrusts

of the 1935 Trust was given a 10% beneficial interest in the

Gillies trust. A 10% beneficial interest was also given to

trusts established for Susan Pereira and Christopher Cord.

A 1% beneficial interest was given to trusts established for

Meredith Lawrence, Gene Quinney and Katherine Olinger.

K. L. Cord was the beneficial owner of the remaining 37%.

In May of 1956, Mr. Cord transferred an additional 5%

beneficial interest in the Property to each of the four bene-

ficiaries of the 1935 Trust and to the Pereira trust. He

transferred a 3% interest each to the Charles Cord, II, trust,

the Joanne Cord Davis trust and to Lola Mae Thorpe

Smith. This left E. L. Cord with a 3% beneficial ownership

in the Property.

The Gillies trust originally provided that the beneficial

owners of 66°4% interest in the Property had the power

to give the trustee instructions regarding the management

and control of the trust property.

On September 19, 1969, William K. Stevens, who had

been acting trustee of the Gillies trust, resigned, and FNB

was appointed as successor trustee. FNB also became the

successor trustee of the 1935 Trust at approximately the

same time. UCB was appointed subtrustee to hold title

to the land in California.

In 1968 or 1969, E. L. Cord formed C, Inc. In 1970, he

transferred to it the three lots which are contiguous to the

Property. At approximately this same time, E. L. Cord

formed L, Inc. In 1973, C, Ine: replaced UCB as the legal

title holder of the Property. In 1976, it was replaced in this

function by L, Inc.

On March 5, 1973, FNB executed a lease and management

agreement with L, Inc. whereby L, Inc. agreed to manage

the medical clinic. Charles Cord, as an officer of L, Inc.,

was primarily responsible for managing the clinic. Ed

Neuhoff, E. L. Cord’s long-time attorney, was also an officer

of L, Ine.

In January of 1972, E. L. Cord died, leaving an estate

valued at approximately $39 million, including the 3% bene-

ficial ownership of the Property. Also left in his Estate

was the stock of ©, Inc., which in turn held title to the three

lots contiguous to the Property.

On March 1, 1976, the Gillies trust expired by its own

terms, and the legal title to the Property was transferred

to the beneficial owners under that trust. In 1976, the officers

of L, Inc. decided that they no longer wanted to manage

the Property due to dissension among the beneficiaries.

FNB as the holder of legal title to the Property purchased

the stock of L, Inc. on behalf of the beneficial owners against

the wishes of HUMMEL. Mr. Gardner (the trust officer

at FNB who administered HUMMEL’S trust) and Mr.

Ponton (the trust officer at FNB who administered Phelps’

trust) became officers of L, Inc. and took over the respon-

sibility of managing the Property.

At about this time, several of the beneficiaries of the

various trusts owning an interest in the Property expressed

their desire to sell their interest in the Property. Several

offers to buy the Property were rejected. HUMMEL did

not want to sell. To aid certain beneficiaries of the 1935

Trust that wanted to sell the Property, L, Inc. and FNB

(through Gardner and Ponton acting in their conflicting

dual roles as trustees and managers) made .a decision to

accommodate those beneficiaries who wanted to sell their

1935 Trust interests in the Property by engaging in a man-

agement policy of (1) renting office space below market

value; (2) entering into short term leases or no leases; and

(3) leaving space vacant, HUMMEL contends that not only

did those actions harm her interest in the 1935 Trust, but

they also violated the Management Agreement. All of this

was done intentionally by FNB, Gardner and Ponton and

worked to the detriment of HUMMEL. With few exceptions,

tenants were on three-year leases commencing January 1,

1974, and ending December 31, 1976. All of those leases

except the few where options were provided became month-

to-month tenancies on January 1, 1977 at the same rent as

was charged January 1, 1974. The reason that the rent was

not raised by L, Inc. (FNB) was to facilitate the sale of the

Property. Incredibly, space was left vacant and rents re-

mained static from 1974 through June of 1979 in a real

estate market that escalated faster than probably any real

estate market in the world. In addition, FNB compounded

its action by engaging in a course of conduct wherein they

consistently wrote and called HUMMEL and attempted to

coerce her into selling her interest in the Property by

telling her:

1. They would resign as trustee;

2. The Property was not productive, while at the same

time not telling her that the reason the Property was not

productive was because FNB was holding down income.

FNB advised HUMMEL that she would incur capital gains

expenses because of the fact that the Property was not

productive; and

3. Engaging in conversation wherein Gardner felt that

HUMMEL was going to have to be “forced” to sell. In addi-

tion, despite repeated requests by SCOTT and HUMMEL,

F'NB refused to secure a proper appraisal of the Property

while at the same time advising HUMMEL that it ought to

be sold for the price offered by prospective purchasers.

On March 8, 1978, Respondent agreed to purchase a 34%

interest in the Property. On March 20, 1978, it agreed to

purchase an additional 31% interest, In both of these pur-

chase agreements, Respondent included an addendum which

provided that the “[s]eller has no information or knowledge

of any written or oral agreement relating to the portion of

the Beverly Hills Medical Building or any portion thereof

being sold hereby which would prohibit or in any way

impede a court-ordered partition of the Beverly Hills Med-

ical Building or any portion thereof, either in kind or by

a court-ordered sale.” HUMMEL was no* advised that FNB

was taking this position nor was she advised that FNB was

signing a document to that effect. The beneficial owners of

trusts that had an interest in the Property sold gave similar

warranties individually to Respondent. Title to the 65%

interest in the Property encompassed by the above two

agreements was transferred to Respondent on May 4, 1978.

Respondent agreed to purchase the 3% interest in the

Property held by the E. L. Cord Estate but the Nevada

Probate Court allowed overbidding and Virginia Cord,

E. L. Cord’s wife, purchased the Property. Respondent’s

purchase of the 65% interest was contingent on its purchas-

ing the three lots contiguous to the Property. Respondent

succeeded in purchasing the three lots. The sale of the

three lots enabled Charles Cord to sell his and his chil-

dren’s undivided interests in the Property held in their

trusts to Respondent. In March of 1979, Respondent ac-

quired an additional 4% interest in the Property, bringing

its total in the Property to 69% by the time of trial.

The purchase documents signed by Respondent, as well

as the certificates signed by the investment consultants of

the other trusts that sold, indicate that trusts, including

the 1935 Trust, were selling interests in the Property. Also,

one of the purchase documents was drafted by Guild, Hagen

& Clark, Ltd., the attorneys for the Phelps’ 15% that was

selling. Bruce Glickfield (Respondent’s attorney) testified

at trial that he did not ask Phelps’ attorneys to see the trust

instrument so that he could make his own independent

evaluation as to the effect of the language in the 1935 Trust

and 1948 Amendment and both Robert and Nancy Phelps

and Charles Cord, in their depositions testified that Re-

spondent did not ask to see the 1935 Trust or the 1948

Amendment. Also, at no time did Respondent ask HUM-

MEL if it could see the 1935 Trust nor did it ask her whether

or not she felt that Respondent would be prohibited from

partitioning. Clearly, Respondent had actual and con-

structive notice of the 1935 Trust and its terms.

Also, on March 9, 1978, prior to Respondent’s purchase

of its interest in the Property, Bruce Glickfield wrote a

letter to Gardner at FNB requesting that no leases be

entered into until Respondent purchased its interest. Gard-

ner acquiesced in this request, again against the interests

of HUMMEL’S interest in the 1935 Trust. He also failed

to inform HUMMEL that he had reached that decision.

This is important because Respondent contended at trial

that it had nothing to do with the alleged mismanagement

of the Property and yet it specifically requested that vacant

space not be rented, which was contrary to the best interests

of HUMMEL’s interest in the 1935 Trust. Significantly, in

May of 1978, after the sale to Respondent went through,

Respondent dictated its terms of management to FNB, and

FNB at that time completely reversed the position it had

taken prior to the sale to Respondent and indicated to

Respondent that long-term leases were appropriate.

The remaining interest holders in the Property refused

to sell. At the time of trial, the remaining 31 percent was

owned as follows: HUMMEL’S interest in the 1935 Trust

owned 15%, William Cord Hummel (HUMMEL’S son)

beneficially owned 144%, ERRETT (HUMMEL’S son)

beneficially owned 14%, PETER (HUMMEL’S son) bene-

ficially owned 2%, Virginia Michele Hummel Arrington

(HUMMEL’S daughter) beneficially owned 2%, Robert

Errett Arrington (HUMMEL’S grandson) beneficially

owned 1%, and Edgar S. Hummel (HUMMEL’S son)

beneficially owned 1%. Legal title to this 24% was held by

Seck & Co., the nominee of Security Bank of Nevada, the

trustee of the various trusts holding beneficial interests

in the Property. The remaining interests owned were 5%

by Leonard Olinger (a nonappellant) and 2% by SCOTT

and Albert Scott as joint tenants. Albert Scott is not a

party to this action but has stipulated that he is bound by

any partition the court orders. :

STAGES AT WHICH THE FEDERAL QUESTION WAS

RAISED AND PRESERVED

Petitioners resisted Respondent’s right to partition action

on many grounds, one of the principal ones being that under

California law and the 1935 Trust and the 1948 Amendment,

no property of HUMMEL’S in the 1935 Trust could be par-

titioned without HUMMEL’S consent. HUMMEL also

contended that to allow partition by sale, as contrasted from

division, of her property in direct violation of the terms

of the trust is.an unconstitutional impairment of her and

_ the beneficiaries’ contract rights and a taking of trust prop-

erty without due process. This was argued orally in the

closing argument at the trial, which was not reported, and

raised in writing in the Motion for New Trial and the ap-

peal. (Appendix J) The trial court rejected said conten-

tions and ordered a partition sale, and the trial court’s

decision has been upheld by the California Court of Appeals

and the California Supreme Court.

ARGUMENT

CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS

872.820 AND 872.840, ADOPTED IN 1976, WHICH AL-

LOW PROPERTY IN AN EXPRESS TRUST TO BE

SOLD, CANNOT CONSTITUTIONALLY BE APPLIED

TO THE 1935 CORD TRUST.

A. Article I, Section 10-of the United States Constitution

Prohibits States From Enacting Laws Impairing Con-

tracts, and Thus the State Court Decision Authorizing

a Forced Sale of Real Property Contained in the 1935

Cord Trust Must Be Overturned Because the Trust

Prohibits Such a Sale.

Article I, Section 10 of the United States Constitution

provides in pertinent part that:

“1. No State shall... pass any... law impairing

the obligation of contracts, ....”

The Fourteenth Amendment of the United States Con-

stitution provides in pertinent part that:

“...nor shall any State deprive any person of life,

liberty, or property, without due process of 4 eee

Section 872.820 of the California Code of Civil Procedure,

which is part of the California statutory scheme pertaining

to partition, reads as follows:

“Notwithstanding Section 872.810, the court shall

order that the property be sold and the proceeds be

divided among the parties in accordance with their

interests in the property as determined in the inter-

locutory judgment in the following situations:

“(a) The parties agree to such relief, by their

pleadings or otherwise.

“(b) The court determines that, under the circum-

stances, sale and division of the proceeds would be

more equitable than division of the property. For

purposes of making the determination, the court may

appoint a referee and take into account his report.”

Section 872.840 of the California Code of Civil Procedure

provides in pertinent part:

“(a) Where the property or an interest therein is

subject to an express trust, the court may, in its dis-

cretion, order that the property be sold.”

