Appendix — Toledo Trust Co. v. Santa Barbara Foundation
Supreme Court brief1988
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g7 11320
No.
‘
In the Supreme Court of the Uni
October Term, 1987 |
THE TOLEDO TRUST COMPANY, AS TRUSTEE OF
TRUST NO. 4118 AND THE TOLEDO TRUST COM-
PANY. AS TRUSTEE OF TRUST NO. 4117,
Petitioners,
VS.
SANTA BARBARA FOUNDATION,
Respondent.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
To the Ohio Supreme Court
E. THoMAs MAGUIRE
Counsel of Record
MIcHAEL S. MESSENGER
Rosison, CURPHEY & O’CONNELL
Four SeaGate, 9th Floor
Toledo, Ohio 43604
(419) 249-7900
Attorneys for Petitioner The
Toledo Trust Company, as
Trustee of Trust No. 4118
Donatp F. MELHORN, JR.
Counsel of Record
MARSHALL & MELHORN
Four SeaGate, 8th Floor
Toledo, Ohio 43604
(419) 249-7100
Attorney for Petitioner The
Toledo Trust Company, as
Trustee of Trust No. 4117
THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647
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—— a cme
TABLE OF CONTENTS
Opinion of the Supreme Court of Ohio, August 26,
| Puen R OCR ae sere Se Ne AD RINT NF SEER we Al
Decision and Journal Entry of the Court of Appeals
of Lucas County, Ohio, May 9, 1986 .......02...... Al3
Supplemental Decision and Orders of the Court of Ap-
peals of Lucas County, Ohio, May 21, 1986 ................ A22
Opinion and Judgment Entry of the Court of Common
Pleas of Lucas Ceunty, Ohio, July 29, 1985 _.............. A24
Order of the Court of Common Pleas of Lucas County,
Ohio Enforcing Mandate, November 19, 1987 ........ A30
Judgment Entry of the Supreme Court of Ohio, August
a INIT, iccecteiicinessededinidetsisbhatntinsanvauicidhcnkcaciinlisqndd sciaiaaiakelenistes A32
Mandate of the Supreme Court of Ohio, August 26,
I Sickie ccachetdaiaitntecicdemn nitsaats cea neni deka A33
Entry of the Supreme Court of Ohio Denying Rehear-
MUN COI Wa IE cachickicaistc ok « cab secrecntieeanibteneakecneyaes A34
Complaint Filed in the Court of Common Pleas of
Lucas County, Ohio, November 3, 1983 .................... A35
Answer of Santa Barbara Foundation Filed in the
Court of Common Pleas of Lucas County, Ohio .... A38
Answer of Trust No. 4118 Filed in the Court of Com-
mon Pleas of Lucas County, Ohio ........0.22.2.2.......... A4l
Stipulations and Attached Exhibits Filed in the Court
of Common Pleas of Lucas County, Ohio, April
Ss RE esac cage caaece eee seca kdiphcins aiceedsibibusansncensontopeionpesecin A43
BEUEDL: Fa MG FARING vavvcnsessccecsovsinsnnansecesnscendacscnens A48
Exh. B. Will of Marcia MacDonald Rivas .............. A67
II
Exh. C. Declaration of Declination - Alcoholics
SOGOU, pssst escsnsneerrsenieiioteniiaaasiamaaas A74
Exh. D. Petition for Determination of Entitle-
ment to Distribution of Estate - Santa Barbara
Fowun@atiot® nck cia A76
Exh. E. Notice of Hearing (Probate) .................... A86
Exh. F. Order Determining Entitlement to Distri-
bution of TD iicccic nce cieneneene A96
Exh. G. Articles of Incorporation, Santa Barbara
Foumetiot ini cesses A101
California Probate Code, $1200.5 .................................... A106
Al
APPENDIX
OPINION OF THE SUPREME COURT OF OHIO
(Decided August 26, 1987)
No. 86-1064
THE SUPREME COURT OF OHIO
CoLUMBUS
TOLEDO TRUST COMPANY, TRUSTEE OF
TRUST NO. 4117,
Appellee,
V.
SANTA BARBARA FOUNDATION,
Appellant,
and
TOLEDO TRUST COMPANY, TRUSTEE OF
TRUST NO. 4118, et al.,
Appellees.
[32 Ohio St. 3d 141]
Trusts—Testamentary special power of appointment con-
ferred by Ohio trust—Effective exercise by donee de-
termined by law of his domicile—Determination of
intent of donee in exercising power is entitled to full
faith and credit, when—Foreign judgment carries pre-
sumption of validity, when.
O.Jur 3d Estates etc. § 192.
1. The determination of whether a testamentary special
power of appointment conferred by an Ohio trust
has been effectively exercised by the donee is gov-
A2
erned by the law of the jurisdiction wherein the
donee was domiciled at the time of the power’s pur-
ported exercise.
O.Jur 3d Judgments § 351.
2. A foreign judgment pronounced by a court of record
of general jurisdiction, regular on its face, carries
with it the presumption of validity.
3. The determination of the intent of a donee in exercis-
ing a testamentary special power of appointment by
a court of competent jurisdiction of the state within
which the donee is domiciled at the time of the
power’s exercise is binding in any subsequent ju-
_ dicial proceedings in Ohio and entitled to full faith
and credit with respect thereto.
AppEAL from the Court of Appeals for Lucas County.
On January 28, 1960, a written trust agreement was
executed between Toledo Trust Company and Nancy S.
Jones whereby a trust for the benefit of Marcia MacDonald
Rivas, daughter of Nancy S. Jones, was created (‘Rivas
trust”). Contemporaneously with the creation of this
trust, another trust was created for the benefit of Roberta
Pawlak, the other daughter of Nancy S. Jones (“Pawlak
trust”). The Rivas trust granted to Marcia Rivas a tes-
tamentary special power of appointment whereby she
could designate certain charitable beneficiaries of the
trust corpus. The agreement provided in relevant part:
“(2) Upon the death of the Donor’s said daughter,
the then existing principal shall be distributed to such
one or more among her issue, spouses (including widows
and widowers) of such issue, sister, sister’s issue, and
any institutions or associations organized and operated
A3
exclusively for religious, charitable, scientific, literary or
educational purposes, in such shares or proportions and
upon such terms, conditions and estates in trust or other-
wise, as the Donor’s said daughter may by her Last Will
and Testament appoint, provided that her said Will shall
expressly refer to the power of appointment hereunder,
and provided further that such power of appointment
shall not be exercisable in favor of the Donor’s said
daughter, her estate, her creditors or the creditors of
her estate.”
The Rivas trust further provided:
“(3) To the extent the Donor’s daughter fails effec-
tively to exercise the power of appointment granted to
her in the proceeding paragraph (2), at the time of her
death the then existing principal (including accumulated
income) shall be held or distributed as follows:
“(a) If the Donor’s daughter leaves issue living at
' the time of her death, such principal shall vest per stirpes
in and, subject to the provisions of paragraph (4) hereof,
be distributed to such of her issue as are living at that
time;
“(b) If said daughter leaves no issue living at the
time of her death, then such principal shall be distrib-
uted as follows:
“(i) If the Donor’s daughter, Roberta, is living at
that time, it shall be added to and become a part of the
trust created simultaneously herewith for the benefit of
the Donor’s daughter, Roberta, with the Toledo Trust
Company as Trustee and designated on the trustee’s rec-
ords as Trust No. 4118 and shall be administered and
distributed in accordance with the provisions thereof.
* & *)») ;
A4
Marcia Rivas died on November 10, 1982, a resident
of Santa Barbara, California. At the time of her death,
she was survived by her sister, Roberta Pawlak. Her
last will and testament was admitted to probate on
August 1, 1983. The will provided for the exercise of
the testamentary special power of appointment granted
by the trust agreement. It provided in relevant part:
Under that certain Trust Agreement entered into
January 25 [sic], 1960, between my mother, NANCY S.
JONES and TOLEDO TRUST COMPANY, I have a spe-
cial power of appointment. The permissible appointees
under this power of appointment are limited to my issue,
spouses (including widows and widowers) of such issue,
my sister, my sister’s issue, and any institutions or asso-
ciations organized and operated exclusively for religious,
charitable, scientific, literary or educational purposes. I
exercise this power of appointment by appointing all
property subject to this power as follows:
6 * *
“(I) Ten percent (10%) thereof shall be distrib-
uted to ALCOHOLICS ANONYMOUS, Central Office,
1129 State Street, Santa Barbara, California 93101.”
Alcoholics Anonymous declined to accept more than
$500 of the trust distribution—adhering to a policy where-
by gifts in excess of this amount are accepted only from
members of the organization.
On September 16, 1983, appellant petitioned the Supe-
rior Court of the state of California, County of Santa
Barbara, for a determination of entitlement to the trust
proceeds. Notice of this action was received by appellees
Toledo Trust Company and Nancy S. Jones.
A5
The superior court, utilizing the equitable doctrine
of cy pres, substituted the Santa Barbara Foundation
for Alcoholics Anonymous as an appointee of the trust
proceeds. Santa Barbara Foundation is a non-profit cor-
poration organized for the treatment and care of alco-
holics. The court entered an order directing that Santa
Barbara be substituted for Alcoholics Anonymous as the
beneficiary of ten percent of the trust assets.
Having obtained the California order, the Santa Bar-
bara Foundation applied to Toledo Trust Company, as
trustee of the Rivas trust, for payment of the funds gov-
erned by the order. The trustee refused and thereafter
instituted the present declaratory judgment action.
Ruling on cross-motions for summary judgment filed
by the respective parties, the trial court determined that
the refusal of Alcoholics Anonymous to accept all but
$500 of the distribution defeated an effective exercise
of power of appointment under the trust. The court
therefore granted summary judgment in favor of the To-
ledo Trust Company, as trustee of the Pawlak trust, and
ordered that pursuant to the terms of the Rivas trust
agreement, the amount in controversy be distributed to
the Pawlak trust. This determination was affirmed by
the court of appeals.
The cause is now before this court upon the allow-
ance of a motion to certify the record.
Marshall & Melhorn and Donald F. Melhorn, Jr., for
appellee Toledo Trust Company, Trustee for Trust No.
4117.
Watkins, Bates & Handwork, William F. Bates, John
J. McHugh III and Gary O. Sommer, for appellant.
A6
Robinson, Curphey & O’Connell and Michael S. Mes- .
senger, for appellees Toledo Trust Company, Trustee for
Trust No. 4118 and Nancy S. Jones.
Sweeney, J. The crucial question presented by this
appeal is the effect, if any, that the order of the Cali-
fornia superior court has on the instant proceeding. It
is axiomatic that, in interpreting the terms of a will, the
intention of the testator is paramount. Sherman v. Sher-
man (1966), 5 Ohio St. 2d 27, 34 0.0. 2d 48, 213 N.E. 2d
360; Johnson v. Johnson (1894), 51 Ohio St. 446, 38 N.E.
61; Townsend’s Exrs. v. Townsend (1874), 25 Ohio St.
477. This rule is equally applicable in determining
whether a testamentary power of appointment has been
exercised. Bishop v. Remple (1860), 11 Ohio St. 277, 282;
Arthur v. Odd Fellows’ Beneficial Assn. (1876), 29 Ohio
St. 557, 561.
The ascertainment of testamentary intent often re-
quires that reference be made to common-law or stat-
utory rules of construction. Where such reference is
necessary, the law of the state wherein the testator was
domiciled and his will probated is to be applied. Lozier
v. Lozier (1919), 99 Ohio St. 254, 124 N.E. 167.
While the specific issue involved in this appeal has
not been previously submitted for our consideration, we
are persuaded that the law of the state in which the
decedent resided at the time of her death should apply
in determining whether there has been an effective exer-
cise of her testamentary special power of appointment.
On this point the observation by the Seventh Circuit
Court of Appeals in White v. United States (C.A. 7, 1982),
680 F. 2d 1156, 1159, is particularly instructive: “Given
the realities of the situation, it seems logical to focus
7
:
:
a
A7
on the donee’s express, implied, or constructive intent to
exercise his power as determined by the rules of his
state. The language of the donee’s will is his own and
should be considered according to the laws under which
his will was drafted and with which he was presumably
most familiar, those of his own domicile.” (Emphasis
added.) See, also, In re Morgan Guaranty Trust Co.
(1971), 28 N.Y. 2d 155, 320 N.Y. Supp. 2d 905, 269 N.E.
2d 571; Ward v. Stanard (1903), 82 App. Div. 386, 81
N.Y. Supp. 906.
Marcia MacDonald Rivas was a California domiciliary
at the time of her death. Her will was executed and ad-
mitted to probate in the state of California. In its order
determining entitlement to distribution of the Rivas estate,
the California superior court quite properly applied the
cy pres doctrine to the present controversy. It is beyond
question that application of the doctrine was in accordance
with California law. See O’Hara v. Grand Lodge, Inde-
pendent Order of Good Templars (1931), 213 Cal. 131, 2
P. 2d 21; In re Faulkner’s Estate (1954), 128 Cal. App. 2d
575, 275 P. 2d 818.
We, therefore, hold that the determination of whether
a testamentary special power of appointment conferred by
an Ohio trust has been effectively exercised by the donee
is governed by the law of the jurisdiction wherein the
donee was domiciled at the time of the power’s purported
exercise.