In the case at bar, California Code of Civil Procedure

Sections 872.820 and 872.840, adopted in 1976, cannot con-

stitutionally be applied to the 1935 Trust because to do so

would allow a court to order the sale of the real property

in the 1935 Trust even though the trustee is not authorized,

according to the terms of the Trust, to sell any Trust assets

without the consent of HUMMEL. This would unconstitu-

tionally impair the contractual obligations existing between

the‘trustee and the beneficiaries, thereby causing substan-

tial harm. In discussing what is included within the ambit

of Article I, Section 10, the United States Supreme Court

as far back as 1877 stated that:

“The obligation of a contract includes everything within

its obligatory scope. Among these elements nothing is

more important than the means of enforcement. This is

the breath of its vital existence. Without it the con-

tract as such in the view of the law ceases to be and

falls into the class of those ‘imperfect obligations’ as

they are termed which depend for their fulfillment

upon the will and conscience of those upon whom they

rest. The ideas of right and remedy are inseparable.”

Edwards v. Kearzey, 96 U.S. 595, 6 Otto. 595, 24 L.Ed.

793 (1877).

It is settled that the constitutional prohibition against

impairment of contractual obligations is not absolute, but

rather that contract rights, as all other property rights,

may be altered by legislation validly enacted under the

state’s police power. Home Bldg. & L. Assn. v. Blaisdell,

290 U.S. 398, 428, 434-436, 78 L.Ed. 413, 423, 426-428, 54

S.Ct. 231 (1934); Allied Structural Steel Co. v. Spannaus,

438 U.S. 234, 244-245, 57 L.Ed.2d 727, 736-37, 98 S.Ct. 2716

(1978).

Probably the single most important factor to be con-

sidered in determining whether a particular impairment

is constitutionally permissible is the nature and extent of

the impairment. “The severity of the impairment measures

the height of the hurdle the state legislation must clear.”

Allied Structural Steel Co. v. Spannaus, supra, 438 U.S. at

242-244, 57 L.Ed.2d at 734-736; United States Trust Co. v.

New Jersey, 431 U.S. 1, 22, 52 L.Ed.2d 92, 109-110, 97 S.Ct.

1505 (1977).

In the case at bar, when Cord created his Trust in Ulinois

in 1935 and later when he added the Beverly Hills property

to the Trust in the 1950’s (while it was still being admin-

istered in Illinois), there was no law in effect which would

have authorized a court to force a sale of Trust property

in the 1935 Trust in view of the Trust provision that there

could be no sale by the trustee without the consent of

HUMMEL. Even though the Court of Appeal has upheld

the trial court and held partition is available, that does not

mean that a court can constitutionally order the Property

sold (as contrasted from divided) in direct contravention

of the Trust provisions and in violation of the wishes of

the parties to the Trust. Usually cases of this type arise

because one or another of the parties to a trust want the

terms of the trust changed, but in this case all parties to

the Trust have consistently urged that the Property not be

partitioned, let alone sold.

There is no policy of the law violated by following the

express language of the 1935 Trust because upon HUM-

MEL’S death, the Trust assets are distributed to all of the

beneficiaries. Since the Property is marketable, the pro-

hibition against sale withovt HUMMEL’S consent is not

an illegal restraint on alienation. There is no other public

policy of the State involved, and thus a court-ordered sale

simply aids Respondent’s efforts to acquire property held

by the Cord family for 33 years to the detriment of HUM-

MEL and the other trust beneficiaries.

B. If the Real Property Cortained in the 1935 Cord Trust

Is Sold, the Trust Corpus Will Be Depleted Because

of Horrendous Tax Consequences.

In the case at bar, the impairment of the contract is sub-

stantial and any suggestion to the contrary is simply wrong.

The 1935 Trust is a valuable resource for estate planning

for the HUMMEL family because it pre-dates the effective

date of the generation-skipping tax. The generation-skip-

ping tax does not apply to generation-skipping transfers

from a trust that was irrevocable on June 11, 1976, except

to the extent that the transfer is made from corpus added

to the pre-existing irrevocable trust by any person after

June 11, 1976. INTERNAL REVENUE REGULATIONS,

§ 26.2601-1(b)(1)(i). Application and accumulated income

will not be considered additions to the corpus except to ‘he

extent that the appreciation or accumulated inec..2 results

from prior non-exempt additions to the corpus. INTER-

NAL REVENUE REGULATIONS § 26.2601-1(a) (5).

Basically what the generation-skipping tax does is to

impose a tax upon the death of an income beneficiary of a

trust which is equivalent to the tax which would have been

paid had the corpus of the trust been included in the taxable

estate of the income beneficiary. Thus, for example, if the

Trust had been created in 1977 instead of 1935, the entire

corpus of the 1935 Trust with respect to which HUMMEL

is entitled to income would be included in her estate when

she dies as if she owned it. This, of course, is not the case

with trusts such as the 1935 Trust, irrevocable on June 11,

1976.

Because of the fact that the 1935 Trust is a valuable

resource for estate planning purposes, it is not in the best

interests of the HUMMEL family that the corpus of that

Trust be diminished by the payment of income taxes. To

the extent that income taxes are reduced or eliminated,

additional funds are available for investment. These funds,

as well as the growth attributable to these funds, will pass

free of estate tax to HUMMEL’S issue. If, on the other

hand, the funds are used to pay income tax, then not only

those funds but, more importantly, the growth of those

funds will not be available for HUMMEL’S issue.

Naturally, it can always be said that funds paid for in-

come taxes will not be available for inheritance by future

generations. However, even though this is always undesir-

able from an estate planning point of view, it is particularly

undesirable when the funds paid as income taxes, and future

growth on those funds, would pass to future generations

free of federal estate tax.

In the case at bar, if HUMMEL had sold her 15% interest

for the $510,000 paid to each of the other beneficiaries for

their 15% (which HUMMEL contends is way below market

value), the tax to HUMMEL would have been approxi-

mately $165,000. Even though HUMMEL is a Nevada resi-

dent, California state tax would have to be paid. Revenue

and Taxation Code Section 17953 provides:

“Income of estates and trusts distributed or distrib-

utable to nonresident beneficiaries is income from

sources within this State only if distributed or dis-

tributable out of income of the estate or trust derived

from sources within this State. For the purposes of

this section, the nonresident beneficiary shall be deemed

to be the owner of intangible personal property from

which the income of the estate or trust is derived.”

HUMMEL chose, as investment consultant, to not incur

this liability and to accumulate the asset for her children.

This is an act of someone not selfishly accumulating and

spending cash for “her” benefit as she could do under the

terms of the 1935 Trust, but rather of someone using her

love for her children and business sophistication to provide

for her children by keeping an appreciating asset. As

‘investment consultant she has that right which would be

negated by a court-ordered partition sale.

A sale of the Property causes every party to the 1935

Trust to suffer a loss they don’t want. Thus, Code of Civil

Procedure Sections 872.820 and 872.840 cannot be con-

stitutionally used to allow a court to order the trustee to

sell the Property, and the Court of Appeal’s decision allow-

ing this is wrong and must be overturned.

C. Forcing the Trustee of the 1935 Cord Trust to Sell Real

Property Contained in the Trust Is Contrary to the Ex-

press Terms of the Trust and Violates Substantive Due

Process.

HUMMEL’S and the other beneficiaries’ rights under

the 1935 Trust cannot be revoked and thus are vested. The

1935 Trust is irrevocable and thus application of Sections

872.820 and 872.840 which in any way alters or abrogates

those rights violates the due process clauses of the United

States Constitution. Allied Structural Steel Co. v. Span-

naus, supra; United States Trust Co. v. New Jersey, supra.

See Hochman, The Supreme Court and the Constitution-

ality of Retroactive Legislation, 73 Harv.L.Rev. 692, 697

(1960).

In the case at bar, there is no interest of the State that

is advanced by forcing the 1935 Trust to sell the Property.

The Property is freely marketable, and a division in kind

will allow the Trust to keep its corpus intact without ad-

verse financial consequences. On the other hand, a sale only

benefits Respondent and causes immediate harm to the

Trust and thus constitutes a taking without due process

because the court’s decision will give precedence to the

alleged rights of a co-tenant to force a partition sale over

a pre-existing contractual right allowing HUMMEL to

prohibit a sale of Trust property without her consent.

II.

THE RELAXED STANDARD AS TO WHEN PARTITION

BY SALE IS ALLOWED, AS PROVIDED IN CALI.

FORNIA CODE OF CIVIL PROCEDURE SECTIONS

872.820 AND 872.840 ADOPTED IN 1976, CANNOT

BE CONSTITUTIONALLY APPLIED TO THE 1935

TRUST.

At the time E. L. Cord placed the Property in trust, the

law in effect at the time in California required that the

party seeking partition by sale (if the remedy of sale was

available) had the burden of showing that partition by

physical division would cause “great prejudice” to the

owners. Great prejudice had to be shown without resort

to unproved facts or judicial notice. Respondent presented

no evidence that great “prejudice” would result if the

Property were physically divided and thus did not meet

its burden of proof. No one disputes this.

The 1976 revision of the partition statute relaxed the

standard for allowing the sale of Property (if sale is

available, which Petitioners deny) by providing that a

court can order a sale if a sale is “more equitable” to the

ewners. Code of Civil Procedure §§ 872.810 and 872.020.

It is HUMMEL’S position that the 1976 Code revision can-

not affect the rights of parties to the 1935 Trust, and any

attempt to use the more relaxed standard would be

unconstitutional.

The Court of Appeal’s opinion states that the retroactive

application of Code of Civil Procedure Sections 872.820

and 872.840 {to Petitioners, which allowed the more equi-

table standard to be used, simply changed the nature of

remedy involved and was not unconstitutional. This state-

ment is clearly erroneous and contrary to holdings of this

Court. See Edwards v. Kearzey, supra. The characteriza-

tion of the relaxed standard as a remedy, even if true, does

not remove it from constitutional protection under the

United States Constitution.

The Court of Appeal, by authorizing the use of the “more

equitable” standard, has allowed property vested in the

Trust to be removed from that Trust against the wishes

of all of the parties to the Trust. Therefore, the application

of the “more equitable” standard is an impairment of the

obligation of contract and the taking of property without

due process law because Petitioners’ pre-existing contract

rights have been impaired by granting Respondent the

right to compel a sale.

CONCLUSION

It is essential that this Court grant certiorari in this

case. Many of the cases the Court hears deal with broad

issues of social importance, the determination of which

affect millions of people. This case does not fit that mold

but does represent an attempt by a state to use its laws to

impair pre-existing contract rights. The State of California

has no just reason to interfere with the 1935 Trust, and

their attempt to do so is such a flagrant violation of Article

I, Section 10 and the due process clause that certiorari

must be granted in order to prevent this.

For all of the above stated reasons, Petitioners respect-

fully request that this Petition for Writ of Certiorari be

granted.

Respectfully submitted,

Jones, MaHonEy & Brayton

Pau M. MaHoney

Attorneys for Petitioners

APPENDIX A

A- 1

Superior Court 9f the State of California for the County

of Los Angeles Douglas A. Scott, Plaintiff, vs. L, INC., et

al., Defendants. MONT PELERIN CORPORATION, N.V.,

Intervenor, vs. VIRGINIA KIRK CORD, et al., Dej saibente

in Intervention AND RELATED CROSS-ACTIONS.

No. EAC 25905 NOTICE OF TENTATIVE DECISION

(C.C.P. 632).

The court concludes from all of the evidence and the law

that Mont Pelerin is entitled to an interlocutory decree for

partition.

The court agrees with the position of Mont Pelerin urged

in its trial brief. Generally, amongst co-owners of property,

partition is a matter of right. In this case, the improved

real property is not capable of physical division. It must

be sold pursuant to the statutory partition procedures.

In this case, there is no defense to partition. There is no

express prohibition in any of the controlling documents.

No express waiver of the partition remedy exists, and none

can be implied from any of the documents, nor from the

other evidence.

Hummel makes much of the argument based on the trust

‘provision concerning the “investment consultant.” The court

draws a different conclusion from that urged by Hummel.

Said provision was designed to give each beneficiary greater

control and therefore greater alienability of any trust

property. E.L. Cord wanted to minimize taxation. He used

the trust vehicle to accomplish his purpose. Yet, he wanted

to restrain the power of the trustee (a necessary evil in

good estate planning) and used the “business consultant”

technique to give the beneficiaries effective control of their

property without defeating the tax planning.

As Mont Pelerin argues, E.L. Cord could have imposed

restraints on alienation but chose not to do so. Hummel,

A-2

at the outset of the trial introduced evidence of Cord’s

business acumen. The court concludes that Cord was a

brilliant, successful, and planning business man. This con-

clusion supports the court’s view that a prohibition of the

partition remedy cannot be implied.

There is no evidence of law to support the claim that

Mont Pelerin should be estopped from obtaining partition.

The corporation did nothing it was not entitled to do, and

Hummel did not rely on any conduct by Mont Pelerin to

her detriment.

The fact that a sale pursuant to the partition decree will

cause adverse tax consequences to Hummel is no defense.

Richmond v. Doffimeyer, 105 CA3d 745, does not support her

position. The fact that the court can conclude that the

trusts were part of a tax saving intention on Cord’s part

cannot be used as an argument against partition.

The court has examined the two additional cases cited

by counsel for Hummel in closing argument (Stoner v.

Nethercutt, 8 CA3d, 667, and MacFarlane v. Peters, 103

CA3d, 627), and they do not support her position.

The suggestion by Scott that partition is not necessary

because the court can order the receive. to sell the property

is rejected. The receivership is an interim procedure that

does not go to the substantive rights of the parties. ;

Counsel for Mont Pelerin shall prepare an Interlocutory

Judgment in accordance herewith.

DATED: May 3, 1982

LESTER E. OLSON

Judge of the Superior Court

APPENDIX B

B-1

DE CASTRO, WEST & CHODOROW, INC., RICHARD

W. HICKS, 10960 Wilshire Boulevard, Suite 1800, Los

Angeles, California 90024, Telephone: (213) 478-2541, At-

torneys for Plaintiff in Intervention, Mont Pelerin Corpor-

ation, N.V.

Superior Court of the State of California, for the County

of Los Angeles. Douglas Scott, Plaintiff, v. L. INC., FIRST

NATIONAL BANK OF NEVADA, et al., Defendants.

MON™ PELERIN CORPORATION, N.V., Intervenor, v.

VIRGINIA KIRK CORD, et al., Defendants in Interven-

tion, and Related Cross-Complaint.

Case No. EAC 25905 Transferred to Central District,

Interlocutory Judgment of Partition.

This matter came on for Trial on March 31, 1982, if De-

partment 31 of the above Court, the Honorable Lester E.

Olson, Judge presiding. Plaintiff in Intervention, Mont

Pelerin Corp., N.V., was represented by Richard H. Hicks

of the law firm of De Castro, West & Chodorow, Inc. De-

fendant in Intervention, Douglas A. Scott, was represented

by Albert S. Scott, Jr. Defendant in Intervention, Leonard

B. Olinger, was initially represented by Frederick L. Spin-

rad and thereafter by Leonard B. Olinger in propria per-

sona. Defendants in Intervention, Sally Cord Hummel,

Errett L. Hummel, Peter Russell Kirk Hummel, Security

Bank of Nevada and Seck & Co., were represented by Paul

M. Mahoney of the law firm of Jones, Mahoney & Brayton.

The complaint of Douglas Scott was dismissed prior to

commencement of the Trial. The cross-complaint of Sally

Cord Hummel, et al., was severed by order of the Court.

The cause of action for partition of real property raised

by the complaint in intervention was tried before the Court,

sitting without a jury, commencing on Wednesday March

31, 1982, and was completed on Tuesday, April 6, 1982.

The Court having taken the matter under submission on

oon

B-2

April 6, 1982, and having rendered its tentative decision

on May 3, 1982, in favor of the Intervenor, Mont Pelerin

Corp., N.V., entered its interlocutory judgment on June 3,

1982.

Thereafter, defendants in intervention filed a motion for

a new trial and a motion to vacate the judgment and enter

a new and differeat judgmen:, which motions came on for

hearing in Department 31 of the Court on July 21, 1982.

The Court having denied the motion for a new trial, and

having granted, in part, the motion to vacate the judgment

and enter a new and different judgment, now enters its

interlocutory judgment as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED:

1. Plaintiff in Intervention, Mont Pelerin Corp., N.V.,

is entitled to have the real property that is the subject of

this action (subject to paragraph 3 hereof), any leasehold

interests in the property (except for subsurface oil and gas

leases) and all personal property located at the property

partitioned.

2. The real property that is the subject of the complaint

in intervention, which is to be partitioned in accordance

with the terms of this interlocutory judgment (subject to

paragraph 3 hereof), is legally described as follows:

Parcel 1:

Lots 747 to 750 inclusive of Tract No. 7710, ir the

City of Beverly Hills, County of Los Angeles, State

of California, as per map recorded in book 83, pages

94 and 95 of Maps, in the office of the County

Recorder of said County, together with the north-

westerly half of that portion of that certain alley,

15 feet wide, as shown on said map, bounded south-

westerly by the southeasterly prolongation of the

B-3

southwesterly line of said lot 747 and bounded north-

easterly by the southeasterly prolongation of the

northeasterly line of said lot 750.

Parcel 2:

Lots 755 and 761 inclusive of Tract No. 7710, in the

City of Beverly Hills, County of Los Angeles, State

of California, as per map recorded in book 83, pages

94 and 95 of Maps, in the office of the County Re-

corder of said County, together with the southeast-

erly half of that certain alley, 15 feet wise, as shown

on said map, bounded southwesterly by the north-

westerly prolongation of the southwesterly line of

said lot 761, and bounded northeasterly by the north-

erly prolongation of the easterly line of said lot 755.

3. The property to be partitioned shall not include any

of the following described property interests, which are

specifically excluded from this order of partition and re-

served to the present owners thereof : “All oil, gas, mineral,

hydrocarbon ‘and related substances located on, under or

otherwise effecting the property below a depth of five

hundred feet under the real property described herein, with-

out the right of surface entry”.

4. Title to the property that is subject to this Inter-

locutory Judgment for Partition is held as follows:

Title Holder Percentage

Douglas A. Scott, a single man, and Albert

S. Scott, Jr., a married man, as joint

MR one a ny ee | 2%

Leonard B. Olinger ...... a 5%

Mont Pelerin Corp.,N.V................ 69%

B-4

Title Hclder Percentage

Seck & Co., a co-partnership, as nominee of

Security National Bank of Nevada, Trustee

for Errett Alan Hummel! Trust, Edgar

Stephen Hummel Trust, Wi'liam Cord

Hummel Trust, Peter Russell Kirk Hum-

mel Trust, Robert Errett Arrington Trust,

Virginia, Michelle Hummel Arrington

Trust, and Sally Cord Hummel Trust... 24%

TORAL .......:.. OP

5. A sale of the property as a single parcel would be

more equitable to the parties than a division of the property,

or a partial division of the property, and it is therefore

ordered that the property shall be sold in accordance with

the applicable provisions of the California Code of Civil

Procedure relating to actions for partition (C.C.P. §872.010,

et seq.).

6. Sidney Landis is appointed Referee to conduct the sale

of the property and to report to the Court on the completion

of the sale. The Referee shall post a bond in the amount of

$100,000.00, within seven days of any proposed sale of the

property that is the subject of the partition sale.

7. The sale shall be by public auction, conducted in such

manner as the Referee shall judge to be most beneficial to

the parties’ interest. Parcels 1 and 2 and the real and per-

sonal property shall be sold as a unit.

8. The sale shall be a cash sale with the successful bidder

paying ten percent (10%) of the purchase price down at the

time of bidding, the balance to be paid at the close of escrow.

The escrow shall be opened on such terms as the Referee

shall judge to be most beneficial to the parties’ interest.

B-5

9. In the event that any of the owners of the Property

become the purchasers of the property at the time of sale,

said owners may use their percentage ownership interest

in the property as an offset against the total purchase

price.

10. The proceeds of sale, after deducting the costs of sale

and the fee for the Referee, as approved by the Court, shall

be invested by the Referee in State of California or United

States Government obligations or interest-bearing accounts

in an institution whose accounts are insured by an agency

of the federal government for the benefit of the parties

hereto, subject to an accounting between the parties and

subject to further order of the Court.

11. The Court reserves until the time for entry of a final

judgment, the determination of the allocation of all other

costs of partition, including attorneys’ fees. The Court also

reserves jurisdiction to modify, change or supplement the

provisions of paragraphs 6 and 10 upon showing as is

deemed appropriate, for such time as is permitted by law.

DATED:

Lester E. Ouson

Judge of the Superior Court

APPENDIX C

C-1

In the Court of Appeal of the State of California,

Second Appellate District, Division Four. Mont Pelerin

Corporation N.V., Plaintiff and Respondent, v. Sally Cord

Hummel, et al., Defendants and Appellants. 2d Civil No.

70081 (Super. Ct. No. EAC 25905).

APPEAL from a judgment of the Superior Court of Los

Angeles County. Lester E. Olson, Judge. Affirmed.

Jones, Mahoney & Brayton and Paul M. Mahoney, for

Defendants and Appellants Sally Cord Hummel, Security

Bank of Nevada, Seck & Co., Peter Russell Kirk Hummel

and Errett Allan Hummel.

Albert S. Scott, Jr., for Defendant and Appellant Douglas

A. Seott.

De Castro, West & Chodorow, Inc., Richard H. Hicks and

Steven B. Jacobson, for Plaintiff and Respondent.

Defendants in intervention, Sally Cord Hummel, Security

Bank of Nevada, Seck & Co., Peter Russell Kirk Hummel,

Errett Alan Hummel and Douglas A. Scott, appeal from the

interlocutory judgment of partition entered on July 28,

1982.'

1An interlocutory judgment of partition is appealable. (Code Civ.

Proc., § 904.1, subd. (i).) All appellants except Scott purport to

also appeal from the minute order denying their motion for new

trial and partially denying their motion to vacate the judgment. The

order denying the motion for new trial is not appealable and to the

extent the motion to vacate the judgment was denied, it too is not

appealable. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d

865, 871.) Accordingly, to the extent appellants purport to appeal

from these orders, their appeal is dismissed. :

Mont Pelerin asserts that the appeal should be dismissed in regard

to Peter Hummel, Errett Hummell and as to Security Bank and

Seck to the extent they are trustees of those individuals’ trusts,

because appellants in their opening brief argue only with respect to

Sally Hummel’s right to prevent a partition. For the same reason,

Mont Pelerin asserts that the appeal of Douglas Scott who joined in

the other appellants’ brief should also be dismissed. Because we

affirm the judgment we need not, and do not, address this assertion.