Despite the correct application of California law to
the testamentary disposition, appellees, Toledo Trust Com-
pany, as trustee of the Pawlak trust, and Nancy Jones,
maintain that the judgment of the California superior
court is not entitled to full faith and credit because the
A8
court failed to obtain jurisdiction over the trustee or the
trust res. There are two elements to this argument.
As an initial matter, it is necessary to consider whether
appellees were properly apprised of the California proceed-
ings. In stipulations of fact submitted to the Lucas County
Court of Common Pleas, Toledo Trust Company has ac-
knowledged receiving notice of the entitlement hearing.
Moreover, the findings of the California superior court
include a determination that “[aJll notices of the hearing
have been given as required by law.”
This court has previously observed that “[a] judg-
ment pronounced by a court of record of general jurisdic-
tion, regular on its face, carries with it the presumption
of validity.” Ford v. Ideal Aluminum, Inc. (1966), '7 Ohio
St. 2d 9, 13, 36 O.0. 2d 5, 7, 218 N.E. 2d 434, 436. This
presumption applies with equal force to judgments ren-
dered by the courts of sister states. Appellees do not con-
tend that the California proceeding failed to comply with
the law of that state, nor do they adduce any evidence
in support of such contention. We, therefore, hold that
a foreign judgment pronounced by a court of general ju-
risdiction, regular on its face, carries with it the presump-
tion of validity.
An additional component of the argument advanced
by appellees concerns the perceived deficiency of the
California court in obtaining jurisdiction over the trust
assets located in Ohio. In support of their position, ap-
pellees rely upon the holding of the United States Supreme
Court in Hanson v. Denckla (1958), 357 U.S. 235. This
argument, however, misapprehends the nature of the Cali-
fornia proceeding. In Hanson v. Denckla, supra, the Su-
preme Court clearly stated the basis for its determination
A9
not to afford full faith and credit to a Florida decision af-
fecting a Delaware trust: “* * * [s]o far as it purports to
rest upon jurisdiction over the trust assets, the judgment
of the Florida court cannot be sustained.” Id. at 250. The
California judgment in the case at bar presumed to do
no such thing. The decision of the California superior
court merely sought to ascertain and give effect to the
testamentary intent of a California domiciliary. As men-
tioned above, it was the proper forum to make this de-
termination. Once rendered, the judgment was entitled
to full faith and credit in any subsequent Ohio proceeding
governing the disposition of the trust assets.
It is our conclusion, therefore, that the determination
of the intent of a donee in exercising a testamentary spe-
cial power of appointment by a court of competent juris-
diction of the state within which the donee is domiciled
at the time of the power’s exercise is binding in any sub-
sequent judicial proceedings in Ohio and entitled to full
faith and credit with respect thereto.
Accordingly, the judgment of -the court of appeals is
reversed and the cause is remanded to the trial court for
further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
Moyer, C.J., HoLMeEs, DouGLAs, WriGHT and H. Brown,
JJ., concur.
LocHER, J., dissents.
Locuer, J., dissenting. Although I have no quarrel
with the general principles of law expressed in the syl-
labus and majority opinion, I must dissent because it is
clear that the California superior court erroneously ap-
Al0
plied the doctrine of cy pres in the case sub judice. Be-
cause the California judgment is contrary to California
law, and because the California court had no jurisdiction
over the trust assets in question, I would hold that the
judgment of that court is not entitled to full faith and
credit in the courts of Ohio.
To begin, a review of relevant California law reveals
a statute which expressly provides for a result contrary
to that reached by the California superior court and the
majority opinion. California Civ. Code Section 1389.3
states: wmneoianl
“(a) Except as provided in subdivision (b), when the
donee of a discretionary power of appointment fails to
appoint the property, releases the entire power, or makes
an ineffective appointment, in whole or in part, the appoin-
tive property not effectively appointed passes to the person
or persons named by the donor as takers in default or, if
there are none, reverts to the donor.
“(b) When the donee of a general power of appoint-
ment makes an ineffective appointment, an implied al-
ternative appointment to the donee’s estate may be found
if the donee has manifested an intent that the appointive
property be disposed of as property of the donee rather
than as in default of appointment.” (Emphasis added.)
This statute is clearly on point. The donee, Marcia
Rivas, made an ineffective appointment when Alcoholics
Anonymous refused to accept more than $500 of the trust
distribution. Marcia Rivas also had a discretionary power
of appointment. See California Civ. Code Section 1381.4.
Thus, under Section 1389.3(a), the trust assets not ef-
fectively appointed by the will of Marcia Rivas pass to
the taker in default as provided by the trust document,
All
namely the Roberta Pawlak trust. Also on point is Estate
of Eddy (1982), 134 Cal. App. 3d 292, 184 Cal. Rptr. 521,
in which it was held that unde: the statute, where a donee
failed to effectively exercise a power of appointment in
her will, the trust property passed to the donor’s son,
who was named as the taker in default. In light of the
statute and this case, it can only be concluded that the
California superior court erred when it applied the doc-
tride of cy pres to the trust assets in question.
The California decision is also invalid because it ig-
nored the express language of the trust to the effect that
if the donee failed to make an effective appointment, the
trust property was to be held for or distributed to one of
the named takers in default. The cy-pres doctrine is de-
signed to give effect to the intent of a donor, not to thwart
it. For this reason, the cy-pres doctrine does not apply
where, as here, the donor’s intent is to the contrary. See,
e.g., Restatement of the Law 2d, Trusts (1959), Section 399,
Comment c, at 299; Section 401, Comment d, at 311.
Generally, the final judgment of a sister state’s court
must be given full faith and credit where that court had
jurisdiction over the parties and the subject matter, even
if the judgment is erroneous. See Milliken v. Meyer
(1940), 311 U.S. 457, 462, However, a judgment of a
sister state’s court is subject to collateral attack in Ohio if
there was no subject matter or personal jurisdiction to
render the judgment under the sister state’s internal law,
and under that law the judgment is void.
The California superior court in this case had no
jurisdiction over either Toledo Trust Company, the trustee,
or the trust assets. The mere fact that notice of the hear-
ing in the California superior court was mailed to Toledo
Al2
Trust does not subject Toledo Trust to the jurisdiction
of that court. Furthermore, since the trust assets belong
to the Roberta Pawlak trust, the California superior court
had no jurisdiction over them. See Hanson v. Denckla
(1958) 357 U.S. 235. The majority unpersuasively at-
tempts to distinguish Hanson by stating that the California
decision “merely sought to ascertain and give effect to the
testamentary intent of a California domiciliary,” rather
than exercise jurisdiction over the trust assets. In my
view, this is a meaningless distinction, for how could the
California court purport to decide to whom to distribute
the trust assets without exercising jurisdiction over those
assets?
In summary, the majority opinion is ill-founded be-
cause it merely presumes that the California judgment
is valid. A closer look, however, reveals that under Cali-
fornia law the California superior court had no jurisdiction
over the parties or the subject matter in question, render-
ing the California judgment void. Consequently, I would
hold that the California judgment is not entitled to full
faith and credit, and I would affirm the summary judg-
ment of the trial court in favor of the Toledo Trust Com-
pany. Accordingly, I dissent.
DiGi cehincndn
Bik Nie net ee
Al3
DECISION AND JOURNAL ENTRY OF THE COURT
OF APPEALS OF LUCAS COUNTY, OHIO
(Filed May 9, 1986)
C. A. No. L-85-293
COURT OF APPEALS OF OHIO
SrxtH DIstTRIcT
County or Lucas
THE TOLEDO TRUST COMPANY AS TRUSTEE
OF TRUST NO. 4117,
Appellee,
vs.
SANTA BARBARA FOUNDATION,
Appellant,
and
THE TOLEDO TRUST COMPANY AS TRUSTEE OF
TRUST NO. 4118
and
NANCY S.- JONES,
Appellees.
APPEAL From Lucas County ComMmon PLEAS Court
No. CV 83-2699
DECISION AND JOURNAL ENTRY
This case comes before the court on a judgment of the
Lucas County Court of Common Pleas. The trial court,
upon review of the stipulations and documents in evidence,
granted plaintiff-appellee’s motion for summary judgment.
The court ordered that the assets disclaimed by the Al-
Al4
coholics Anonymous were to be distributed to trust No.
4118, decedent’s sister’s trust.
On January 28, 1960, Nancy Jones named the Toledo
Trust Co. as trustee for two trusts which were created
for the benefit of her two daughters, Marcia McDonald
Rivas and Roberta Pawlak. The trust contained a testa-
mentary special power of appointment allowing each
daughter to make distributions of principal and accumu-
lated income to specified members of a class; said class
included each daughter’s issue, spouses of said issue, a
sister, the sister’s issue, and institutions organized and
operated exclusively for religious, charitable, scientific,
literary or educational purposes.
The trust agreement also contained the following pro-
vision, as set forth in pertinent part:
“(3) To the extent the Donor’s daughter fails effec-
tively to exercise the power of appointment granted
to her in the preceding paragraph (2), at the time of
her death the then existing principal (including ac-
cumulated income) shall be held or distributed as
foliowa * > *.15"
Provision (3) then provided that said proceeds would go
to the deceased daughter’s issue per stirpes, if any. If
the daughter had no surviving issue, the proceeds were
to go to her sister’s trust, if the sister was living at the
time of the death. This latter provision was pertinent
since decedent’s sister was alive at the time of decedent’s
death.’
1. There were additional provisions pertaining to the dis-
tribution of the proceeds upon the death of Jones’ daughter, if
the deceased individual’s sister was not alive at the time of the
death. However, those provisions are not applicable based on
the facts set forth in this case.
Arter cett t
et ar a
se eaten ee al a dr Ce ce oe Oe ee
Al5
On November 10, 1982, Marcia Rivas died, and was
survived by her sister, Roberta Pawlak. In her last will
and testament Marcia Rivas exercised the special power
of appointment contained in the trust agreement. Dis-
tributions were made in favor of eleven charities, includ-
ing Alcoholics Anonymous of Santa Barbara, California.
Alcoholics Anonymous declined the gift, except for an
amount totaling $500. Subsequently, the Superior Court
of the State of California, County of Santa Barbara, entered
an order directing that the proceeds be distributed to
Alcoholics Anonymous, in excess of $500, be paid to the
Santa Barbara Foundation, appellant herein.
Toledo Trust declined to distribute the funds, and
sought direction of the court to determine who was en-
titled to receive the proceeds. At the lower court, appel-
lant raised three principle issues. First, appellant argues
that decedent made an effective and valid exercise of her
special power of appointmet when she allocated the pro-
ceeds to Alcoholics Anonymous, and that the California
court, by application of the doctrine of cy pres, fulfilled
her donative intent by ordering the distribution of the
proceeds to appellant. Alternatively, appellant argues
that the doctrine of cy pres should apply even under the
laws of the state of Ohio and distribution should be made
accordingly. Further, appellant argues that the California
judgment was entitled to full faith and credit and as such,
appellant was entitled to receipt of the proceeds.
Defendant Toledo Trust contended that there was no
valid exercise of the special-power of appointment, since
Alcoholics Anonymous refused to accept the distribution
of the »vroceeds. Toledo Trust further argued that the
doctrine of cy pres was not applicable, and that the judg-
Al6
ment of the California court was not entitled to full
faith and credit.
The trial court, after thorough analysis of the novel
issues raised, ruled that there had not been a valid and
effective exercise of the special powers of appointment.
Having so ruled, the court concluded that it need not
reach the issues of application of cy pres and the question
concerning whether full faith and credit should be granted
the California judgment.
Based on the well-reasoned opinion of the trial court,
which this court adopts as part of its reasoning, we affirm
the decision of the lower court.’
2. The court stated as parts of its decision:
“The court has conducted a thorough review of the case law
in Ohio and finds itself without guidance on this issue. While
the case law has addressed the technical requirements for
a valid exercise it has not addressed the effect of an ap-
pointee’s disclaimer on the exercise of a special power of
appointment. Santa Barbara’s position is that since Ms.
Rivas complied with both the common law requirements
necessary for a valid exercise and with the specific terms of
the Rivas trust, the exercise was valid. Defendant Toledo
Trust distinguished between a valid exercise and an ef-
fective exercise, arguing that an effective exercise requires
an actual transfer of the appointed assets to the donee.
Since Alcoholics Anonymous disclaimed all but $500 of the
appointed assets, Toledo Trust maintains that the exercise
was ineffective and the gift-over provision takes effect.
“After careful consideration of the ramification of both posi-
tions, the Court finds the argument of defendant Toledo
Trust persuasive. Critical to the Court’s decision is the
principle that property over which one has a special power
of appointment is considered to be property of the donor
of the power; the donee of the power only acts on behalf
of the donor. Cleveland Trust Co. v. McQuade, 106 Ohio
App. 237 (1957). Unless the donee effectively transfers
the property to the appointee, ownership remains in the
donor; the donee never becomes the owner of the property.
Therefore, it appears to this Court that acceptance by the
appointee is necessary for the effective transfer of owner-
(Continued on following page)
se | :
The primary issue is whether the trust agreement,
dated January 28, 1960, permits the application of the
doctrine of cy pres to establish that the donee’s testamen-
tary disposition constituted a valid and effective exercise
of the special power of appointment, where the donee’s
disposition was declined by the beneficiary.®
As recognized by the lower court, the validity of
the special power of appointment is to be determined
under the law governing the validity of the instrument
under which the power was created. Bogert, Trust &
Trustees (2d Ed. Rev. 1977 & Supp. 1985) 482, Section
299; Cleveland Trust Co. v. Shuman (1974), 68 0.0. 2d
332. 6
A-valid exercise of a special power of appointment
occurs when the donee’s instrument meets the formalities
Footnote continued—
ship and thereby, for an effective exercise of the power.