C-2

The judgment was on the complaint for partition of real

property of plaintiff in intervention Mont Pelerin Corpora-

tion. The real property which is the subject of that com-

plaint is the Beverly Hills Medical Building located at 133

Lasky Drive in Beverly Hills. The judgment entitled Mont

Pelerin to have the subject real and personal property

partitioned subject to any leasehold interest and excepting

subsurface oil and gas rights. The court determined that

the property should be sold with a division of the proceeds

rather than having the property physically divided.

CONTENTIONS

Appellants raise the following six contentions on appeal:

“1. Under California law, respondent, as a successor in

interest to the beneficiaries of the 1935 trust from whom it

purchased its interest in the property, is subject to the

same prohibition of the right to partition as existed against

the original beneficiaries of the 1935 trust.

“2. Under California Law, a beneficiary of an active

express trust containing real property, such as the 1935

Trust, has no right to partition said trust property unless

all beneficiaries agree.

“3. Even if under some circumstances an active trust

containing real property can be partitioned, the 1935 trust

instrument prohibits partition and sale of individual trust

interests without the consent of the beneficiary of that

interest. The trial court, by holding to the contrary, has

rewritten the terms of the 1935 trust and added terms

inconsistent with its meaning and intent and caused harm

to appellants not intended by the creator of the trust.

“4, Evidence in addition to the language of the 1935 trust

instrument compels the conclusion that the trust property

in question cannot be partitioned.

C-3

“5. Even if partition is allowed in this case, there is

insufficient evidence to support the trial court’s order that

the property be sold rather than divided. To order it sold

would defeat the legitimate economic expectations of appel-

lants and cause horrendous and unwarranted tax conse-

quences.

“6. The trial court’s orders contained in paragraphs 5

through 10 of the interlocutory judgment are inappropriate

at this time and should be vacated because there was no

evidence before the court upon which it could base the

orders contained in said paragraphs.”

FACTS

The evidence adduced at trial demonstrates that on

August 21, 1935, E. L. Cord, created a $100,000 inter vivos

trust naming himself as trustee. This trust contained four,

$25,000 accounts with each account designated for one of

four beneficiaries. These beneficiaries were his daughters

Sally Cord Hummel and Nancy Phelps, his wife, Virginia

Cord, and his son, Charles Cord.

On October 18, 1948, E. L. Cord executed an “appoint-

ment of new trustee under trust indenture” designating the

First National Bank of Chicago as the successor to E. L.

Cord as trustee for the 1935 trust. That document also pro-

vided that “[e]ach beneficiary of a trust fund who is now,

or who shall hereafter become, twenty-five (25) or more

years of age shall be and is hereby appointed Investment

Consultant of his or her trust fund. ... [9] The Trustee

shall not at anytime or times, whether or not there is an

Investment Consultant or Consultants qualified and acting

as hereinabove provided, make any sale or investment of

any property or money comprising any trust fund, except

upon the written approval of such Investment Consultant

or Investment Consultants. ...” This provision gave each

beneficiary control over their individual trust accounts.

C-4

In January 1951, E. L. Cord acquired title to the subject

Beverly Hills real estate. A medical clinic and a parking

lot were located on the property. Three to four years later,

he acquired three lots which are contiguous to the subject

parcel but are not subject to this action.

On March 1, 1955, he placed the subject property into

a land holding trust with Coll Gillies as trustee (hereafter

Gillies’ trust). Each of the four subtrusts of the 1935 trust

was given a 10 percent beneficial interest in the Gillies’

trust. A 10 percent beneficial interest was also given to

a trust established for Susan Pereira and a trust estab-

lished for Christopher Cord. A 1 percent beneficial interest

was given to trusts established for Meredith Lawrence,

Gene Quinney and Katherine Olinger. E. L. Cord was the

beneficial owner of the remaining 37 percent. In May of

1956, Cord transferred an additional 5 percent beneficial

interest in the subject property to each of the four bene-

ficiaries of the 1935 trust and to the Pereira trust. He

transferred a 3 percent interest to the Charles Cord, II

trust, the Joanne Cord Davis trust and to Lola Mae Thorpe

Smith. This left E. L. Cord with a 3 percent beneficial

ownership in the subject property.

The Gillies’ trust originally provided that the beneficial

owners of 6654 percent interest in the property ha’ ue

power to give the trustee instructions regarding the * ...-

agement and control of the trust property.

On September 19, 1969, William K. Stevens, who had

been acting trustee of the Gillies’ trust resigned and the

First National Bank of Nevada (hereafter FNB) was ap-

pointed as successor trustee. FNB also became the suc-

cessor trustee of the 1935 trust at approximately the same

time. United California Bank (hereafter UCB) was ap-

pointed subtrustee to hold title of the land in California.

C-5

In 1968 or 1969, E. L. Cord formed C. Inc. In 1970, he

transferred to it the three lots which are contiguous to

the subject property. At approximately this same time,

BE. L. Cord formed L. Ine. In 1973, C. Ine. replaced UCB

as the legal title holder of the subject trust property. In

1976, it was replaced in this function by L. Ine.

On March 5, 1973, FNB executed a lease and management

agreement with L. Inc. whereby L. Inc. agreed to manage

the medical clinic. Charles Cord, as an officer of L. Inc.,

was primarily responsible for managing the clinic. Ed

Neuhoff, E. L. Cord’s longtime attorney, was also an officer

of L. Ine.

In January 1974, E. L. Cord died, leaving in his estate

the 3 percent beneficial ownership of the subject property.

Also left in his estate was the stock of C. Inc. which in turn

heid title to the three contiguous lots.

On March 1, 1976, the Gillies’ trust expired by its own

terms and the legal title to the subject property was trans-

ferred to the beneficial owners under that trust. In 1976,

the officers of L. Ine. decided that they no longer wanted

to manage the subject property due to the dissention among

the beneficiaries. FNB as the holder of legal title to the

subject property purchased the stock of L. Ine. on behalf

of the beneficial owners. Mr. Gardner and Mr. Ponton, two

of the trust officers at FNB, became officers of L. Ine.

and took over the responsibility of managing the subject

property.

At about this time, severa! of the beneficiaries of the

various trusts owning an interest in the subject property

expressed their desire to sell their interest in the property.

Several offers to buy the property were rejected. Mrs.

Hummel did not want to sell but indicated that she might

exchange her interest for an interest in other property, in

order to avoid adverse tax consequences.

C-6

On March 8, 1978, Mont Pelerin Corporation agreed to

purchase a 34 percent interest in the subject property. On

March 20, 1978, it agreed to purchase an additional 31 per-

cent interest. In both of these purchase agreements, Mont

Pelerin included an addendum which provided that the

“fsjeller has no information or knowledge of any written

or oral agreement relating to the portion of the Beverly

Hills Medical Building or any portion thereof being sold

hereby which would prohibit or in any way impede a court-

ordered partition of the Beverly Hills Medical Building or

any portion thereof, either in kind or by a court-ordered

sale.” The beneficial owners of the trust property sold

gave similar warranties individually to Mont Pelerin. Title

to the 65 percent interest in the property encompassed by

the above two agreements was transferred to Mont Pelerin

on May 4, 1978.

In March of 1978, Mont Pelerin acquired the three con-

tiguous lots to the subject property by purchasing all of

the stock of L. Inc. which held title to that property. In

March 1979, Mont Pelerin acquired an additional 4 percent

interest in the subject property bringing its total in the

subject property to 69 percent.

The remaining interest holders in the property refused

to sell. At the time of trial, the remaining 31 percent was

owned as follows: Sally Hummel’s interest in the 1935

trust owned 15 percent, William Cord Hummel beneficially

owned 1% percent, Errett Allan Hummel beneficially

owned 14% percent, Peter Russel Kirk Hummel benefi-

cially owned 2 percent, Virginia Michele Hummel Arring-

ton beneficially owned 2 percent, Robert Errett Arrington

beneficially owned 1 percent and Edgar S. Hummel bene-

ficially owned 1 percent. Legal title to this 24 percent was

held by Seck & Co., the nominee of Security National Bank

of Nevada, the trustee of the various trusts holding bene-

ficial interests in the property. The remaining interest

C-7

owned was 5 percent by Leonard Olinger, a nonappellant

and 2 percent by Douglas Scott and Albert Scott as joint

tenants. Albert was not a party to this action but has

stipulated that he is bound by any partition the court

orders.

In 1977, prior to Mont Pelerin’s acquisition of its inter-

est, Douglas Scott filed suit against FNB, UCB and L.

Inc. alleging mismanagement of the trust property. In

November 1978, Mont Pelerin filed its complaint in inter-

vention for partition. Mrs. Hummel, Peter and Errett

Hummel cross-complained against FNB alleging misman-

agement of the 1935 trust and breach of fiduciary duty. The

Hummel and Scott actions were severed and the partition

action proceeded to trial first.

DISCUSSION

Under California law,? the owner of a concurrent estate

in real property is entitled to have that property parti-

tioned unless that owner is barred by a valid express or

implied waiver of that right. (Code Civ. Proe., § 872.710,

subd. (b); American Medical International, Inc., v. Feller

(1976) 59 Cal.App.3d 1008, 1014-1015; Pome v. Tiedt (1965)

232 Cal.App.2d 733, 738; Annot., Contractual Provisions

as Affecting Right to Judicial Partition (1971) 37 A.L.R.3d

962.) An action for partition is equitable in nature and

subject to estoppel and other equitable defenses. (Thomas

v. White (1963) 214 Cal. App.2d 322, 326; American Medical

International, Inc. v. Feller, supra, 59 Cal.App.3d 1008,

1013.) .A successor in interest to a concurrent estate is

generally bound by a valid waiver of partition by his trans-

“Because this action concerns California real property, California

law governs despite the fact that it also involves the interpretation

of a trust which was created in ILinois. (7 Witkin, Summ. of Cal.

Law (8th ed. 1974) Trusts, §§ 5-7, pp. 5370-5371. )

C-8

feror. (59 Cal.App.3d at, p. 1021; Harrison v. Domergue

(1969) 274 Cal.App.2d 19, 21-23.)

When a concurrent estate in real property is the subject

of an active trust, partition is prohibited if its effect would

be to prematurely terminate that trust or if it would defeat

the purpose of that trust. (48 Cal.Jur.3d Partition, § 31,

pp. 269-270; Annot., Right To Cestui Que Trust (Or One

Claiming Through Or Under Him) To Maintain Suit For

Partition (1940) 126 A.L.R. 1009.) The mere fact that the

property is the subject of a trust, however, does not pre-

clude partition.

Appellants first contend that “under California law, a

beneficiary of an active express trust containing real prop-

erty, such as the 1935 trust, has no right to partition said

trust property unless all beneficiaries agree.”

Appellants urge that a beneficiary of an xuctive trust

cannot seek partition of the trust property anc thereby

prematurely terminate the trust. -The authorities upon

which appellant relies in support of this contention concern

situations where a beneficiary of a trust seeks to use a par-

tition action to separate his interest from those of:his co-

beneficiaries resulting in a premature termination of that

trust.

In the case at bench, to the extent Mont Pelerin obtained

an interest in the subject property from the beneficiaries

of the 1935 trust it received the legal title as well as the

beneficial title to that property. Those beneficiaries were

expressly given the right to deal with their trust property

independently of the other beneficiaries. Each beneficiary

who sold an interest warranted that he or she knew of no

impediment to a partition of the property. Appellants do

C-9

not challenge the propriety of Mont Pelerin’s acquisition

of its interest in this action.