Accord, Commissioner v. Cardeza’s Estate, 173 F. 2d 119 (3d
Cir. 1949); 5 Page on Wills §45.23 (4th Ed. 1962); see, 5
A.W. Scott, The Law of Trusts, §427 (3d Ed. 1967).
“Application of the foregoing to the instant facts requires
the Court to conclude that the exercise of the special power
of appointment was ineffective, leaving ownership of the
assets with the donor. Thus, it is the donor’s intent which
will guide distribution of the assets and not that of the
donee. The donor’s intent is clearly evidenced by the gift-
over provision which requires distribution of the assets
to trust No. 4118 in the event of default of appointment.
Accordingly, the Court finds that the assets disclaimed by
Alcoholics Anonymous are to be distributed pursuant to that
provision.
“In light of the foregoing determination, the Court need not
reach the issues of the validity of the California judgment
and the applicability of the doctrine of cy pres.”
3. Appellants state as their assignments of error:
“Assignment of Error No. 1: The Trial Court Erred in Rul-
ing that Marcia McDonald Rivas Failed Effectively to Ex-
ercise the Power of Appointment Granted to Her Under
Trust No. 4117.”
ai |
Al8
required by the applicable state law and complies with
the limitations set forth in the originating document.
While the formalities may have been met in this
case, the question of the effectiveness of the disposition
remains in question due to Alcoholics Anonymous’s re-
fusal to accept the proceeds.
In this case, the disposition of the trust proceeds
was unquestionably intended for charitable purposes. It
is equally clear that the intended distribution was re-
jected and as such the trust failed. At this point in
the lower court’s analysis, the court determined that the
rejection of the distribution constituted an ineffective
transfer of the proceeds and as such, the lower court
rejected Santa Barbara’s claim for the proceeds. While
the lower court was correct in its conclusion, the court
only made the first inquiry in the analysis.
The initial inquiry necessitates a review of the doc-
ument creating the special power of appointment to deter-
mine the extent of the powers granted. The next in-
quiry necessitates a determination of whether the exer-
cise of the special power of appointment failed. If the
initial exercise of the special power of appointment fails
for whatever purpose, the third step requires the deter-
mination of whether the originating document permits
the failed distribution to be allocated to someone other
than the intended beneficiary. Fourth and finally, if
the originating document permits a failed distribution
to be allocated to another, the court must then determine
whether the doctrine of cy pres may be applied in order
to carry out the intent of the donee. Cf. Restatement
of Law Second, Trusts 2d (1957 & Supp. 1983-84) 299,
305, Section 399, comments c and o.
Al9
Here the original device failed. As such, we must
determine whether the trust agreement permitted the
donee to make an additional distribution of the property.
In instances where the donee has been given the
special power of appointment, the intent of the donee’s
exercise of power must be construed within the basic
limitations prescribed by the donor. Consequently, while
the donee may have manifested a general donative intent
which would have supported the application of the doc-
trine of cy pres, the application of the doctrine may not
be applied if the settlor, in the trust agreement, restricted
the donee’s special powers of appointment.
With respect to specific provisions being set forth
in the trust, the Restatement of Law, supra, at 299, Sec-
tion 399, has stated, in situations not specifically relating
to special powers of appointment:
“If property is given in trust to be applied to a partic-
ular charitable purpose, and it is provided by the
terms of the trust that if the purpose should fail
the trust should terminate, the property will not be
applied cy pres on the failure of the particular pur-
pose, since the terms of the trust negative the exis-
tence of a. general charitable intention. In such a
case there will be a resulting trust for the settlor
or his estate, unless there is a valid gift over. See
Section 413. * * *”
Restatement of Law, Trusts, supra, at 348, Section
413, comment b, states further:
“Tf the settlor properly manifested an intention that
if the charitable trust should fail the trustee should
hold the surplus upon another charitable trust or upon
A20
a valid private trust, no resulting trust arises but
the trustee holds the property upon the other chari-
table or private trust.”
The foregoing passages serve to recognize that the doc-
trine of cy pres is not applicable where the terms of the
trust agreement provide for an alternative distribution
of the proceeds, if the donee fails to make an effective ex-
ercise of the special power of appointment.
In this case, the originating document, i.e. trust agree-
ment, states that if there is an ineffective testamentary
disposition, then the proceeds shall go to one of several
alternatives. This provision_serves to negate the appli-
cation of the doctrine of cy pres since the original donor
made an express statement as to who should receive the
proceeds upon an ineffective transfer. See Restatement
of the Law, Trusts, Sections 348, 349 and 413. The express
provisions in the ddcument prohibit the application of
the cy pres doctrine. Accordingly, when the distribution
to the Alcoholics Anonymous was declined, the testa-
mentary disposition failed. The application of the doc-
trine of cy pres was not possible since the trust agree-
ment provided for an alternative disposition of the pro-
ceeds. Said alternative disposition required, based upon
the facts, that the proceeds that were to be allowed to
Alcoholics Anonymous shall be placed in trust No. 4118,
the Pawlak trust.
Accordingly, appellant’s three assignments of error
are found not well-taken.
On consideration whereof, this court finds substantial
justice was done the parties complaining, and judgment
of the Lucas County Court of Common Pleas is affirmed.
Cause is remanded to said court for further proceedings
according to law. Costs to appellants.
A21
A certified copy of this entry shall constitute the
mandate pursuant to Rule 27 of the Rules of Appellate
Procedure. See also Supp. R. 4, amended 1/1/80.
ARTHUR WILKOWSEI, J.,
RicHarp B. McQuape, Jr., J., and
JAMES E. THIERRY, J.
Concur.
Judge Richard B. McQuade, Jr., Fulton County Court of
Common Pleas, and Judge James E. Thierry, Ottawa
County Court of Common Pleas, sitting by assignment
of the Chief Justice of the Supreme Court of Ohio.
A22
SUPPLEMENTAL DECISION AND ORDERS OF
THE COURT OF APPEALS OF LUCAS COUNTY,
OHIO
(Filed May 21, 1986)
No. L-85-293
IN THE COURT OF APPEALS OF LUCAS COUNTY
THE TOLEDO TRUST COMPANY AS TRUSTEE
OF TRUST NO. 4117,
Appellee,
V.
SANTA BARBARA FOUNDATION,
Appellant,
and
THE TOLEDO TRUST COMPANY AS TRUSTEE OF
TRUST NO. 4118 AND NANCY S. JONES,
Appellees.
DECISION AND JOURNAL ENTRY
This matter comes before the. court, sua sponte. On
May 9, 1986, this court released a decision entitled The
Toledo Trust Co. v. Santa Barbara Foundation (May 9,
1986), Lucas App. No. L-85-293, unreported.
On page three, paragraph one, the first sentence reads
as follows:
“Defendant Toledo Trust contended that there was no
valid exercise of the special power of appointment,
since Alcoholics Anonymous refused to accept the
distribution of the proceeds.”
A23
The sentence is corrected to read as follows
“Defendant Toledo Trust contended that there was no
effective exercise of the special power of appointment,
since Alcoholics Anonymous refused to accept the
distribution of the proceeds.”
ARTHUR WILKOWSKI,
~Ricuarp B. McQuapg, JR., and
JAMES E. Turerry, JJ.,
Concur.
Judge Richard B. McQuade, Jr., Fulton County Court of
Common Pleas, and Judge James E. Thierry, Ottawa
County Court of Common Pleas, sitting by assignment
of the Chief Justice of the Supreme Court of Ohio.
A24
OPINION AND JUDGMENT ENTRY OF THE COURT
OF COMMON PLEAS OF LUCAS COUNTY, OHIO
(Filed July 29, 1985)
Case No. 83-2699
IN THE COURT OF COMMON PLEAS
OF LUCAS COUNTY, OHIO
THE TOLEDO TRUST COMPANY, AS TRUSTEE
OF TRUST NO. 4117,
Plaintiff,
VS.
SANTA BARBARA FOUNDATION, et al.,
Defendants.
OPINION AND JUDGMENT ENTRY
This cause comes before the Court upon the cross-
motions of defendant Santa Barbara Foundation and de;
fendant Toledo Trust Company, as Trustee of Trust No.
4118, for summary judgment. The cause was submitted
on the pleadings, the written stipulations of fact, and the
written memoranda of counsel and attachments thereto.
Upon consideration of the same, the Court finds that de-
fendant Toledo Trust’s motion is well-taken and is granted
in accordance with the principles set forth herein.
The facts as stipulated to by the parties are as fol-
lows. On January 28, 1960, Nancy S. Jones, as Donor,
entered into two written trust agreements with the Toledo
Trust Company as Trustee. Trust No. 4117 was created
for the Donor’s daughter, Marcia McDonald Rivas (here-
after Rivas trust) and Trust No. 4118 was created for the
A25
Donor’s other daughter, Roberta Pawlak (hereafter Paw-
lak trust). Both trusts granted the beneficiary a testa-
mentary special power of appointment over the corpus
of the trust with a gift-over provision in the event the
beneficiary failed to effectively exercise the power. In
default of appointment, the principal of the Rivas trust
was to pass to Ms. Rivas’ issue or, if none, to the Pawlak
trust.
Marcia McDonald Rivas died on November 10, 1982,
a resident of Santa Barbara, California; she left no issue
and was survived by her sister, Roberta Pawlak. Ms.
Rivas left a Last Will and Testament dated March 14, 1980
which was admitted to probate in the Superior Court of
the State of California, County of Santa Barbara, on August
1, 1983. Pursuant to her will, Mr. Rivas acted to exercise
her special power of appointment by appointing ten per-
cent (10%) of all property subject to the power of ap-
pointment to Alcoholics Anonymous, Santa Barbara, Cali-
fornia. Alcoholics Anonymous declined to accept all but
$500.00 of the bequest. The Santa Barbara Foundation
subsequently filed a Petition for Determination of Entitle-
ment to Distribution of Estate in the Supreme Court of
the State of California, County of Santa Barbara, seeking
to be appointed charitable trustee of the declined assets
pursuant to the doctrine of cy pres. Hearing on the Peti-
tion was set for October 6, 1983 and notice was sent to
all persons who may have had an interest in the estate,
including the Toledo Trust Company.
On October 13, 1983, the Supreme Court ordered that
10% of the assets of the Rivas trust be distributed to Santa
Barbara Foundation, to be held and administered as a
charitable trust pursuant to the terms of the Order. Fol-
lowing the ruling, Santa Barbara applied to the Toledo
col
A26
Trust Company for payment of the funds. Toledo Trust
has declined to pay the funds pending the advice and in-
struction of the Court.
The motions for summary judgment present a num-
ber of complex and novel issues to the Court. Defendant
Santa Barbara Foundation perceives the critical issue to
be the power of the California Court to appoint it as
charitable trustee of the disclaimed assets of Alcoholics
Anonymous. This position presumes that the exercise of
the special power of appointment was effective and that
disposition of the disclaimed bequest was to be determined
by the intention of Ms. Rivas, a matter of will construction,
and therefore, determinable pursuant to California law.
Santa Barbara thereby argues that effect should be given
to the California proceeding. Alternatively, Santa Barbara
maintains that application of Ohio’s doctrine of cy pres
will yield the same result.
In opposition, defendant Toledo Trust, as Trustee of
Trust No. 4118, presents three issues to the Court. First,
the defendant argues that the California judgment should
not be afforded full faith and credit as it was rendered
without jurisdiction over the trust res, the trustee, or the
takers in default. Second, Toledo Trust contends that the
exercise of the power of appointment was not effective,
thereby triggering the gift-over provision and requiring
distribution of the disclaimed assets to Trust No. 4118.
Finally, the defendant claims that the instant facts do not
support the application of the doctrine of cy pres, either
under Ohio or California law.
The Court perceives the threshold issue to be the ef-
fectiveness of the exercise of the power of appointment. If
the exercise was ineffective, the remainder interest of
A27
Trust No. 4118 was not divested and the Court would then
be confronted with the issue of the validity of the Cali-
fornia judgment. If the exercise of the power was ef-
fective, thereby divesting Trust No. 4118 of its remainder
interest the jurisdiction of the California court was prop-
erly exercised and the judgment entitled to full faith and
credit.
It is undisputed that this question is to be determined
under the law of the domicile of the donor of the power.
Cleveland Trust Co. v. Shuman, 68 Ohio Ops.2d 332 (1974);
First Central Trust Co. v. Claflin, 49 Ohio L. Abs. 29
(1947). Therefore, the effectiveness of the exercise of
the power must be determined under the law of Ohio.
The Court has conducted a thorough review of the
case law in Ohio and finds itself without guidance on this
issue. While the case law has addressed the technical
requirements for a valid exercise it has not addressed
the effect of an appointee’s disclaimer on the exercise
of a special power of appointment. Santa Barbara’s posi-
tion is that since Ms. Rivas complied with both the com-
mon law requirements necessary for a valid exercise and
with the specific terms of the Rivas Trust, the exercise
was valid. Defendant Toledo Trust distinguishes between
a valid exercise and an effective exercise, arguing that an
effective exercise requires an actual transfer of the ap-
pointed assets to the donee. Since Alcoholics Anonymous
disclaimed all but $500.00 of the appointed assets, Toledo
Trust maintains that the exercise was ineffective and
the gift-over provision takes effect.