There is no evidence in the record that the partition of

the subject property will result in the premature termina-

tion of the 1935 trust. At most, appellants will be forced

to sell their interest in the subject property, an act which

they were allowed voluntarily to do by the express terms

of that trust. The judgment of partition will result in a

division of a piece of the property in the trust corpus, it

will not result in an alteration of the structure of the trust.

Mont Pelerin is also a co-tenant by reason of its aeqnisition

of a substantial portion of its interest in the subject prop-

erty from sources other than the 1935 trust and its right

to partition cannot be foreclosed by reason of that 1935

trust. This coutention is, therefore, rejected.

Appellants next contend that “[e]ven if under some

circumstances an active trust containing real property can

be partitioned, the 1935 trust instrument prohibits parti-

tion and sale of individual trust interests without the con-

sent of the beneficiary of that interest. The trial court, by

holding to the contrary, has rewritten the terms of the 1935

trust and added terms inconsistent with its meaning and

intent and caused harm to appellants not intended by the

creator of the trust.”

Within this contention, appellants focus on that portion

of the 1948 admendment to the 1935 trust providing that the

beneficiaries as investment consultants, must give their

written approval before the trustee could make any sale of

the trust property. Appellants assert that the partition

of the subject property will defeat the purpose of this pro-

vision because it will usurp their exclusive power to deal

with their trust property.

C-10

* In its tentative decision, the trial court determined that

E. L. Cord made the beneficiaries of the trust established

in 1935 investment consultants in order to give them greater

control over their trust property without defeating the tax

planning benefits of a trust. The trial court further de-

termined that if E. L. Cord, as a brilliant businessman, had

wanted to prohibit the partition of any of the property held

in trust, he would have expressly provided as such. We

agree.

The waiver of the right to partition of a co-owner of

real property will typically be implied in a contract or

trust where the partition of the property would defeat the

purpose for which the property was acquired. In Pine v.

Tiedt, supra, 232 Cal.App.2d 733, the court held that parti-

tion was improper because it would defeat the purpose

behind the investors’ acquisition of the property, which was

to operate an ongoing enterprise. In Miranda v. Miranda

(1947) 81 Cal.App.2d 61, the court held that partition

would defeat the purpose of the parties’ agreement which

provided that the defendant was entitled to occupy the

premises as long as she remained unmarried and lived in

the premises with her children.

Partition will also be denied if its effect would be to

unfairly defeat the legitimate expectations of a party under

a contract. In Schwartz v. Shapiro (1964) 229 Cal.App.2d

238, 253, the parties, as co-owners of a parcel of real prop-

erty, had agreed to give each other the right to purchase

the others’ interest in the property at the original purchase

price prior to any sale of that interest to a third party. The

court held that to allow the plaintiff to obtain partition

without first offering defendants the right to purchase their

interest at the price specified would permit a circumvention

of that contractual obligation. Accordingly, the court dis-

allowed the partition of the property. (See also Penas-

quitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356, 358-395.)

C-11

In the case at bench, the clause providing that the trustee

must obtain the consent of the beneficiaries in their role

as investment consultants prior to the trustee’s disposition

of trust property is not circumvented by the partition of

trust property at the request of a non-beneficiary party

who owns a separate interest in that property. That clause

gave greater control of the trust corpus to the beneficial

owners of the trust property. There is no evidence it was

intended as a restriction on the rights of non-beneficiary

co-owners of property that was held in that trust to obtain

a partition. Nor is there any evidence in the record that

the continued co-ownership of the subject property was

necessary to preserve the purpose of that trust. The fact

that appellants may suffer adverse financial consequences

as a result of the partition is not sufficient by itself, to pre-

vent Mont Pelerin from enforcing their right to a partition.

(De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 124.) We,

therefore, reject appellants’ contention in this regard.

III

Appellants next contend that “[e]vidence in addition to

the language of the 1935 trust instrument compels the con-

clusion that the trust property in question cannot be par-

titioned.” Appellants assertions with regard to this con-

tention are without merit. First the belief of the co-bene-

ficiaries under the 1935 trust that they had control over

their trust assets is not an indication that that trust itself

restricted partition of trust property.

Secondly, the provision in the ma»agement agreement,

concerning the subject property between FNB and L. Inc.,

that that agreement would terminate upon the sale of the

premises is no indication that the subject property was to

be sold only as a whole. This is apparent, especially in light

of the appellants’ recognition that the co-beneficiaries had

a right independent of the other co-beneficiaries to dispose

C-12

of their interest in that property. Further, Mont Pelerin’s

request that FNB not lease the property without its consent

pending the consummation of its purchase of an interest in

that property is not, as appellants contend, sufficient to

demonstrate Mont Pelerin’s bad faith. Finally, the 1935

trust provision that a majority of the beneficiaries is neces-

sary to remove the trustee is not, as appellants contend,

inconsistent with the partition of property, an interest in

which is held in part in the corpus of that trust.

Appellants’ next contention is that “[e]ven if partition

is allowed in this case, there is insufficient evidence to sup-

port the trial court’s order that the property be sold rather

than divided. To order it sold would defeat the legitimate

economic expectations of appellants and cause horrendous

and unwarranted tax consequences.”

Code of Civil Procedure section 872.820 provides in per-

tinent part: “[T]he court shall order that the property be

sold and the proceeds be divided among the parties in

accordance with their interests in the property as deter-

mined in the interlocutory judgment in the following situa-

tions: ... [J] (b) The court determines that, under the

circumstances, sale and division of the proceeds would be

more equitable than division of the property....” Code of

Civil Procedure section 872.840 provides in pertinent part:

“(a) Where the property or an interest therein is subject

to an express trust, the court may, in its discretion, order

that the property be sold. [f] Upon division or sale of

such property, the property or proceeds of sale allotted to

the trustee of the express trust shall be held by him upon the

trust therein stated,...”

In 1976, the Legislature amended California’s partition

provisions. “The former sections provided for divisions by

C-13

sale only where physical division would cause ‘great preju-

dice’ to the parties. The new provisions provide for a pre-

sumption in favor of physical division which will control

in the absence of proof that under the circumstances sale

would be ‘more equitable’ than division.” (Butte Creek

Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365.)*

Code of Civil Procedure section 872.840, giving the trial

court discretion to order the sale of trust property involved

in a partition action, does not change the preference for

partition in kind. (See Richmond v. Dofflemyer (1980) 105

Cal.App.3d 745, 757; Cal. Real Property Remedies Practice

(Cont.Ed.Bar 1982) § 8.13, pp. 266-267.)

In the interlocutory judgment of partition, the court de-

termined that “[a] sale of the property as a single parcel

would be more equitable to the parties than a division of

the property,...” Appellants failed to request a statement

of decision by the trial court and, therefore, waived their

right to one. “Accordingly, we must presume in favor of

the judgment every finding of fact necessary to support it

warranted by the evidence (citation).” (Homestead Sup-

plies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d

978, 984.)

Respondent urges that the current use of the property

is not its best use and that an appropriate development of

’Appellants assert, without citation of authority, that the applica-

tion of the 1976 California partition act which relaxes the standard

for partition by sale (Code Civ. Proc., § 872.820) would be uncon-

stitutional because they own their interest in the subject property

pursuant to a 1935 trust. The Legislature clearly intended this act

to apply to suits commenced after the effective date of the act. (See

Stats. 1976, ch. 73, p. 110.) To the extent that it is claimed that

this results in a retroactive application of the act to appellants, we

observe that the act simply changes the nature of the remedies

involved and is not unconstitutional. (See 5 Witkin, Summ. of Cal.

Law (8th ed. 1974) Const. Law, § 285, pp. 3574-3575. )

C-14

the property requires the whole parcel. Mont Pelerin refers

to evidence showing they would build a hotel on the prop-

erty if it acquired the entire parcel. Respondent also urges

that the multiple number of joint owners makes physical

partition impractical.

“There are two types of evidence which have been held

sufficient to justify a partition sale property rather than a

physical division. The first is evidence that the property is

so situated that a division into subparcels of equal value

cannot be made.... [f] The second type of evidence which

supports a partition sale rather than physical division is

economic evidence to the effect that, due to the particular

situation of the land, the division of the land would sub-

stantially diminish the value of each party’s interest.”

(Butte Creek Island v. Crim, supra, 136 Cal.App.3d 360,

366-367.)

The mere fact that there are multiple interest holders in

the land does not conclusively establish that an appropriate

division cannot be made. We need not decide whether the

first test was met since we find that there was sufficient

evidence, under the second test set forth in Butte to support

the trial court’s judgment. The evidence as to the location

and character of the land was itself evidence supporting

the trial court’s exercise of its sound discretion to order

the sale, as was the evidence of the size of the property

and the kind of improvements and their location on the

property. It is obvious from the evidence adduced that the

economic value of the land and the value of each party’s

interest therein would be substantially diminished by its

division.

Appellants’ last contention is that “[t]he trial court’s

orders contained in paragraphs 5 through 10 of the inter-

C-15

locutory judgment are inappropriate at this time and should

be vacated because there was no evidence before the court

upon which it could base the orders contained in said

paragraphs.”

In support of this contention appellants’ total argument

is that “[t]here was no evidence before the trial court that

a private sale is better than a public sale, that the bond is

sufficient, that a 10% down payment is sufficient, ete. It

would be much more appropriate to have a referee (if the

case is affirmed on appeal) report to the court as the best

manner of partitioning the Property. [{] Also, the trial

court’s order totally obliterates the 1935 Trust’s rights

under Richmond v. Dofflemyer [(1980) 105 Cal.App.3d

745] to be able to work out a tax-free exchange. Paragraph

9 of the proposed judgment talks about the proceeds of sale

and is totally inappropriate at this time.”

Of course, portions of that argument unsupported by

references to the record or the law require no further state-

ment. To the extent that they are, it is sufficient to state

that the judgment is interlocutory, that it provides for a

“public” auction, that the trial court has not foreclosed

appellant’s opportunity to effect a tax-free exchange. The

size of the bond is a matter committed to the sound discre-

tion of the trial court. (Code Civ. Proe., § 873.010, subd.

(b)(i).) There is nothing in the record to suggest that the

trial judge has, or will, abuse that discretion.

The judgment is affirmed.

McC.osky, J.

We concur:

Woops, P. J.

KInGs.Ley, J.

APPENDIX D

D-1

Order.

In HUMMEL vs. MONT PELERIN CORP., No. 70081

PETITION FOR REHEARING DENIED. Los Angeles,

California, June 11, 1984.

Cuay Rossrns, Clerk

APPENDIX E

E-1

Order.

CLERK’S OFFICE, SUPREME COURT, 4250 State

Building, San Francisco, California 94102.

In re: 2 Civ., No. 70081, MONT PELERIN CORP. vs.

SALLY CORD HUMMEL, et al. HEARING DENIED,

July 25, 1984.

Respectfully,

Clerk

APPENDIX F

F-1

Attorneys for Defendants in Intervention SALLY C.

HUMMEL, SECK & CO., SECURITY BANK OF NE-

VADA, PETER RUSSELL KIRK HUMMEL and ER-

RETT ALLAN HUMMEL.

SUPERIOR COURT of the State of CALIFORNIA for

the COUNTY of LOS ANGELES. DOUGLAS A. SCOTT,

Plaintiff, v. L, INC., et al., Defendants. MONT PELERIN

CORPORATION, N.V., Intervenor, v. VIRGINIA KIRK

CORD, et al., Defendants in Intervention. AND RELATED

CROSS-ACTIONS.

No. EAC 25905 (Transferred to Central District)

ORDER FOR SUBSTITUTION OF INTERVENTION

DEFENDANTS. DATE: September 14, 1984. TIME: 9:00

a.m. DEPT: 31.

WHEREAS Intervenor MONT PELERIN CORPORA-

TION, N.V. has filed a partition action with respect to im-

proved real property at 133 S. Laskey Drive (hereinafter

referred to as the “Beverly Hills Medical Building’’), and

WHEREAS the trusts which hold undivided interests in

the Beverly Hills Medical Building have heretofore been

administered by Defendant in Intervention SECURITY

BANK OF NEVADA as trustee for the benefit of Defen-

dants in Intervention SALLY CORD HUMMEL, PETER

RUSSELL KIRK HUMMEL and ERRETT ALLAN

HUMMEL and whereas VALLEY BANK OF NEVADA, a

national banking association, is now the successor trustee,

and

WHEREAS legal title to such undivided interests have

heretofore vested in SECK & CO., a co-partnership, as nom-

inee of SECURITY BANK OF NEVADA, and have now

been conveyed to HAFTCO, a partnership, as nominee of

VALLEY BANK OF NEVADA, and

ee ces

F-2

WHEREAS SECURITY BANK OF NEVADA and

SECK & CO. no longer have any legal or equitable interest

in the Beverly Hills Medical Building;

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED AS FOLLOWS:

1. That VALLEY BANK OF NEVADA, a national

banking association, shall be substituted in the place and

stead of SECURITY BANK OF NEVADA, a national

banking association, as the Intervention Defendant holding

undivided interests in the Beverly Hills Medical Building as

trustee of trusts for the benefit of Intervention Defendants

SALLY CORD HUMMEL, PETER RUSSELL KIRK

HUMMEL and ERRETT ALLAN HUMMEL: and

2. That HAFTCO, a partnership as nominee of VAL-

LEY BANK OF NEVADA, shall be substituted in the

place and stead of SECK & CO., a co-partnership, as the

Intervention Defendant owing legal title to said undivided

interests.

DATED: September 14, 1984

Lester E.. OLson

Judge of the Superior Court

APPENDIX G

G-1

THIS AGREEMENT, executed in quintuplicate at

Chicago, Illinois as of August 21, 1935 between E. L.

CORD, of Chicago, Dlinois, hereinafter called the “Donor”,

and the said E. L. CORD, not personally but as Trustee,

hereinafter called the “Trustee”, and THE FIRST NA-

TIONAL BANK OF CHICAGO, of Chicago, Illinois, here-

inafter called the “Successor in Trust”, WITNESSETH:

THAT, in consideration of the acceptance by the Trustee

of the trusts hereby created and the payment by the Donor

to the Trustee of the sum of One Dollar ($1.00), the receipt

whereof is hereby acknowledged, the Donor has assigned,

transferred and delivered, and by these presents does as-

sign, transfer and deliver to the Trustee, the sum of ONE

HUNDRED THOUSAND DOLLARS ($100,000.00), which

amount has been this day charged to the account of the

Donor upon the books and records of E. A. Pierce & Com-

pany, 105 West Adams Street, Chicago, Illinois. The said

sum of ONE HUNDRED THOUSAND DOLLARS

($100,000.00) is hereby divided into four separate trust

funds in the amount of TWENTY-FIVE THOUSAND

DOLLARS ($25,000.00) each, one of said trust funds being

for the benefit of Donor’s daughter, NANCY VIRGINIA

CORD, the second of said trust funds being for the benefit

of Donor’s daughter, SALLY KIRK CORD, the third of

said trust funds being for the benefit of Donor’s son,

CHARLES ERRETT CORD, and the Fourth of said trust

funds being for the benefit of Donor’s wife, VIRGINIA

KIRK CORD, and there has this day been opened on the

books of said E. A. Pierce & Company four new accounts

in the amount of TWENTY-FIVE THOUSAND DOL-

LARS ($25,000.00) each, representing the principal of said

trust funds, one of said accounts being in the name of E. L.

CORD, Trustee for NANCY VIRGINIA CORD, the second

in the name of E. L. CORD, Trustee for SALLY KIRK

CORD, the third in the name of E. L. CORD, Trustee for

G-2

CHARLES ERRETT CORD, and the fourth in the name of

EK. L. CORD, Trustee for VIRGINIA KIRK CORD. The

Trustee agrees to hold, manage, invest and-distribute the

said trust funds for the benefit of the beneficiaries named

and upon the following terms and conditions:

The Trustee shall have full power:

(a) To invest any money at any time in any of the

trust funds in such bonds, stocks, notes, annuities, de-

bentures, real estate mortgages or other securities, or

in such other property, real, personal or mixed, either

within or without the United States, as the Trustee

during his lifetime, in his sole judgment and discretion,

shall approve, without being limited by any statute or

rule of law of Illinois or any other state or country

regarding investments by trustees; to make purchases

of securities or other investments for said trusts, or

any of them, from himself, from any beneficiary, or

from others not interested in or parties to this agree-

ment, for cash, or upon credit or margin; to open and

maintain brokerage accounts in the names of said

trusts with any broker or brokers; to borrow money in

the names of and for the accounts of said trusts, or

any of them, from himself, personally, or from any

bank, trust company or broker, and to pledge or hypo-

theeate any assets of said trusts as security for the

repayment of such loans; and from time to time to

deposit and keep on deposit the funds and securities of

said trusts in any bank or trust company, or with any

brokerage firm which is a member of the New York or |

Chicago Stock Exchange, selected by the Trustee, with-

out any personal responsibility for any loss occasioned

thereby. No one dealing with the Trustee shall have

any duty to inquire into the propriety of any act of

G-3

the Trustee, or to see that any money or property paid

or delivered to the Trustee is properly applied.

(b) to allot to any trust fund created hereunder an

undivided interest in any properiy, to make joint in-

vestments for said trust funds, to transfer investments

from one trust fund to another, and to make any divi-

sion or distribution in kind, or partly in kind and partly

in money, and to determine the value of any property

so allotted, divided or distributed;

for any period of time not exceeding ninety-nine (99)

years, mortgage or pledge any property, real or per-

sonal, at any time constituting a portion of the trust

funds, upon such terms and conditions as the Trustee

shall deem wise;

(d) to cause any security which may at any time

constitute a portion of the trust funds to be issued, held

or registered in his own name as Trustee, or in the

name of his nominee, or in the name of any broker, or

in such form that title will pass by delivery;

(e) to consent to the reorganization, consolidation,

readjustment of the financial structure or sale of the

assets, of any corporation or other organization, the

securities of which constitute a portion of the trust

funds, and to take any action with reference to such

securities which, in the opinion of the Trustee, is neces-

sary to obtain the benefit of any such reorganization,

consolidation, readjustment or sale; also to exercise

any conversion privilege or subscription right given

to the Trustee as the owner of any security constituting

a portion of the trust funds; and to accept and hold as

a portion of the trust funds the securities resulting

from any such reorganization, consolidation, readjust-

ment, sale, conversion or subscription;

G-4

(f) to pay all costs, taxes, expenses and charges in

connection with the administration of the trusts, jin-

cluding a reasonable compensation to the Trustee and

to his counsel and agents, and to determine whether

such payments shall be charged against principal or

income ;

(g) to determine what is income and what is prin-

cipal hereunder ;

(h) to do all other acts in his judgment necessary

or desirable for the proper and advantageous manage-

ment, investment and distribution of the trust funds.

II.

The principal and the net income of said trust funds

shall be used and disposed of as follows:

(a) During the minority of any of said beneficiaries

and, if in the judgment of the Trustee the income from

his or her trust fund is not required for the support,

maintenance and education of such beneficiary or bene-.

ficiaries, and in the case of the trust created for the

benefit of Virginia Kirk Cord for and during the five

year period ending August 21, 1940, the net income

shall be accumulated and added to, considered a part

of and disposed of as is herein provided with respect

to the principal from which such income was derived;

(b) during the minority of any of such beneficiaries,

if in the judgment of the Trustee the income from his

or her trust fund is required for the support, main-

tenance and education of such beneficiary or bene-

ficiaries, the net income shall not be accumulated and

added to the principal of the trust fund of such bene-

ficiary or beneficiaries, but used by the Trustee, in his

sole judgment and discretion, for the support, main-

tenance and education of such beneficiary or bene-

ficiaries ;

G-5

the age of twenty-one (21) years, the net income from

his o. her trust estate shall be paid to him or her in

quarterly installments on or about the fifteenth days

of January, April, July and October of each year, and

after August 21, 1940 the net income from the trust

estate created for her benefit shall be paid to Virginia

Kirk Cord in like quarterly installments. Such pay-

ments to each beneficiary shall continue for the balance

of his or her natural life.

(d) In the event of the decease of Virginia Kirk

Cord, one of the beneficiaries hereunder, the principal

of the trust estate created for her benefit and all ac-

cumulated and undistributed income therefrom shall

thereupon be divided equally between and become part

of the other trust funds created by the Donor under

this instrument, or, if any of said trusts have previous-

ly terminated, then amoung the remaining trusts in

existence at said date. Upon the decease of any of

the other beneficiaries, now minors, of the trusts here-

by created, such beneficiary’s trust estate shall continue

if such beneficiary leaves lawful issue him or her

surviving, and the Trustee shail in such event use the

net income of such trust estate for the support, educa-

tion and maintenance of such deceased beneficiary’s

lawful issue during his, her or their minority, and to

that end may make payments of such net income direct

to such issue, or to a legal guardian, or to a relative,

to be expended for the support, maintenance and edu-

cation of such issue, or may itself expend the net

income for such purposes, until the youngest surviving

child of said beneficiary shall attain the age of twenty-

one (21) years, at which time said trust shall terminate

anc the principal and any undistributed income there-

from shall be divided among the then surviving lawful

G-6

issue of said-deceased beneficiary. In the-event of the

decease of any beneficiary hereunder, other than Vir-

ginia Kirk Cord, leaving no lawful issue him or her

surviving, or if such lawful issue survive the beneficiary

but no one of such issue lives to attain the age of

twenty-one years, such beneficiary’s trust hereby cre-

ated shall thereupon immediately cease and determine

upon the death of the beneficiary without lawful issue

or upon the death of the last surviving lawful issue

of such beneficiary before attaining the age of twenty-

one years and the principal of said trust estate and

all accumulated and undistributed income therefrom

shall thereupon be divided equally between and become

part of the other trust funds created by the Donor

under this instrument, if said trusts continue in

existence at that date, or, if any of said trusts have

previously terminated, then pro rata among the surviv-

ing beneficiaries who have received the principal of

their respective trust funds, and in the event all of

said trusts have terminated and all of said beneficiaries

have died and no lawful issue of any beneficiary here-

under survives, then in such case any principal of

said trust estates and all undistributed income there-

from shall be immediately distributed among the heirs

at law and next of kin of the last surviving beneficiary

in accordance with the laws of the State of Illinois

relative to the distribution of the estates of intestates

now in force.

ITI.