After careful consideration of the ramifications of
both positions, the Court finds the argument of defendant
Toledo Trust persuasive. Critical to the Court’s decision
|
A28
is the principle that property over which one has a special
power of appointment is considered to be property of the
donor of the power; the donee of the power only acts on
behalf of the donor. Cleveland Trust Co. v. McQuade,
106 Ohio App. 237 (1957). Unless the donee effectively
transfers the property to the appointee, ownership remains
in the donor; the donee never becomes the owner of the
property. Therefore, it appears to this Court that accep-
tance by the appointee is necessary for the effective trans-
fer of ownership and thereby, for an effective exercise of
the power. Accord, Commissioner v. Cardeza’s Estate, 173
F.2d 19 (3rd Cir. 1949); 5 Page on Wills §45.23 (4th ed.
1962); See, 5 A.W. Scott, The Law of Trusts, §427 (3rd
ed. 1967).
Application of the foregoing to the instant facts re-
quires the Court to conclude that the exercise of the special
power of appointment was ineffective, leaving ownership
of the assets with the donor. Thus, it is the donor’s intent
which will guide distribution of the assets and not that
of the donee. The donor’s intent is clearly evidenced by
the gift-over provision which requires distribution of the
assets to Trust No. 4118 in the event of default of appoint-
ment. Accordingly, the Court finds that the assets dis-
claimed by Alcoholics Anonymous are to be distributed
pursuant to that provision.
In light of the foregoing determination, the Court
need not reach the issues of the validity of the California
judgment and the applicability of the doctrine of cy pres.
JUDGMENT ENTRY
It is therefore ORDERED, ADJUDGED and DECREED
that the motion for summary judgment of defendant Toledo
A29
Trust, as Trustee of Trust No. 4118, is found to be well-
taken and is hereby granted.
It is further ORDERED that the assets disclaimed
by Alcoholics Anonymous are to be distributed to Trust
No. 4118 in accord with provision 3(b)(1) of Trust No.
4117.
It is further ORDERED that the motion for summary
judgment of defendant Santa Barbara Foundation is found
to be not well-taken and is hereby denied.
/s/ GreorGE M. GLASSER
Judge
A30
ORDER OF THE COURT OF COMMON PLEAS OF
LUCAS COUNTY, OHIO ENFORCING MANDATE
(Filed November 19, 1987)
Case No. 83-2699
IN THE COURT OF COMMON PLEAS
LUCAS COUNTY, OHIO
THE TOLEDO TRUST COMPANY, AS TRUSTEE OF
TRUST NO. 4117,
Plaintiff,
Vs.
SANTA BARABARA FOUNDATION, et al.,
Defendants.
ORDER
In accordance with the Mandate entered by the Su-
preme Court of Ohio on August 26, 1987,
IT IS ORDERED that plaintiff The Toledo Trust
Company, as Trustee of Trust No. 4117, after first taking
all actions required by law including the payment of
legal and other expenses, shall distribute to defendant
Santa Barbara Foundation those assets held in Trust No.
4117 appointed to and declined by Alcoholics Anonymous,
to be held by Santa Barbara Foundation and adminis-
tered as a charitable trust in accordance with the final
judgment and order In The Matter of the Estate of Marcia
MacDonald Rivas, a/k/a Marcia MacDonald, deceased,
Case No. SM38985, entered by the Superior Court of
the State of California, County of Santa Barbara, on
October 13, 1983, and
A31
It is further ORDERED that the Motion for Allow-
ance of Costs of Litigation, Including Counsel Fees filed
on behalf of defendant The Toledo Trust Company, as
Trustee of Trust No. 4118 be denied.
It is further ORDERED that defendant Santa Bar-
bara Foundation recover its costs expended herein.
/s/ FREDERICK H. McDoNna.p
Judge
A32
JUDGMENT ENTRY OF THE SUPREME COURT
OF OHIO
(Dated August 26, 1987)
Case No. 86-1064
THE SUPREME COURT OF OHIO
CoLUMBUS
TOLEDO TRUST COMPANY, TRUSTEE OF
TRUST NO. 4117,
Appellee,
Vv.
SANTA BARBARA FOUNDATION et al.,
Appellants.
APPEAL FROM THE CouRT OF APPEALS
JUDGMENT ENTRY
This cause, here on appeal from the Court of Appeals
for Lucas County, was considered in the manner pre-
scribed by law. On consideration thereof, the judgment
of the Court of Appeals is reversed. and the cause is
remanded to the trial court for further proceedings con-
sistent with the opinion rendered herein.
It is further ordered that the appellants recover from
the appellee their costs herein expended; and that a
mandate be sent to the Court of Common Pleas for Lucas
County to carry this judgment into execution; and that
a copy of this entry be certified to the Clerk of the Court
of Appeals for Lucas County for entry.
/s/ THoMas J. Moyer
Chief Justice
A33
MANDATE OF THE SUPREME COURT OF OHIO
(Filed August 26, 1987)
Case No. 86-1064
THE SUPREME COURT OF OHIO
CoLuMBUS
TOLEDO TRUST COMPANY, TRUSTEE OF
TRUST NO. 4117,
Appellee,
Vv.
SANTA BARBARA FOUNDATION et al.,
Appellants.
MANDATE
To the Honorable Court of Common Pleas
Within and for the County of Lucas, Ohio.
The Supreme Court of Ohio commands you to pro-
ceed without delay to carry the following judgment in
this cause into execution:
Judgment of the Court of Appeals is reversed and
the cause is remanded to the trial court for further pro-
ceedings consistent with the opinion rendered herein.
COSTS:
Motion Fee, $20.00, paid by B. Thomas Handwork, Jr.
/s/ THomas J. Moyer
Chief Justice
A34
ENTRY OF THE SUPREME COURT OF OHIO
DENYING REHEARING
(Dated October 7, 1987)
Case No. 86-1064
THE SUPREME COURT OF OHIO
CoLUMBUS
TOLEDO TRUST COMPANY, TRUST NUMBER 4117,
Appellee,
Vv.
SANTA BARBARA FOUNDATION, et al.,
Appellants.
REHEARING ENTRY
IT IS ORDERED by the Court that rehearing in this
case be, and the same is hereby, denied.
/s/ Tuomas J. MoYER
Chief Justice
A35
COMPLAINT FILED IN THE COURT OF COMMON
PLEAS OF LUCAS COUNTY, OHIO
(Filed November 3, 1983)
No. 83-2699
IN THE COURT OF COMMON PLEAS
OF LUCAS COUNTY, OHIO
THE TOLEDO TRUST COMPANY, AS TRUSTEE
OF TRUST NO. 4117
Three SeaGate
Toledo, Ohio 43603
Plaintiff
v.
SANTA BARBARA FOUNDATION
Santa Barbara, California
ALCOHOLICS ANONYMOUS
CENTRAL OFFICE
1216 State Street
Santa Barbara, California 93101
HON. ANTHONY J. CELEBREEZE, JR.
Attorney General, State of Ohio
30 E. Broad Street
Columbus, Ohio 43215
THE TOLEDO TRUST COMPANY, AS
TRUSTEE OF TRUST NO. 4118
Three SeaGate
Toledo, Ohio 43603; and
NANCY S. JONES
1565 Meadow View Lane
Reno, Nevada 89509
Defendants.
A36
COMPLAINT
Donald F. Melhorn, Jr. (5895)
Marshall & Melhorn
1400 National Bank Building
Toledo, Ohio 43604
(419) 243-4200
Attorney for Plaintiff
1. Plaintiff The Toledo Trust Company, an Ohio
banking corporation authorized to exercise trust powers,
is Trustee of a trust carried on its records as Trust No.
4117, established by written Trust Agreement dated Jan-
uary 28, 1960 between defendant Nancy S. Jones as
Donor and plaintiff as such Trustee, a copy of which Trust
Agreement is here attached as Exhibit A. The situs of said
Trust and the locus of its administration are at plaintiff's
office in Toledo, Lucas County, Ohio.
* * * * *
5. In its separate and distinct capacity as defendant
herein, The Toledo Trust Company is Trustee of another
and different trust, carried qn its records as Trust No.
4118.
* * * * -
10. On September 16, 1983 defendant Santa Barbara
Foundation filed in the Superior Court of the State of
California, County of Santa Barbara, a “Petition for De-
termination of Entitlement to Distribution of Estate.” In
said Petition, docketed under No. SM 38985 of the records
of said Superior Court, defendant Santa Barbara Founda-
tion alleged that defendant Alcoholics Anonymous, Central
Office, had declined as aforesaid, and prayed that said
Superior Court determine who is entitled to assets of Trust
eT
A37
No. 4117 which, but for said declination, would have passed
to said defendant Alcoholics Anonymous, Central Office,
pursuant to the aforesaid terms of paragraph (I), Article
SIXTH of the Will of Marcia MacDonald Rivas. Plaintiff
made no appearance in the aforesaid Superior Court in
response to said “Petition,” or in any proceedings held in
respect thereto.
A38
ANSWER OF SANTA BARBARA FOUNDATION
FILED IN THE COURT OF COMMON PLEAS
OF LUCAS COUNTY, OHIO
No. 83-2699
IN THE COURT OF COMMON PLEAS
OF LUCAS COUNTY, OHIO
THE TOLEDO TRUST COMPANY, AS
TRUSTEE OF TRUST NO. 4117
Three SeaGate
Toledo, Ohio 43603
Plaintiff,
VS.
SANTA BARBARA FOUNDATION
Santa Barbara, California
ALCOHOLICS ANONYMOUS
CENTRAL OFFICE
1216 State Street
Santa Barbara, California 93101
HON. ANTHONY J. CELEBREEZE, JR.
Attorney General, State of Ohio
30 E. Broad Street
toon Columbus, Ohio 43215
THE TOLEDO TRUST COMPANY, AS
TRUSTEE OF TRUST NO. 4118
Three SeaGate
Toledo, Ohio 43603; and
NANCY S. JONES
1516 Meadow View Lane
Reno, Nevada 89509
Defendants.
A39
SANTA BARBARA FOUNDATION,
Santa Barbara, California,
Cross-Complainant,
vs.
THE TOLEDO TRUST COMPANY, AS
TRUSTEE OF TRUST NO. 4118
Three SeaGate
Toledo, Ohio 43603
THE TOLEDO TRUST COMPANY, AS
TRUSTEE OF TRUST NO. 4117
Three SeaGate
Toledo, Ohio 43603
ALCOHOLICS ANONYMOUS
CENTRAL OFFICE
1216 State Street
Santa Barbara, California 93101
HON. ANTHONY J. CELEBREEZE, JR.
Attorney General, State of Ohio
30 E. Broad Street
Columbus, Ohio 43215
NANCY S. JONES
1516 Meadow View Lane
Reno, Nevada 89509
Cross-Defendants.
ANSWER TO COMPLAINT AND CROSS COMPLAINT
Robert L. Bletcher, Esq.
8 E. Fiqueroa St., Ste. 210
Santa Barbara,CA 93101
(805) 965-1016
Attorney for Defendant,
Santa Barbara Foundation
A40
COMES NOW DEFENDANT, SANTA BARBARA
FOUNDATION, and answers the Complaint herein as fol-
lows:
1. Defendant, SANTA BARBARA FOUNDATION,
admits allegations 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of Plain-
tiff’s Complaint.
A4l
ANSWER OF TRUST NO. 4118 FILED IN THE
COURT OF COMMON PLEAS OF LUCAS
COUNTY, OHIO
~ Case No. 83-2699
IN THE COURT OF COMMON PLEAS
OF LUCAS COUNTY, OHIO
THE TOLEDO TRUST COMPANY, AS
TRUSTEE OF TRUST NO. 4117
Plaintiff
V.
SANTA BARBARA FOUNDATION, et al.
Defendants.
ANSWER OF THE TOLEDO TRUST COMPANY, AS
TRUSTEE OF TRUST NO. 4118 and OF DEFENDANT
NANCY S. JONES
and
COUNTERCLAIM and CROSS-CLAIM OF DEFENDANT
THE TOLEDO TRUST COMPANY, AS TRUSTEE
OF TRUST NO. 4118
James J. Robison (7434)
Robison, Curphey & O’Connell
425 L-O-F Building
Toledo, Ohio 43624
(419) 255-3100
Attorney for Defendants Nancy S.
Jones and The Toledo Trust Com-
pany, as Trustee of Trust No. 4118.
A42
Defendant The Toledo Trust Company, as Trustee of
Trust No. 4118 (‘Defendant Trustee”), and Defendant
Nancy S. Jones:
1. Admit the allegations of paragraphs 1 through 12
of the Complaint.
A43
STIPULATIONS AND ATTACHED EXHIBITS FILED
IN THE COURT OF COMMON PLEAS OF LUCAS
COUNTY, OHIO
(Dated April 24, 1985)
~ No. 83-2699
IN THE COURT OF COMMON PLEAS
OF LUCAS COUNTY, OHIO
THE TOLEDO TRUST COMPANY, AS TRUSTEE
OF TRUST NO. 411’,
Plaintiff,
V.
SANTA BARBARA FOUNDATION, et al.,
Defendants.