In the event of the death, resignation, removal or other

inability to act of E. L. Cord, as Trustee, The First Na-

tional Bank of Chicago, shall immediately be and become

Trustee in his place and stead and shall thereupon have

and receive all the titles, rights, duties and obligations

discretionary and otherwise in this instrument conferred

G-7

or imposed upon said E. L. Cord, as Trustee (subject to

the limitations and restrictions elsewhere herein imposed

upon all successor Trustees), provided, however, that said

The First National Bank of Chicago shall be in no way

liable or responsible for any acts or defaults of E. L. Cord,

as Trustee, or for any losses or expenses resulting from

or occasioned by anything done or neglected to be done by

the said E. L. Cord, while acting as the Trustee, but shall

be liable or responsible only for its own acts and defaults

in respect to property actually received by it as the Trustee;

and provided, further, that The First National Bank of

Chicago, as Trustee, with the consent of the adult bene-

ficiaries at the time entitled to receive income may accept

the account rendered and the assets and properties de-

livered to it by E. L. Cord, as the Trustee, or by his legal

representatives, as a full and complete discharge of E. L.

Cord, as Trustee; and it shall incur no liability or responsi-

bility to the beneficiaries of the trusts herein declared by

reason of so doing. As such Successor Trustee, the said

The First National Bank of Chicago shall be entitled to

reasonable compensation for its services and shall be re-

lieved of all responsibility for any loss occasioned by the

holding of any investments made for said trust estates or

any of them by the Trustee, E. L. CORD, in his lifetime,

but thereafter in making any new investments for said trust

estates shall make only such investments as are legal in-

vestments for trust funds under the laws of the State of

Illinois then in force.

IV.

If and as often as the Trustee deems the same advan-

tageous to the trusts hereunder it may by an instrument

in writing appoint as Successor Trustee hereunder any

trust company, wherever situate, having a capital and

surplus of not less than ‘T'wo Million Dollars ($2,000,000).

Upon its written acceptance of such appointment delivered

to the Trustee such Successor Trustee shall thereupon have

EEE ne

G-8

all the titles, powers, duties, rights and discretions of the

original Trustee hereunder, subject, however, to the fol-

lowing, namely:

(a) Said Trustee shall act as Advisor to such Suc-

cessor Trustee;

(b) Such Successor Trustee. shall invest and rein-

vest trust funds hereunder in such securities and prop-

erty and in such manner as said Advisor shall, from

time to time, direct in writing delivered to it and shall

make no sales of any trust assets hereunder without

the prior written approval of said Advisor;

shall be made through said Advisor and such Successor

Trustee shall exercise the discretionary powers granted

hereunder with respect to payment of income and prin-

cipal in accordance with the written direction of said

Advisor; and

(d) Such Successor Trustee may retain and hold,

without incurring any liability in so doing, as invest-

ments of trust funds hereunder, any property or securi-

ties delivered to it by the Trustee or that may have been

obtained by the direction of said Advisor.

Said Advisor may, in its discretion, remove any Successor

Trustee appointed under the provisions of this Article, such

removal to be evidenced by a writing signed by said Advisor

and delivered to such Successor Trustee. Any Successor

Trustee appointed under the provisions of this Article may

resign upon executing its resignation and delivering the

same to said Advisor. Upon the removal or resignation of

any such Successor Trustee, it shall make delivery of all

trust assets in its possession as said Advisor shall direct.

Said Advisor shall have full power to approve its accounts

and give it full and complete release and discharge as such

G-9

Successor Trustee hereunder. Upon the removal or resigna-

tion of any such Successor Trustee said Advisor may, and

is hereby given power to, reappoint itself as Trustee here-

under or appoint some other trust company, wherever situ-

ate, having a capital and surplus of not less than Two

Million Dollars ($2,000,000) as Successor Trustee here-

under. If said Advisor shall reappoint itself as Trustee

hereunder it shall thereupon have all the tjtles, powers,

duties, rights and discretions of the original Trustee here-

under. If said Advisor shall appoint some other trust

company as Successor Trustee hereunder such Successor

Trustee shall have all the titles, powers, duties, rights and

discretions of the original Trustee hereunder subject to the

same provisions hereinabove set forth in sub-paragraphs

(a), (b), (ce) and (d) of this Article and also subject to the

same provisions hereinabove set forth in respect to its

removal and resignation. Said Advisor shall be entitled

to reasonable compensation for its services hereunder.

The Donor shall have full power:

(a) to assign, transfer and deliver additional per-

sonal property or real property to the Trustee, to be

held, managed, invested and distributed as part of any

or all of said trust funds and subject to all of the terms

and conditions hereof or to such other terms and condi-

tions as the Donor, the Trustee and the Successor in

Trust may by any indenture supplemental hereto agree

upon;

(b) the Donor also reserves the right at any time

during his lifetime, by written instrument delivered to

the Trustee and the Successor in Trust, to appoint a

new Trustee as Successor in Trust to the Trustee herein

named, and/or to appoint a new Successor in Trust,

and upon the appointment of any such new Trustee or

we i we Ee ED ee ee

————— ee Sa

SSS

———

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Successor in Trust, the new Trustee and/or Successor

in Trust so appointed shall have the same duties, pow-

ers, titles, discretions and privileges as if such Trustee

or Successor in Trust had been originally appointed

hereunder, unless such powers are limited, enlarged,

or modified by such written instrument.

VI.

The First National Bank of Chicago, if it becomes Trustee

hereunder by reason of the death, incapacity, resignation

or inability to act of E. L. CORD, the Trustee herein named,

may resign its trust and in the event of such resignation a

Successor Trustee may be appointed by an instrument in

writing signed by a majority in interest of all of the adult

beneficiaries of the trusts created hereby, provide however,

that any Successor Trustee so appointed shall always be a

bank or trust company having capital and surplus of not

less than Two Million Dollars ($2,000,000). Any successor

trust company so appointed shall thereafter have the same

rights, duties, and obligations discretionary and otherwise

as are hereunder conferred upon The First National Bank

of Chicago while acting as Successor Trustee in accordance

with the provisions of Article III hereof, and with the

consent of the adult beneficiaries entitled to receive income,

may accept the account rendered and assets and property

delivered to it by The First National Bank of Chicago, as

Trustee, as a full and complete discharge of said Trustee

and it shall incur no liability or responsibility to the bene-

ficiaries of said trusts by reason of so doing.

VI.

Wherever in Articles III, V and VI of this agreement

reference is made to “Trustee” or “Successor in Trust”, it

shall be taken to mean and include “Advisor” and “Succes-

sor Advisor” if at the time said provision becomes operative

G-11

an Advisor is then acting, provided, however, that the pro-

visions of this paragraph shall not apply to Article IV

hereof.

IN WITNESS WHEREOF, the Donor and Trustee has

hereunto set his hand and seal and the Successor in Trust

has caused this agreement to be executed by its authorized

officer the day and year first above written.

(Signed) E.L.Cord (Seal)

E. L. Cord, Personally, as Donor

(Signed) E.L.Cord (Seal)

KE. L. Cord, not Personally, but

as Trustee

THE FIRST NATIONAL

BANK OF CHICAGO

Successor in Trust

By O. A. Bestel

Vice President

APPENDIX H

H-1

APPOINTMENT OF NEW TRUSTEE

UNDER TRUST INDENTURE

THIS INDENTURE made and executed in quintuplicate

this 15 day of October, 1948, by E. L. CORD, of the City of

Dyer, County of Esmeralda, State of Nevada, hereinafter

referred to as “Donor”,

WITNESSETH:

WITNESS under date of August 21, 1935, a Declaration

of Trust was made and entered into by and between E. L.

CORD, as Donor, E. L. CORD, not personally but as “Trus-

tee”, and THE FIRST NATIONAL BANK OF CHICAGO

as “Successor in Trust”, which said Declaration of Trust

for the express benefit of NANCY VIRGINIA CORD,

SALLY KIRK CORD, CHARLES ERRETT CORD and

VIRGINIA KIRK CORD as the primary beneficiaries, and

various other persons or classes of persons who might or

might not share in the principal or income arising out of the

trust estates so created; and that said Declaration of Trust

is hereby incorporated herein by reference the same as

though fully set forth herein; and

WHEREAS Donor pursuant to the provisions of said

Declaration of Trust dated August 21, 1935, has elected to

exercise the right to appoint a new Trustee as Successor in

Trust to the Trustee E. L. Cord, all as reserved under the

terms and provisions of said Trust.

NOW, THEREFORE, in consideration of the promises

Donor does hereby declare and expressly provide as fol-

lows:

Donor does hereby appoint THE FIRST NATIONAL

BANK OF CHICAGO as the new “Trust2e” to the Trustee

E. L. Cord named in said Declaration of Trust dated August

21, 1935, and all of the terms and provisions set forth herein

shall be binding upon and observed by the new “Trustee”

and its successor or successors.

H-2

II.

Donor pursuant to the terms and provisions of said

Declaration of Trust dated August 21, 1935, does hereby

limit, enlarge, or modify the powers of the “Trustee” in the

following particulars, and to the following extent:

(a) In subdivision (d) of Article I of said Declaration of

Trust after the word “security” in the first line of said sub-

division and Article, there is hereby added the following

words, “or real property”.

(b) Section (c) of Article I of said Declaration of Trust

is hereby enlarged or modified to read as follows:

“(o) to consent to the reorganization, consolidation,

readjustment of the financial structure or sale of the

assets, of any corporation or other organization, or the

liquidation of any corporation, the securities of which

constitute a portion of the trust funds, and to take any

action with reference to such securities which, in the

opinion of the Trustee is necessary to obtain the benefit

of any such reorganization, consolidation, readjust-

ment, liquidation or sale; also to exercise any voting

rights, conversion privilege, or subscription right given

to the Trustee as the owner of any security constituting

a portion of the trust funds; to accept and hold as a

portion of the trust funds the securities resulting from

any such reorganization, consolidation, liquidation, re-

adjustment, sale, conversion or subscription; and to

exchange any assets of the trust fund for any stock,

bonds, debentures, or any combination thereof, of any

corporation.”

or powers to exercise any right, or privilege provided for in

paragraph IV of said Declaration of Trust.

(d) The restriction contained in the last paragraph in

Article III of said Declaration of Trust, which appears in

‘

H-3

the following words, to wit: “but therefore in making any

new investments for said trust estates, shall only make such

investments as are legal invesiments for trust funds under

the laws of the State of Illinois and in force”, is hereby

removed.

(e) The Trustee shall keep the Trust Funds invested in

stocks, voting trust certificates and other securities and any

other property real or personal, (other than fixed obliga-

tions, whether secured or unsecured), in its judgnient hav-

ing sound intrinsic values even though such securities or

property produces no income or produces only a nominal!

income, and shall make no investments in bonds, debentures,

mortgages or other fixed obligations, either public or pri-

vate, unless requested so to do by the Investment Consult-

ant or Investment Consultants acting and in making and

retaining investments the Trustee shall not be restricted to

the usual standards of diversification but may invest all or

substantially all of any of the trust funds in any one type

of security or property.

Each beneficiary of a trust fund who is now, or who shall

hereafter become, twenty-five (25) or more years of age

shall be and is hereby appointed Investment Consultants

of his or her trust fund. When there is no Investment

Consultant qualified and willing and able to act as Invest-

ment Consultant of any trust fund as above provided in

this paragraph, then until there shall be such on Invest-

ment Consultant qualified and willing to act, the Donor’s

wife, Virginia Kirk Cord, and his son, Charles Errett Cord,

or such of them as shall from time to time be living and

willing and able to act, shall act as Investment Consultants

for such trust fund and whenever teither of said Virginia

Kirk Cord or Charles Errett Cord are living and wiiling

and able to act, the oldest living child if any, of the Donor

who is then twenty-five (25) or more years of age is hereby

appointed the Investment Consultant of any such trust

fund or estate.