STIPULATIONS
Plaintiff The Toledo Trust Company as Trustee of
Trust No. 4117 and defendants Santa Barbara Foundation,
The Toledo Trust Company as Trustee of Trust No. 4118
and Nancy S. Jones, by and through counsel, do hereby
stipulate to the facts set forth below. Where the Defen-
dants could not agree on language to be included in the
Stipulations below, Defendant Santa Barbara Foundation’s
suggested phrasing is enclosed in parentheses ( ) and De-
fendants The Toledo Trust Company as Trustee of Trust
No. 4118 and Nancy Jones’ suggested phrasing is enclosed
in brackets [ ].
1. On January 28, 1960, Nancy S. Jones, as Donor,
entered into a written Trust Agreement with The Toledo
Trust Company, as Trustee, carried on its records as Trust
A44
No. 4117. The primary beneficiary of said Trust Agree-
ment is Donor’s daughter, Marcia McDonald Rivas, who
was granted a testamentary special power of appointment
over the corpus of the trust. A copy of the Trust Agree-
ment, attached hereto and identified as Exhibit A, is a
true, accurate and genuine copy of said Trust Agreement.
2. The said Trust Agreement was entered into in
Ohio, which is also the situs of the trust assets and ad-
ministration: of the trust.
3. Marcia McDonald Rivas died on November 10,
1982 a resident of Santa Barbara, California.
4. Marcia McDonald Rivas left a Last Will and Testa-
ment dated March 14, 1980 which Will was admitted to
probate in the Superior Court of the State of California,
County of Santa Barbara, on August 1, 1983. A copy of
the Last Will and Testament of Marcia McDonald Rivas,
attached hereto and identified as Exhibit B, is a true, ac-
curate and genuine copy of said Will.
5. Alcoholic Anonymous, 1216 State Street, Santa
Barbara, California, previously located at 1129 State Street,
Santa Barbara, California, has declined to accept (a be-
quest) [the appointment] of 10% of the trust corpus as
provided in the Last Will and Testament of Marcia Mc-
Donald Rivas in excess of the sum of $500.00. A copy of
Alcoholics Anonymous’ Declaration of Declination of Be-
quest and Appointive Assets, attached hereto and identified
as Exhibit C, is a true, accurate and genuine copy of said
Declination.
6. On September 16, 1983 Santa Barbara Foundation
of California filed a Petition for Determination of Entitle-
ment to Distribution of Estate in the Superior Court of
the State of California, County of Santa Barbara, Case
‘th hy Ala At A St lt tb
A45
No. SM38985. A copy of the Petition for Determination
of Entitlement to Distribution of Estate, attached hereto
and identified as Exhibit D, is a true, accurate and genuine
copy of said Petition.
7. Toledo Trust Company, attn: Gerald W. Miller
(was served with) [received] notice of the time and place
of hearing on the Petition for Determination of Entitle-
ment to Distribution of Estate. A copy of the Notice of
Hearing and Proof of Service by Mail, attached hereto
and collectively identified as Exhibit E, is a true, accurate
and genuine copy of said Notice of Hearing and Proof
of Service by Mail.
8. On October 13, 1983 the Superior Court of the
State of California, County of Santa Barbara, made and
Entered an Order Determining Entitlement to Distribu-
tion of Estate directing that 10% of the assets of the trust
over which Marcia McDonald Rivas had a testamentary
special power of appointment be distributed to Santa
Barbara Foundation to be held and administered as a
charitable trust. A copy of the Order determining En-
titlement to Distribution of Estate, attached hereto and
identified as Exhibit F, is a true, accurate and genuine copy
of said Order.
9. Santa Barbara Foundation is a non-profit corpo-
ration incorporated in the State of California on September
19, 1928, organized solely for general charitable and elee-
mosynary purposes. A copy of the Articles of Incorpora-
tion of Santa Barbara Foundation, together with an Amend-
ment thereto, attached hereto and collectively identified
as Exhibit G, is a true, accurate and genuine copy of said
Articles.
10. After obtaining the California Order, Santa Bar-
bara Foundation (applied to The Toledo Trust Company
A46
as Trustee of Trust No. 4117 for payment of the funds
allocable to Alcoholics Anonymous, pursuant to) [gave
notice to The Toledo Trust Company as Trustee of Trust
No. 4117 of the entry of] the Order Determining Entitle-
ment to Distribution of Estate.
11. The Toledo Trust Company as Trustee of Trust
No. 4117 has not paid to Santa Barbara Foundation the
funds allocable to Alcoholics Anonymous as directed by
the Order Determining Entitlement to Distribution of
Estate and continues to hold said funds pending receipt
of the advice and instruction of this Court.
/s/ DONALD F, MELHOrRN, JR.
An Attorney for Plaintiff The
Toledo Trust Company as Trustee
of Trust No. 4117
/s/ Joun M. Carey
An Attorney for Defendant Santa
Barbara Foundation
/s/ JAMES J. ROBISON
An Attorney for Defendants Nancy
S. Jones and The Toledo Trust
Company as Trustee of Trust
No. 4118
CERTIFICATE OF SERVICE
I hereby certify that a copy of these Stipulations
have been served upon Donald F. Melhorn, Jr., Esq., 4
SeaGate, 8th Floor, Toledo, Ohio 43604, Attorney for
Plaintiff The Toledo Trust Company as Trustee of Trust
No. 4117; Robert L. Bletcher, Esq., 8 East Figueroa Street,
Suite 210, Santa Barbara, California 93101, Attorney for
Defendant Santa Barbara Foundation; Defendant, Alco-
A47 ¢
holics Anonymous, Central Office, 1216 State Street, Santa
Barbara, California 93101; Janice M. Wood, Assistant At-
torney General, State of Ohio, 30 East Broad Street, Co-
lumbus, Ohio 43215; and James J. Robison, Esq., 4 SeaGate,
9th Floor, Toledo, Ohio 43604, Attorney for Defendants
Nancy S. Jones and The Toledo Trust Company as Trustee
of Trust No. 4118, by ordinary U. S. Mail this 24th day of
April, 1985.
Joun M. Carey
A48
Exhibit A
TRUST NO. 4117
TRUST AGREEMENT
AGREEMENT entered into on the 28th day of Jan-
uary, 1960 between NANCY S. JONES (hereinafter called
the “Donor’), and THE TOLEDO TRUST COMPANY
(hereinafter called the “Trustee’’).
The Donor has assigned, transferred, conveyed and
delivered and does hereby assign, transfer, convey and
deliver to the Trustee the property described in Schedule
“A” attached hereto and made a part hereof, which to-
gether with such other property as may hereafter be
added to the trusts hereunder as hereinafter provided in
Article I, shall be held by the Trustee in trust for the uses
and purposes herein set forth.
ARTICLE I
ADDITIONS TO THE TRUST
The Donor or any other person or persons (either be-
fore or after the death of the Donor) may at any time
and from time to time increase or add to the trust assets
by gifts, devises, bequests, conveyances, transfers, assign-
ments or deliveries of property, real or personal, to the
Trustee to be held in trust for the uses and purposes
herein set forth, aiid_the Trustee is authorized and em-
powered to accept and receive such property and to hold
the same in trust for the uses and purposes herein set
forth.
i aeeaeeeaereeneeeemniimil
A49
ARTICLE II
BENEFICIARIES
The primary beneficiary of this trust is the Donor’s
daughter, Marcia. Income and principal shall be distrib-
uted as follows:
(1) During the life of the Donor’s said daughter,
the Trustee may, from time to time, in its discretion, pay
to her or to any one or more among her issue such part
of the income and/or principal as it deems necessary, ad-
visable or expedient for the care, comfort, support, best
interest or general welfare of Donor’s daughter, or for the
care, comfort, support, education, best interest or general
welfare of any one or more of her issue. Such payments
may be made to or for the benefit of any one or more to
the exclusion of the other or others among said beneficiary,
and her issue, if any, and without obligation to make
equal payments to any of the others then or thereafter.
Income not so paid shall be accumulated and added to
principal. If at any time all of the then existing prin-
cipal is distributed by the Trustee, this trust shall termi-
nate.
(2) Upon the death of the Donor’s said daughter,
the then existing principal shall be distributed to such
one or more among her issue, spouses (including widows
and widowers) of such issue, sister, sister’s issue, and
any institutions or associations organized and operated
exclusively for religious, charitable, scientific, literary or
educational purposes, in such shares or proportions and
upon such terms, conditions and estates in trust or other-
wise, as the Donor’s said daughter may by her Last Will
and Testament appoint, provided that her said Will shall
expressly refer to her power of appointment hereunder,
| ieeeeeeneeneeeneneetamemeceenisammaell
A50
and provided further that such power of appointment
shall not be exercisable in favor of the Donor’s said daugh-
ter, her estate, her creditors or the creditors of her estate.
(3) To the extent the Donor’s daughter fails effec-
tively to exercise the power of appointment granted to
her in the preceding paragraph (2), at the time of her
death the then existing principal (including accumulated
income) shall be held or distributed as follows:
(a) If the Donor’s daughter leaves issue living
at the time of her death, such principal shall vest
per stirpes in and, subject to the provisions of para-
graph (4) hereof, be distributed to such of her issue
as are living at that time;
(b) If said daughter leaves no issue living at
the time of her death, then such principal shall be
distributed as follows:
(i) If the Donor’s daughter, Roberta, is
living at that time, it shall be added to and be-
come a part of the trust created simultaneously
herewith for the benefit of the Donor’s daughter,
Roberta, with the Toledo Trust Company as
Trustee and designated on the Trustee’s records
as Trust No. 4118 and shall be administered and
distributed in accordance with the provisions
thereof; or, if she has died prior thereto leaving
issue living at that time, then it shall vest per
stirpes in and, subject to the provisions of para-
graph (4) hereof, be distributed to such of her
issue as are living at that time;
(ii) If the Donor’s daughter, Roberta, has
died prior thereto leaving no issue living at that
A51
time, then subject to the provisions of paragraph
(4) hereof, it shall be distributed in equal shares
to such of the children of the Donor’s brothers
and sisters (including half-brothers and sisters
and step-brothers and sisters) as are living at
that time, except that if any such child has
died prior thereto leaving issue living at that
time, the share to which such deceased child
would have been entitled if living shall vest per
Stirpes in and be distributed to such of the de-
ceased child’s issue as are living at that time.
(4) If any share or part of principal becomes dis-
tributable to any beneficiary who has not attained the
age of twenty-one (21), the Trustee shall have full power
and authority, in its sole discretion, to retain such part
or share until such beneficiary shall attain said age. This
power of retention shall operate as a power only and
shall not operate to prevent the vesting of any interest
or to suspend the ownership thereof. With respect to
the administration of any such share or part during the
period of retention, the Trustee shall have full power
and authority to exercise all of the rights, powers and
discretions of management and administration of trust
assets herein conferred upon it and to pay to such ben-
eficiary or apply to his or her use such part of the income
and/or principal of his or her share or part as it may
deem necessary, advisable or expedient for the care, com-
fort, support and education of such beneficiary. Any
income not so paid or applied shall be accumulated and
added to the principal of the share or part from which
derived. If such beneficiary dies before attaining the
age of twenty-one (21), the share or part so retained
shall be delivered and paid over to the estate of such
beneficiary.
A52
(5) Whenever income and/or principal is to be dis-
tributed, paid to or applied to the use of any beneficiary
under the age of twenty-one (21), such payment or
distribution may be made for the benefit of such minor
to either or both of such minor’s parents or guardian
or to the person with whom such minor is living or may
be applied to the use of such minor by the Trustee by
expending it for his or her benefit.
(6) The terms “child,” “children,” “issue,” and any
similar term or terms as used herein, shall include any
adopted child or children and any such adopted child
or children and the issue thereof shall be entitled to share
hereunder in the same manner as if born in lawful wed-
lock to the adopting parent or parents.
ARTICLE III
PROHIBITION AGAINST ALIENATION
(1) No beneficiary shall have the right to transfer
all or part of his interest either in income or principal
unless the Trustee, in its discretion (which it shall not
be compelled to exercise), shall consent in writing there-
to; nor shall any person having a claim or demand of
any sort against a beneficiary have the right, while the
Trustee has possession of any trust property, to reach
the interest of any beneficiary therein by judicial pro-
cess.
(2) If any beneficiary, without first obtaining the
Trustee’s written consent (which the Trustee shall not
be compelled to give), shall attempt at any time or times
to transfer all or any part of his interest in the income
or principal, or, if any person having a claim or demand
A53
of any sort against any beneficiary attempts at any time
or times to reach the interest of such beneficiary by
judicial process for the purpose of having all or any part
of such interest applied or paid over, or impressed with
a charge or lien in complete or partial satisfaction of
such claim or demand, then in any such event, from that
time forward and until (as the case may be) the at-
tempted transfer is cancelled and revoked or the claim
or demand is finally settled and disposed of, the right
of the beneficiary to demand either income or principal,
or both, to which he would otherwise be entitled, shall
cease; and during such time, the income, or principal,
or both, to which the beneficiary would otherwise be
entitled, shall be held or distributed in any one or more
of the following ways:
(a) All or any part of such income may be
accumulated; or
(b) All or any part of such income, accumulated
income and principal may, from time to time, be
paid to or applied to the use of all or any one or
more exclusively of the other or others among such
beneficiary, such beneficiary’s spouse, if any, and
such beneficiary’s issue, if any; or, if there is no
such spouse or issue, then among such beneficiary
and the person who would, if such beneficiary were
actually dead, be entitled to such income, accumu-
lated income, or principal, as the case may be;
as the Trustee, in its absolute and uncontrolled discretion
(which it shall not be compelled to exercise and for
the exercise of which it shall not be liable to account)
thinks fit. If such beneficiary dies during the time when
the Trustee is holding in trust any property subject to
A54
the provisions of this paragraph, any accumulated or un-
distributed income shall thereupon be added to the prin-
cipal thereof, and such property shall thereafter be held and
distributed as hereinbefore provided; and if no provision
has been made for the disposition of such property after
such beneficiary shall have attained any specified age and
such beneficiary had in fact attained such age at the time
of death, the age of such beneficiary at the time of death
shall, for the purpose hereof, be deemed to be less than
the specified age. The foregoing provisions of this para-
graph shall in all events be subject to the limitation that,
if the Trustee is holding in trust any property subject
thereto on the day preceding the expiration of a period
of twenty-one (21) years after the death of the survivor
of all beneficiaries of any trust hereunder who are in
being at the time of the creation of the interests here-
under, then the trust shall terminate on said day, and
any then existing principal and undistributed income shall
vest in and be distributed to the beneficiary or benefi-
ciaries who, without regard to the provisions of this
paragraph, are entitled thereto upon termination.