H-4

The Trustee shall not at anytime or times, whether or

not there is an Investment Consultant or Consultants quaii-

fied and acting as hereinabove provided, make any sale or

Investment of any property or money comprising any trust

fund, except upon the written approval of such Investment

Consultant or Investment Consultants, nor shall the Trus-

tee exercise the power given it by paragraph (0) of said

Agreement, as changed herein, without such approval. Fail-

ure to notify the Trustee in writing of the disapproval of

any proposed sale or investment or other action requiring

approval within thirty (30) days after notice thereof has

been mailed to the person or persons whose approval is

or are required at his, her or their last address known to

the Trustee, shall constitute an approval thereof and the

Trustee shall be in no way liable or responsible for any

loss resulting to any trust fund or any beneficiary thereof

ye reason of the retention of any property the sale of

which has been expressly disapproved or by reason of its

failure to invest any money or take any other action re-

yuiring approval if such investment er other action has

een expressly disapproved.

Any Investment Consultant may by instrument in writ-

ing delivered to the Trustee waive his or her right so to

act for any period or periods of time that he or she may

specify and as to all, some or any of the acticns requiring

his or her approval and during the period of any such

waiver the Investment Consuitant for such trust fund shall

be the person or persons who would be such Investment

Consultant were such Investment Consultant deceased or

less than twenty-five (25) vears of age.

(f) The tenure of office of the “Trustee” shall be for

only such period of time as the majority of the adult

beneficiaries of the trust estates or funds shall approve,

and the “Trustee” shall only exercise the titles, powers,

duties, rights and discretions as set forth in said Declara-

tion of Trust and as limited, modified, or enlarged by this

H-5

Appointment until removed by a majerity of the adult bene-

ficiaries. The majority of the adult beneficiaries of the

trust estates or funds created may from time to time and

whenever they shall deem it advisable, appoint a new

“Trustee”, and/or “Successor Trustee” by an instrument

signed in writing, provided, however, that any new “Trus-

tee”, and/or “Successor Trustee” so appointed shall always

be a bank or trust company having capital and surplus of

not less than Two Million Dollars ($2,000,000), and any

such new “Trustee”, and/or “Successor Trustee” so ap-

pointed shall thereafter have the same rights, duties, and

obligations discretionary and otherwise, as are conferred

upon the “Trustee” and/or “Successor Trustee”, as pro-

vided in said Declaration of Trust dated August 21, 1935,

and as limited, enlarged or modified by his appointment.

ITI.

Concurrently with the acceptance by the “Trustee” of

the provisions of this instrument and of the trusts created

in the Declaration of Trust dated August 21, 1935, Donor

irrevocably releases and relinquishes each and every power

granted to and/or retained by him in any capacity under

the said Declaration of Trust; and Donor specifically, and

without limiting the generality of the foregoing, irrevocably

releases and relinquishes any power which he may now

have (a) to alter, amend or revoke the trusts, or any of them,

created by said Declaration of Trust; (b) to designate the

persons who shall possess or enjoy the income and principal

of the trust estates, or any of them; (c) to change the

beneficial interests in the trust estates, or any of them;

(d) to manage or control the principal or income of the

trust estates, or any of them; and (e) to receive at any

time any part of the principal or accumulated income of the

trust estates, or any of them, as an heir at law of any

beneficiary of any of said trust estates.

a ee ae Fe FE Pope PF. , a? ot v

H-6

IV.

Except as otherwise expressly provided herein, Donor

does hereby ratify, confirm and approve each and every

provision of said Declaration of Trust dated August 21,

1935.

IN WITNESS WHEREOF, Donor has set his hand and

seal the day and year first above written.

E. L. Corp

Donor

ACCEPTANCE BY NEW TRUSTEE

The undersigned does hereby agree to act as “Trustee”

and/or “Successor Trustee” ander and pursuant to the

foregoing appointment made by E. L. CORD, under said

Declaration of Trust dated August 21, 1935.

DATED: October 20, 1948.

Tue First Natronau Bank

or CHICAGO

Vice President

APPENDIX I

I-1

Trust No. 45744

DECLARATION OF TRUST

COLL GILLIES, a single man of the City of Chicago,

County of Cook, State of Illinois, herein referred to as

“Trustee”, hereby declares:

(a) That he has received (without payment of any

consideration therefor) from the persons and trusts

named or described in Exhibit “A” attached hereto, a

Deed purporting to convey to him the real property de-

scribed on the attached “Trust Property Exhibit “B”;

(b) That the beneficial interest under this trust

hereby is vested in said persons and trusts in the per-

centages set opposite their respective names in said

Exhibit “A”, the foregoing persons being herein re-

ferred to individually and jointly as “Beneficiaries”;

and

ceived by him in and to the property described in the

“Trust Property Exhibit “B” in trust under the terms

and conditions set forth in this instrument, and for the

following purposes:

POWERS OF TRUSTEE

The Trustee hereunder shall have the following powers;

and none other:

(1) To hold title to property of the trust estate; to collect

all rents from said property; to pay and discharge all costs,

charges and expenses of any description connected with or

growing out of the execution of this trust; to pay, when due,

all installments of principal and interest on any indebted-

ness which may constitute a lien on the property of the

trust estate; to pay, when due, all premiums on insurance

I-2

carried on or by reason of the ownership of the property of

the trust estate; and to disburse to the beneficiaries hereof,

on or before the last day of each calendar month, in accord-

ance with their beneficial interests all funds then remaining

in its hands after payment of the costs, charges and dis-

bursements hereinbefore mentioned.

(2) Without limitation arising out of the enumeration of

the aforesaid powers, the Trustee shall at all times deal

with the trust estate in accordance with such instructions or

authorizations as may from time to time be given to it in

writing signed by the then owners of not less than fifty-one

percent (51%) of the total beneficial interests hereunder,

or by their respective agents thereunto lawfully authorized;

provided, however, that the Trustee shall not be required to

enter into any personal obligation or liability in dealing

with any property of the trust estate nor to make himself

liable for any damages, costs, expenses, fines or penalties.

The Trustee shall not be required to inqaire into the pro-

priety of any such authorization or direction, and shall not

be liable to any beneficiary or other person by reason of any

act done by it in pursuance of such instructions or author-

izations.

The beneficiaries hereunder, both the present beneficiaries

and their successors, shall at all times be liable for the pay-

ment of all taxes, insurance, interest and principal upon

mortgages and other proper charges against the property

from time to time comprising the Trust Estate and agree

upon demand from the Trustee to deposit with the Trustee

funds sufficient to satisfy the same.

(3) It is expressly understood that the full legal title to

the trust properties hereunder shall vest in the Trustee as

such vesting is necessary to the fulfillment of the purposes

of this Trust.

ee ee ee ee

1-3

II.

* RIGHTS OF BENEFICIARIES

The beneficial interest of any beneficiary hereunder shall

conclusively be deemed to be personal property, and the

right of any beneficiary shall be limited to the enforcement

of the provisions hereof; provided, however, that the bene-

ficiaries hereunder shall in their own right have at all times

the full management and control of the property of the

trust estate, including the renting, sale or other disposition

thereof, by means of instructions and authorization given to

the Trustee in writing and signed by the then owners of not

less than.sixty-six and two-thirds percent (6633%) of the

beneficial interest ; provided, further, that no beneficiary or

beneficiaries hereunder shall have any authority to contract

for or in the name of the Trustee or the trust estate.

In case of the death of any beneficiary hereunder during

the existence of this trust, his or her right and interest here-

under shall pass to his or her executor or administrator,

and not to his or her heirs at law, and no beneficiary and no

widower, widow, heir, devisee or legatee of any beneficiary

shall have any right of dower, inheritance, homestead, par-

tition or any other real property right, statutory or other-

wise, in any property whatsoever forming a part of the

trust estate. The death of any beneficiary hereunder shall

not terminate this trust nor in any manner affect the powers

of the Trustee hereunder.

The rights of all of the beneficiaries hereunder shall be

subject to all of the terms and provisions of this agreement,

and all such beneficiaries and their successors or assigns

shall be bound by all of the provisions hereof and by all

amendments and modifications hereof made in accordance

with the provisions hereof.

I-4

ill.

TRANSFER OF INTEREST BY BENEFICIARIES

The interest of the beneficiaries hereunder either in whole

or in part, shall be assignable. No transfer of any interest

under this trust shall be valid or binding upon the Trustee

until an executed original of the instrument evidencing the

transfer shall have been filed with the Trustee, and until the

transferee shall have consented to this instrument in form

satisfactory to the Trustee.

Each duplicate of this instrument must be surrendered to

the Trustee upon the termination of this Trust.

IV.

AMENDMENTS TO OR REVOCATION OF TRUST

AND TERM THEREOF

This trust may be amended, revoked, or terminated at

anytime upon the written direction of not less than fifty-one

percent (51%) of the total interest of the beneficiaries, as

such interest appears on the records of the Trustee. No

amendment however, shall enlarge the duties or responsi-

bilities of the Trustee, or affect his fees hereunder, withc it

the written consent of the Trustee.

Unless sooner terminated or otherwise amended, this

Trust shall fully cease and terminate upon the expiration of

twenty-one (21) years from the date hereof, whereupon the

entire net trust estate shall be conveyed, transferred and

delivered (without collection of consideration therefor and

subject to all matters then against the same) to the bene-

ciaries as their interest then appears on the records of the

Trustee.

1-5

CHANGE OF TRUSTEE

The Trustee may resign at any time upon written notice

to each of the beneficiaries, provided, however, that the

Trustee shall first transfer and convey his then present title

in and to trust property to a new Trustee to be named and

appointed by not less than fifty-one percent (51%) of the

total interest of the beneficiaries.

In the event of the death of the Trustee, not less than

fifty-one percent (51%) of the total interest of the bene-

ficiaries shall nominate and appoint a new Trustee to act

hereunder. Likewise, in the same manner and at any time

or times, not less than fifty-one percent (51%) of the in-

terest of the beneficiaries may remove the Trustee and

appoint a new Trustee to act hereunder. Upon removal of

the Trustee herein named, the Trustee shall transfer and

convey his present title in and to the trust property to the

new Trustee.

VI.

BINDING UPON SUCCESSORS AND ASSIGNS

The provisions hereof shall bind the Trustee, his suces-

sors and assigns, the beneficiaries and their heirs, legatees,

devisees, administrators, executors, representatives, suc-

cessors and assigns.

DATED, this 1st day of March, 1955.

Co.i GILLIES

APPROVAL OF BENEFICIARIES

We, the undersigned beneficiaries hereby fully approve

the foregoing Declaration of Trust, No. 45744, of COLL

1-6

GILLIES, Trustee, and certify that it declares the terms

and conditions under and upon which the trust property is

to be held by the aforesaid Trustee.

DATED, this 1st day of March, 1955.

ERLAND

THE FIRST NATIONAL

BANK OF CHICAGO, -

as Trustee under its Trust Nos.

37500/05 and Trust Nos.

45039/41

By R. R. Mansrrevp

Assistant Vice President

10.

I-7

EXHIBIT “A”

Name of Owner