(3) If any provision of this Article or the applica-
tion thereof to any person, interest or circumstance is
held invalid, the remainder of the Article and the appli-
cation of such provision to other persons, interests or
circumstances shall not be affected thereby.
ARTICLE IV
ADVISORY COMMITTEE
There is hereby established hereunder an Advisory
Committee which shall consist of R. A. Stranahan, Jr.,
W. A. Belt and S. J. Balog, and their successors, chosen
as herein provided, and which shall have the rights and
A55
powers herein set forth. Such rights and powers shall
be held by the Advisory Committee in a fiduciary capac-
ity and shall be exercised by them for the benefit of
the beneficiaries and others interested in the trust in
all respects as though the same were exercised by trustees
hereunder, and not for the benefit of any other person
or persons.
(1) The Trustee of each of the trusts created herein
shall exercise its powers of sale, investment, reinvest-
ment, borrowing and voting of shares or other securities
in accordance with the written directions of the Advisory
Committee. The Committee by unanimous consent of
its members shall have the right and power to remove
the Trustee of any trust and appoint a successor or
successors as hereinafter set forth. The written consent
or ratification of the Advisory Committee shall have the
same force and effect as a written direction. The Trustee
shall not be liable for nor charged with any act or thing
done or omitted to be done in good faith and upon the
direction or with the consent or ratification of the Ad-
visory Committee. If in any case of emergency it is either
impossible or impracticable or inexpedient to obtain the
direction of such Committee, then the Trustee may, until
the passing of such emergency, exercise said powers with-
out the direction, consent or ratification of said Committee.
(2) Except where unanimous consent is otherwise
expressly required herein, the Committee shall act by
consent of a majority of the members. If at any time
there is an equal division of opinion between the mem-
bers, the Trustee shall determine the matter in question.
Any one or more of the members may, from time to
time, but not permanently, delegate the rights and powers
conferred upon such member or members to any other
A56
person or persons. No member of the Advisory Com-
mittee shall be liable for any act or thing done or omit-
ted to be done in good faith nor for any error or mis-
take of judgment.
(3) Any member may resign by giving written no-
tice to the other members of the Committee, if any, and
to the Trustee. Upon the death, resignation, incapacity
or refusal to serve of any member, a successor may be
appointed by the remaining members of the Committee
to the end that there shall always be at least two and
not more than three members of the Committee. Any
successor member shall have the same rights and powers
as though originally designated herein.
(4) At any time the Advisory Committee may term-
inate its existence by unanimous consent of its members.
Upon such termination, all of the rights, powers and dis-
cretions of the Committee shall forthwith vest in and
thereafter be exercised by the Trustee as fully and ef-
fectually as if originally conferred upon the Trustee solely.
(5) The fiduciary powers herein conferred upon the
Advisory Committee shall be held to be naked powers
and shai! not vest any member or members thereof with
any right, title or interest in or to any of the trust assets,
and the Trustee shall have the sole power and authority
to execute, acknowledge and deliver all deeds, leases, con-
veyances, assignments, bills of sale, receipts, proxies, trans-
fers, agreements or other instruments affecting the trust
assets, including any court applications or accounts and
none of the members of said Committee shall be permitted
or required to join therein. No person, firm or corpora-
tion dealing with the Trustee shall be privileged or obli-
gated to inquire into the authority of the Trustee or of the
A57
said Committee, or into the fact whether any act or trans-
action shall have been directed, consented to or ratified by
such Committee. No bond or other security shall be re-
quired of any member of the Advisory Committee.
ARTICLE V
POWERS AND DUTIES OF THE TRUSTEE
Pursuant to the directions or with the consent of
the Advisory Committee as hereinbefore provided, the
Trustee shall have full power and authority, with respect
to each separate trust, to control and manage the trust
assets, to collect, recover and receive the rents, issues,
interest, income and proceeds therefrom and to do all acts
and things which it deems either necessary, advisable or
expedient to the same extent and with like effect as might
be done by an individual in absolute ownership and control
of said property, including (without prejudice to the gen-
erality of such powers) the following powers:
(a) The Trustee, without liability for deprecia-
tion or loss thereof, may hold and retain any real or
personal property in the same form of investment as
that in which it was received hereunder, although
such property may not be of the character of invest-
ment permitted by law to trustees, and regardless of
the fact that the holding or retention thereof may be
unwise, imprudent or hazardous or that such property
may be non-productive and regardless of the propor-
tion which any such property, or property of a similar
character, so held, may bear to the entire amount of
_the trust estate.
(b) The Trustee may sell, convey, exchange,
mortgage, pledge, option, lease for any term of years
A58
irrespective of the period of any trust hereunder and
with or without privilege or option to purchase (in-
cluding 99-year leases renewable forever), renew,
extend, continue or modify any such transaction or
otherwise deal in and dispose of all or any part of
the trust assets without order of court, at public or
private sale, for cash or on credit, for such considera-
tion, and on such terms and conditions as the Trustee,
in its discretion, may deem either necessary, advisable
or expedient. The Trustee shall have the right and
power, at any time and from time to time, to pur-
chase from, sell to, and otherwise deal with itself in
its capacity as fiduciary of any other trust in which
any member of the Donor’s family has a beneficial
interest, to the same extent as it is herein authorized
to purchase from, sell to and deal with third parties.
(c) The Trustee is authorized and empowered
to borrow money from itself or from any other person
or persons or to create, incur or assume debts or ob-
ligations for any purpose or purposes it may, in its
discretion, deem either necessary, advisable or ex-
pedient including, but not limited to, that of paying
or applying income and/or principal to any beneficiary
or beneficiaries when cash is not available or saving,
protecting, preserving, repairing or improving any
trust asset, paying debts, claims, obligations, taxes,
assessments or other governmental charges, or any
and all other costs, charges or expenses incurred in
the management and administration of the trusts or
acquiring or purchasing investments, and to secure
the payment therefor by mortgaging, pledging, hy-
pothecating or otherwise encumbering all or any part
of the income and/or principal then held or there-
A59
after acquired, executing negotiable or non-negotiable
notes, purchase-money mortgages, assuming debts or
obligations of others, or otherwise; the Trustee may
advance or loan money to any person or persons, or
deposit the same in any bank or trust company, for
any purpose and for any length of time it deems
either necessary, advisable or expedient with or with-
out security.
The Trustee may advance or loan money to any
trust and shall have a first and prior lien upon all
of the income and principal of such trust with the
right to fully repay and reimburse itself out of either
or both income and principal, and in addition thereto,
the Trustee shall be entitled to specific security by
way of a mortgage or pledge of particular parts of
the income and/or principal in such trust for all sums
so loaned or advanced. The Trustee shall be entitled
to receive a legal rate of interest on any money so
advanced or loaned.
(d) The Trustee shall have full power and au-
thority to execute, acknowledge and deliver all deeds,
conveyances, bills of sale, assignments, receipts,
powers of attorney, proxies, contracts, notes, mort-
gages, leases, options, transfers and other instruments
which it, in its discretion, deems either necessary,
advisable or expedient.
(e) The Trustee may change and alter invest-
ments and invest and reinvest the trust funds in such
real or personal property of any kind or description
as the Trustee may deem either necessary, advisable
or expedient. The Trustee shall not be restricted to
investments or reinvestments of the character per-
mitted for trustees’ investments by the rules or orders
A60
of court or the statutes of the State of Ohio or of any
other state, but shall be relieved from all restrictions
placed by law on investments which may be made by
trustees. The Trustee shall not be held to account
or liable for, nor charged with, any loss due to altera-
tions, changes, investments or reinvestments made
or omitted to be made pursuant to the directions of
the Advisory Committee, or, if acting in its sole dis-
cretion, made or omitted to be made in good faith and
with due care.
(f) With respect to any shares of stock or bonds
or other securities held by it, the Trustee is authorized
and empowered, in its discretion, to vote thereon in
person or by proxy (to whom discretion may be
granted); to consent in writing and join in any voting
trust, pooling or depository agreement with respect
thereto; to exercise any right of option, subscription,
conversion or otherwise attacking to or which may
be given to the holders thereof; to join in any plan
of lease, mortgage, consolidation, exchange, reorgani-
zation or foreclosure of any corporation issuing the
same and take and hold any security issued under any
such plan, pay assessments involved therein or invest
additional funds therein; and to exercise all other
rights in connection therewith as fully as if such
Trustee were the unqualified owner thereof.
(g) The Trustee shall not be required to register
or hold any real or personal property, including with-
out limiting the generality of the foregoing, stocks,
bonds or other securities or other investments or in-
struments appertaining thereto, in its name individ-
ually or as Trustee, but may register, hold or retain
such property and/or instuments in the name of an
A61
individual, partnership or corporation as its nominee
or may keep them unregistered any may retain them
or any part thereof in such condition that they may
pass by delivery.
(h) The Trustee may, in its discretion, allocate
all or any part of the receipts, actual or constructive,
including but not limited to rents, capital gain, in-
terest or dividends in cash, stock or property, to income
or to principal, or to both and may, in its discretion,
charge all or any part of the current or other expenses,
disbursements, losses, premiums and discounts, to in-
come or to principal or to both.
(i) The Trustee shall be under no obligation to
create a sinking fund or make any amortization
charge from income or otherwise to make good to
principal any loss on securities received at a valuation
above par, or purchased by it above par, when from
falling due of said securities or otherwise, the premium
is lost in whole or in part.
(j) Whenever it shal] become necessary to divide
any assets into parts or shares or to distribute the
same, the Trustee may, but shall not be required to,
reduce all or any part thereof to cash or other divisible
form, and may make such division or distrioution in
cash or in kind, or partly in cash or partly in kind
(as may be determined by the Trustee), and for the
purpose of each division or distribution, the judg-
ment of the Trustee concerning the property thereof,
and the relative value for the purpose of division or
distribution of the property and security so divided
or distributed shall be binding and conclusive on all
persons interested therein.
A62
(k) The Trustee shall have full power and au-
thority to sue for, settle, collect and compound, sell
or abandon claims or demands belonging to any of the
trusts, to accept any consideration, compensation or
security for any debts and to allow such time for pay-
ment (either with or without taking any security),
and to defend, settle, adjust, compromise, pay or dis-
charge any claim of whatever kind which may be
made against any of the trusts, upon such terms and
conditions and in such manner, as to the Trustee, in
its discretion, may seem either necessary, advisable
or expedient.
(1) The Trustee may, in its discretion, pay all
taxes, assessments or governmental charges of any
nature whatsoever, which shall become payable in
respect of all or any part of the income or principal
held in any of the trusts hereunder at any time and
from time to time, or which shall become payable
in respect to all or any part of the income and/or
principal of any of the trusts which is accumulated,
or paid to, or applied to the use of or distributed
to any beneficiary or beneficiaries.
The Trustee, in its discretion, may contest any
tax, assessment or governmental charge and may
pay the costs and expense of such contest including
interest and penalties if any are charged out of the
income and/or principal and without liability on its
part notwithstanding it may be held that the Trustee
contested any such tax, assessment or governmental
charge without reasonable cause. The Trustee shall
not be liable to any beneficiary for its failure or
omission to pay any taxes, assessments or govern-
mental charges of any nature.
A63
(m) The Trustee may in the discharge of its
duties employ and compensate counsel, agents or
other representatives. The Trustee shall not be an-
swerable for the default or misconduct of any coun-
sel, agent or other representative selected by it in
good faith.
(n) The Trustee shall keep adequate books of
account in which shall be entered a description of
all property from time to time constituting the trust
assets and an account of all receipts and disburse-
ments hereunder, which books of account shall at
all times be open to the inspection and examination
of the Advisory Committee, beneficiaries and guard-
ians of any minor beneficiaries, at least annually,
and as often as may reasonably be requested, during
the life of the trust hereby created, an accurate
statement showing the property constituting the trust
assets and the income thereof, and showing all re-
ceipts and disbursements.
The Trustee shall not be required to file any
account in or report to any court under or pursuant
to any statute now in force or hereafter enacted,
nor shall the Trustee be required to account or report
otherwise than as herein provided or as required by
the orders and decrees of a court of competent juris-
diction.
(o) No purchaser, mortgagee, pledgee or assignee
of any part or all of the trust assets, nor any person
borrowing from or lending to the Trustee, nor any
other person or persons whether or not they are deal-
ing with the Trustee, shall be required or permitted
to see to the application of any trust funds. or the
A64
performance of any duty, or be obligated or priv-
ileged to inquire into the power or authority of the
Trustee or into the necessity, advisability or expe-
diency of any act of the Trustee.
(p) The Trustee shall be entitled to reasonable
compensation for its services; and shall be entitled
to be indemnified or reimbursed out of principal
and/or income for all payments, outlays, costs,
charges and expenses, including attorney fees which
it incurs or pays or for which it may become per-
sonally liable or required to personally pay, because
of breach of contract, injury to person or property,
fines, penalties or assessments under any law or
otherwise, or any other act or thing done or omitted
to be done, in good faith.
ARTICLE VI
THE TRUSTEE
The Trustee and any successor may resign as Trustee
by giving thirty (30) days’ written notice to the Ad-
visory Committee or, if it is not in existence, to such
as are living among the Donor, and Donor’s children
who have attained the age of twenty-one (21).
The Trustee and any successor may be removed as
Trustee of any trust by thirty (30) days’ written notice
signed by the Advisory Committee.
In the event of the resignation or removal or the
refusal or incapacity of the Trustee or any successor
to serve as Trustee of any trust, a successor shall be ap-
pointed by an instrument in writing signed by the Ad-
visory Committee, or, if it is not in existence, by such
A65
as are living among the Donor, and Donor’s children
who have attained the age of twenty-one (21), or, if
they fail to agree, then by order of a court of competent
jurisdiction. Any successor shall be a reputable bank
or trust company authorized to conduct a trust business
under the laws of any state or of the United States. No
successor trustee shall be charged with or held respon-
sible for any act or thing done or omitted by any pred-
ecessor.
The powers of resignation, removal and appointment
granted herein shall be continuing powers and may be
exercised at any time and from time to time. Any suc-
cessor trustee shall be vested with the same and all the
rights, powers, discretions, trusts, duties and obligations
of its predecessor with like effect as though originally
designated herein.
ARTICLE VII
APPLICABLE LAW
This agreement and all of the trust assets held in trust
hereunder shall be subject to and held, administered and
distributed in accordance with the laws of the State of
‘Ohio
ARTICLE VIII
IRREVOCABILITY
The Donor relinquishes all right to alter, amend, re-
voke or terminate this agreement or any of the trusts
hereunder.
IN WITNESS WHEREOF, the said Nancy S. Jones
has signed this instrument and The Toledo Trust Company
A66
has caused this instrument to be executed by its officers
thereunto duly authorized, in duplicate, the day and year
first above mentioned.
/s/ Nancy S. JONES
Nancy S. Jones
THE TOLEDO TRUST COMPANY
By /s/ STEPHEN BALOG
Vice President and Trust Officer
Attest: /s/ Francis G. PLETZ
Assistant Secretary
Witnesses:
/s/ GEORGE F. MEDILL
/s/ [Illegible] S. CLaus
#4117
SCHEDULE “A”
10,000 shares Champion Spark Plug Company common
stock ie
Rec’d
/s/ F. G. Pletz
A67
Exhibit B
SM38985
FILED
SUPERIOR COURT
DEC 16 1982
Howard C. Menzel, County Clerk
By /s/ (Illegible)
Deputy Clerk
WILL OF
MARCIA MacDONALD RIVAS
I, MARCIA MacDONALD RIVAS, a resident of Santa
Barbara County, California, declare that this is my Will.
FIRST: I revoke all Wills and Codicils that I have
previously made.
SECOND: I declare that I am married to JUAN
RIVAS and all references in this Will to “my husband”
are to him. My husband and I are presently separated.
I declare that I have no children living or deceased.
THIRD: I declare that all property presently stand-
ing in my name and all property which shall stand in
my name at the time of my death is my separate prop-
erty. There exists no property which is the community
property of myself and my husband. It is my intention
by this Will to dispose of all property over which I have
the right of testamentary disposition, including any and
all property as to which I may have a testamentary power
of appointment.
/s/ M. M. D. R.
A68
FOURTH: It is common knowledge that my family
was made financially secure, initially, through the gener-
osity of my grandfather, ROBERT ALLEN STRANAHAN.
Most of the wealth which has passed to me and my fam-
ily has multiplied, leaving my mother, NANCY S. JONES,
my sister, ROBERTA PAWLAK, my niece, MARCIA
UNI, and my nephew, JAMIE PAWLAK, all quite fi-
nancially secure. Accordingly, except as otherwise spe-
cifically provided herein, I have intentionally failed to
make provision for them in this Will.
FIFTH: I make the following specific gifts of prop-
erty:
A. I give my Jaguar automobile to MARCI DE LA
TORRE.
B. I give my grandmother’s crystal and china to my
niece, MARCIA UNI.
C. I give all my animals, including, but not limited
to my horses, dogs, cats, and goats, to MARCI DE LA
TORRE. I direct that during the period of the administra-
tion of my estate, none of my animals shall be destroyed
without the approval of a licensed veterinarian. In the
event the destruction of any such animal shall be approved
by a veterinarian, following destruction the animal shall
not be rendered.
D. I give all my jewelry, clothing, household furni-
ture and furnishings, motor vehicles, and other tangible
articles of
/s/ M. M. D. R.
a personal nature, or my interest in any such property,
not otherwise specifically disposed of by this Will or in
any other manner, together with any insurance on the
A69
property, to MARCI DE LA TORRE, LISA DE LA TORRE,
and TRINIDAD DE LA TORRE, in equal shares as they
shall agree, or as my Executor shall in my Executor’s dis-
cretion determine if they shall not agree.
SIXTH: Under that certain Trust Agreement entered
into January 25, 1960 between my mother, NANCY S.
JONES and TOLEDO TRUST COMPANY, I have a special
power of appointment. The permissible appointees under
this power of appointment are limited to my issue, spouses
(including widows and widowers) of such issue, my sister,
my sister’s issue, and any institutions or associations or-
ganized and operated exclusively for religious, charitable,
scientific, literary or educational purposes. I exercise
this power of appointment by appointing all property
subject to this power as follows:
(A) Ten percent (10%) thereof shall be distributed
in memory of Dr. Cameron Hall to SAINT JOHN’S HOS-
PITAL AND HEALTH CENTER, 1328 22nd, Santa Monica,
California 90404.
(B) Ten percent (10%) thereof shall be distributed
to the MEMORIAL REHABILITATION FOUNDATION,
300 North San Antonio Road, Santa Barbara, California
93110.
/s/ M. M. D. R.
(C) Ten percent (10%) thereof shall be distributed
to the CITY OF HOPE, 208 West 8th Street, Los Angeles,
California 90014.
(D) Ten percent (10%) thereof shall be distributed
to the ARTHRITIS FOUNDATION, 2944 De La Vina
Street, Santa Barbara, California 93105.
A70
(E) Ten percent (10%) thereof shall be distributed
to LOYOLA MARYMOUNT UNIVERSITY, Loyola Boule-
vard and West 80th, Los Angeles, California 90045.
(F) Ten percent (10%) thereof shall be distributed
to the HEART ASSOCIATION OF SANTA BARBARA
COUNTY, 146 East Carrillo Street, Santa Barbara, Cali-
fornia 93101.
(G) Ten percent (10%) thereof shall be distributed
to the CHILD ABUSE LISTENING MEDIATION, INC.
(CALM), P. O. Box 718, Santa Barbara, California 93102.
(H) Ten percent (10%) thereof shall be distributed
to the Large Animal Division of the SCHOOL OF VET-
ERINARY MEDICINE, University of California at Davis,
California, in memory of Dr. Wheat, who performed ad-
—mirably every time I called upon him.
(I) Ten percent (10%) thereof shall be distributed
to ALCOHOLICS ANONYMOUS, Central Office, 1129
State Street, Santa Barbara, California 93101.
/s/ M. M. D. R.
(J) Five percent (5%) thereof shall be distributed
to the MULTIPLE SCLEROSIS SOCIETY, Channel Is-
lands Chapter, 1727 State Street, Santa Barbara, California
93101.
(K) Five percent (5%) thereof shall be distributed
to the CRIPPLED CHILDREN AND ADULTS EASTER
SEAL SOCIETY OF SANTA BARBARA COUNTY, 31
East Canon Perdido, Santa Barbara, California 93101.
SEVENTH: During the period of the administration
of my estate, I direct my executor to pay to MARCI DE
LA TORRE the monthly sum ‘of $2,500.00 to provide for
A7l
the care and feeding of my animals. MARCI DE LA
TORRE shall render itemized monthly accounts with re-
spect to such expenditures made by her from such funds
for such purposes and any excess not expended for the
care and feeding of such animals shall be returned to my
estate.
EIGHTH: I give the resident of my estate to my
husband JUAN RIVAS if he survives me and if he does
not, to MARCI DE LA TORRE.
NINTH: Except as otherwise provided in this Will,
I have intentionally and with full knowledge omitted
to provide for my heirs who may be living at the time
of my death.
Y /s/ M. M. D. R.
TENTH: If any devisee, legatee or legal heir of mine,
or person claiming through any of them, shall contest this
Will or attack or seek to impair or invalidate any of its
provisions, or any provisions in any codicil thereto, I spe-
cifically disinherit each such person and all legacies, be-
quests, devisees, and interests given under this Will or
in any other manner to such person shall be forfeited and
shall augment proportionately the shares of my estate
going to such of my devisees and legatees as shall not
have participated in such acts.
ELEVENTH: I direct that all estate and inheritance
taxes payable as a result of my death, not limited to taxes
assessed on property passing under this Will, shall be paid
out of the residue of my estate, and shall not be deducted
or collected from any legatee, devisee, or beneficiary here-
under.
A72
TWELFTH: I nominate MARCI DE LA TORRE as
Executor of this Will. The term “my Executor” as used
in this Will shall include any personal representative of
my estate.
I further authorize my Executor to sell, with or with-
out notice, at either public or private sale, and to lease any
property belonging to my estate, subject only to such
confirmation of court as may be required by law.
/s/ M. M. D. R.
I authorize my Executor to invest and reinvest any
surplus moneys in my Executor’s hands in any kind of
property, real, personal, or mixed, and every kind of in-
vestment, specifically including, but not limited to, in-
terest-bearing accounts, corporate obligations of every kind,
preferred or common stocks, shares of investment trusts,
investment companies, mutual funds, or common trust
funds, including funds administered by my Executor and
mortgage participations, that persons of prudence, discre-
tion, and intelligence acquire for their own account.
I further authorize my Executor either to continue
the operation of any business belonging to my estate for
such time and in such manner as my Executor may deem
advisable and for the best interests of my estate, or to
sell or liquidate the business at such time and on such
terms as my Executor may deem advisable and for the
best interests of my estate. Any such operation, sale, or
liquidation by my Executor, in good faith, shall be at the
risk of my estate and without liability on the part of my
Executor for any resulting losses.
THIRTEENTH: If any part of this Will is held to
be void, invalid, or inoperative, I direct that such voidness,
A73
invalidity, or inoperativeness shall not affect any other
part of this Will, and that the remainder of this Will shall
be carried into effect
/s/ M. M. D. R.
as though such part had not been contained herein.
FOURTEENTH: As used in this Will, the masculine,
feminine, or neuter gender, and the singular or plural
number shall each be deemed to include the others when-
ever the context so indicates.
I subscribe my name to this Will this 14 day of
March, 1980, at Santa Barbara, California.
/s/ Marcia MacDonatp Rivas
Marcia MacDonald Rivas
On the date written below, MARCIA MacDONALD
RIVAS declared to us, the undersigned, that this instru-
ment, consisting of nine (9) pages including the page
signed by us as witnesses, was her Will and requested
us to act as witnesses to it. She thereupon signed this
Will in our presence, all of us being present at the same
time. We now, at her request, in her presence and in
the presence of each other, subscribe our names as wit-
nesses.
Executed on February , 1980, at Santa Barbara,
California.
We declare under penalty of perjury that the fore-
going is true and correct.
/s/ S. J. Brynah, Jr. residing at 3536 Las Pinas Dr.
Santa Barbara, Ca 93105
/s/ Patricia Wilson residing at 859 N. Patterson
Santa Barbara, CA 93104
_A74
Exhibit C
ROBERT L. BLETCHER
Attorney at Law
Eight East Figueroa Street
Suite 210
Santa Barbara, California 93101
Telephone: (805) 965-1016
Attorney for Claimant
SUPERIOR COURT OF THE STATE
OF CALIFORNIA
COUNTY OF SANTA BARBARA
In the Matter of the Estate of )
MARCIA MacDONALD RIVAS, aka ) No. SM38985
MARCIA MacDONALD, )
Deceased. )
DECLARATION OF DECLINATION OF BEQUEST
AND APPOINTIVE ASSETS
I, ROBERT E. TABER, on behalf of ALCOHOLICS
A'NNONYMOUS, Twenty Third District Central Steering
Committee, 1216 State Street, Santa Barbara, California,
previously located at 1129 State Street, Santa Barbara,
California, do hereby decline to accept the bequest and
appointment of 10% of the assets of that certain trust
under Trust Agreement dated January 28, 1960, between
NANCY S. JONES, Donor, and the TOLEDO TRUST
COMPANY, Trustee, over which MARCIA MacDONALD
RIVAS had power of appointment, except the sum of
$500.00.
ALCOHOLICS ANONYMOUS, Santa Barbara, Cali-
fornia, has no objection to, nor, in accordance with an
ALCOHOLICS ANONYMOUS tradition, can it endorse
— —s
AT75
the request of SANTA BARBARA FOUNDATION for the
distribution of the balance of said assets under said be-
quest and power of appointment of MARCIA MacDONALD
RIVAS for the purposes set forth in its Statement of In-
terest, and request the Court approve and order the same.
Dated: September 27, 1983.
ALCOHOLICS ANONYMOUS
Twenty-Third District
Central Steering Committee
By: /s/ Rosert E, TABER
Robert E. Taber
Chairman
A76
Exhibit D
FILED
SUPERIOR COURT
SEP 16 1983
Howard C. Menzel, County Clerk-Recorder
By /s/ (Illegible)
Deputy Clerk
ROBERT L. BLETCHER
Attorney at Law
Eight East Fiqueroa Street
Suite 210
Santa Barbara, California 93101
Telephone: (805) 965-1016
Attorney for Petitioner
SUPERIOR COURT OF THE STATE
OF CALIFORNIA
COUNTY OF SANTA BARBARA
In the Matter of the Estate of )
MARCIA MacDONALD RIVAS, aka - ) No. SM 38985
MARCIA MacDONALD, )
Deceased. )
PETITION FOR DETERMINATION OF ENTITLEMENT
TO DISTRIBUTION OF ESTATE
Petitioner, SANTA BARBARA FOUNDATION, re-
spectfully represents:
1. At all times mentioned herein, Petitioner, SANTA
BARBARA FOUNDATION, was, and now is, a corpora-
tion duly organized and existing under and by virtue of
the non-profit laws of the State of California, having its
principal place of business in the County of Santa Barbara,
State of California.
AT77
2. As more particularly appears from the Articles of
Incorporation, Petitioner is incorporated solely for gen-
eral, charitable eleemosynary purposes. A copy of the
Articles of Incorporation of Petitioner is attached hereto,
marked Exhibit “A” and made a part hereof.
3. Notice of Death in this matter has been duly
published as provided by Law and Letters of Special Ad-
ministration of the Estate of MARCIA MacDONALD
RIVAS, deceased, have been issued to ROBERTA PAW-
LAK, who at all times herein has been appointed, quali-
fied and acting in such capacity. A Petition for Final
Distribution has not been filed herein.
4. The Decedent, MARCIA MacDONALD RIVAS,
left estate consisting of real and personal property situated
in Santa Barbara County, California.
5. Decedent was the donee of a power of appoint-
ment under Trust Agreement dated January 28, 1980,
between NANCY S. JONES as Donor and THE TOLEDO
TRUST COMPANY as Trustee. Said power of appoint-
ment was to be exercised upon the death of said MARCIA
MacDONALD RIVAS by her Last Will and Testament,
expressly referring to said power of appointment. A copy
of said Trust is attached hereto marked Exhibit “B” and
made a part hereof.
6. By the terms of the Will of MARCIA MacDONALD
RIVAS, dated March 14, 1980, and admitted to probate
herein on August 1, 1983, decedent duly exercised said
power of appointment by, in part, giving ten percent
(10%) of the corpus of the Trust over which she had
power of appointment to ALCOHOLICS ANONYMOUS,
Central Office, 1129 State Street, Santa Barbara, Cali-
fornia 93101.
A78
7. Petitioner is informed and believes and on such
information and belief alleges that ALCOHOLICS
ANONYMOUS is an association of individuals who, as a
unit, have the exclusive charitable and educational pur-
pose of detering the excessive use of alcohol and aiding,
assisting, and benefiting persons suffering from alcoholism
and the effects of alcohol abuse.
8. Petitioner is informed and believes and on such
information and belief alleges that ALCOHOLICS ANON-
YMOUS is not a duly constituted organization under the
laws of the State of California, and does not qualify under
Probate Code §27 as a person or organization capable of
taking a testamentary disposition by Will.
9. Petitioner is further informed and believes and on
such information and belief alleges that ALCOHOLICS
ANONYMOUS is unable to accept the assets appointed
to it under the Will of Decedent.
10. Petitioner is informed and believes and on such
information and belief alleges that in order to carry out
the intent of MARCIA MacDONALD RIVAS, deceased,
and fulfill the purpose of the bequest and power of ap-
pointment exercised under her Will to ALCOHOLICS
ANONYMOUS, said gift should be made payable to Pe-
titioner for the use and benefit of persons suffering from
alcoholism or the effects of alcohol abuse for Petitioner
to hold said gift in charitable trust for the use and benefit
of organizations whose primary purpose is to aid, assist,
educate, and otherwise benefit persons suffering from
alcoholism or the effects of alcohol abuse.
11. Petitioner is informed and believes and on such
information and belief alleges that various persons and
organizations claim an interest in the Estate of Decedent
A79
and the property in trust subject to Decedent’s power of
appointment; the rights of persons so claiming have not
been determined by any judgment, order, or decree of
any court of competent jurisdiction.
12. The names, relationships and addresses of the
heirs of the Decedent and of all persons entitled to notice
of the time and place of hearing of this Petition, so far as
known to Petitioner are as follows:
Name & Relationship
NANCY G. JONES, mother
Age
adult
Residence/mailing address
1565 Meadow View Lane
Reno, NV 89509
46615 Eldorado Drive
Indial Wells, CA 91260
Name & Relationship
ROBERTA PAWLAK, sister
Age
adult
Residence/mailing address
24650 Park Miramar
Calabasas Park, CA 91302
c/o Arthur Weiss, Esq.
7051 Santa Monica Blvd.
Los Angeles, CA 90038
Name & Relationship
MARCIA UNI, niece
A80
Age
adult
Residence/mailing address
2355 Plum Street
San Diego, CA 92106
Name & Relationship
JAMIE PAWLAK, nephew
Age
adult
Residence/mailing address
24650 Park Miramar
Calabasas Park, CA 91302
Name & Relationship
MARCI DE LA TORRE, stranger
Age
adult
Residence/mailing address
c/o MacDonald Thoroughbred Farm
Figueroa Mountain Road
Los Olivos, CA 93441
Name & Relationship
LISA DE LA TORRE, stranger
Age
16
Residence/mailing address
c/o MacDonald Thoroughbred Farm
Figueroa Mountain Road
Los Olivos,CA 93441
A81
Name & Relationship
TRINIDAD DE LA TORRE, stranger
Age
13
Residence/mailing address
c/o MacDonald Thoroughbred Farm
Figueroa Mountain Road
Los Olivos,CA 93441
Name & Relationship
JUAN RIVAS, stranger
Age
adult
Residence/mailing address
unknown
Name & Relationship
TOLEDO TRUST COMPANY
Attn: GERALD W. MILLER
Age
adult
Residence/mailing address
3 Seagate
Toledo,OH 43603
Name & Relationship
SAINT JOHN’S HOSPITAL and HEALTH CENTER
Age
Residence/mailing address
1328 22nd
Santa Monica,CA 90404
Peg) ee
A82
Name & Relationship
MEMORIAL REHABILITATION FOUNDATION
Age
Residence/mailing address
300 North San Antonio Road
Santa Barbara, CA 93110
c/o Earl W. Favor, Esq.
205 E. Carrillo Street
Santa Barbara, CA 93101
Name & Relationship
CITY OF HOPE
Age
Residence/mailing address
208 West 8th Street
Los Angeles, CA 90014
Name & Relationship
ARTHRITIS FOUNDATION
Age
Residence/mailing address
2944 De La Vina Street
Santa Barbara, CA 93105
c/o Archbald & Spray
Attorneys at Law
3944 State Street
Santa Barbara, CA 93105
Attn: W. Joe Bush, Esq.
A83
Name & Relationship
LOYOLA MARY MOUNT UNIVERSITY
Age
Residence/mailing address
Loyola Blvd. and West 80th
Los Angeles, CA 90045
Name & Relationship
HEART ASSOCIATION OF SANTA BARBARA
COUNTY
Age
Residence/mailing address
146 East Carrillo Street
Santa Barbara,CA 93101
Name & Relationship
CHILD ABUSE LISTENING MEDIATION, INC.
(CALM)
Age
Residence/mailing address
P.O. Box 718
Santa Barbara,CA 93102
c/o L. Donald Boden, Esq.
GRIFFITH & THORNBURGH
P. O. Drawer A
Santa Barbara,CA 93102
A84
Name & Relationship
Large Animal Division of the SCHOOL OF VETER-
INARY MEDICINE, University of California
Age
Residence/mailing address
Davis, California
Name & Relationship
ALCOHOLICS ANONYMOUS, Central Office
Age
Residence/mailing address
1129 State Street
Santa Barbara, CA 93101
Name & Relationship
MULTIPLE SCLEROSIS SOCIETY, Channel Islands
Chapter
Age
Residence/mailing address
1727 State Street
Santa Barbara, CA 93101
c/o Howard M. Simon, Esq.
SCHRAMM & RADDUE
P.O. Box 1260
Santa Barbara, CA 93102
Requests for Special Notice have been filed herein
by several of the persons and organizations above listed
A85
and notice of the time and place of hearing of this Peti-
tion will be given as required by law.
WHEREFORE, Petitioner prays that the Court de-
termine who is entitled to the ten percent (10%) of the
Trust Estate subject to Decedent’s power of appointment
as set forth in Article Sixth, Paragraph (I) of Decedent’s
Will dated March 14, 1980, and for other proper orders.
Dated: Sept. 12, 1983.
SANTA BARBARA FOUNDATION
By: /s/ L. L. WATHEY
L. L. Wathey
Treasurer
/s/ RosBert L. BLETCHER
Robert L. Bletcher
Attorney for Petitioner
A86
Exhibit E
FILED
SUPERIOR COURT
SEP 21 1983
HOWARD C. MENZEL, County Clerk-Recorder
By C. TORRES
Deputy Clerk-Recorder
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name
and Address)
Robert L. Bletcher, Esq.
8 E. Figueroa St., Suite 210
Santa Barbara, CA 93101
TELEPHONE NO.
(805) 965-1016
ATTORNEY FOR (Name) Petitioner
SUPERIOR COURT OF CALIFORNIA, COUNTY OF
SANTA BARBARA
Street Address: 312 Cook Street
Mailing Address: same
City and ZIP Code: Santa Maria, CA 93454
Branch Name: Santa Barbara Superior Court
ESTATE OF
MARCIA MacDONALD RIVAS aka
MARCIA MacDONALD
Decedent
CASE NUMBER
SM 38985
NOTICE OF HEARING (PROBATE)
This notice is required by law. This notice does not re-
quire you to appear in court, but you may attend the hear-
A87
ing if your wish. If you are a person interested in the
estate, you may serve upon the executor or administrator,
or upon the attorney for the executor or administrator,
and file with the court with proof of service, a written
request stating that you desire special notice of the filing
of an inventory and appraisement of estate assets or of
the petitions or accounts mentioned in sections 1200 and
1200.5 of the California Probate Code.
1. NOTICE is given that (name): SANTA BARBARA
FOUNDATION
(representative capacity, ifany): Petitioner
has filed (specify): PETITION FOR DETERMINA-
TION OF ENTITLEMENT TO
DISTRIBUTION OF ESTATE
reference to which is made for further particulars.
2. A hearing on the matter will be held
on (date): 10-6-83 at (time): 8:30 am in [X] Dept.:
1 [ ] Div.: [] Room:
located at (address of court): 312 East Cook Street
Santa Maria, CA 93454
Howarp C. MENZEL,
Clerk
by /s/ (Illegible),
Deputy
Dated: SEP 16 1983
This notice was mailed on (date): at (place): Santa
Barbara, California.
A88
CERTIFICATE OF [ ] POSTING [X] MAILING
I certify that I am nota party to this cause and that a true
copy of the foregoing Notice of Hearing (Probate)
1. [ ] was posted at (address):
on (date):
2. [ ] was mailed, first class, postage fully prepaid, in a
sealed envelope addressed to each person whose
name and address is given below and that the
notice was mailed and this certificate was executed
on (date): at (place): , California.
Clerk,
PROOF OF SERVICE BY MAIL
I am over the age of 18 and not a party to this cause. I am
a resident of or employed in the county where the mailing
occurred. My residence or business address is: 8 E.
Figueroa Street, Suite 210, Santa Barbara, CA 93101
I served the foregoing Notice of Hearing (Probate) by
enclosing a true copy in a sealed envelope addressed to
each person whose name and address is given below and
depositing the envelope in the United States mail with the
postage fully prepaid.
(1) Date of deposit: 9-20-83 (2) Place of deposit (city
and state): Santa Barbara, CA
I declare under penalty of perjury under the laws
of the State of California that the foregoing is true and
correct and that this declaration is executed on (date):
9-20-83
/s/ KAREN KIRKMAN /s/ Karen KIRKMAN
(Type or Print Name) (Signature of Declarant)
A89
NAME AND ADDRESS OF EACH PERSON TO WHOM
NOTICE WAS MAILED
See attached 3 page list.
Name & Relationship
NANCY G. JONES, mother
Age
adult
Residence/mailing address
1565 Meadow View Lane
Reno, NV 89509
46615 Eldorado Drive
Indial Wells, CA 91260
Name & Relationship
ROBERTA PAWLAK, sister
Age
adult
Residence/mailing address
24650 Park Miramar
Calabasas Park, CA 91302
c/o Arthur Weiss, Esq.
7051 Santa Monica Blvd.
Los Angeles, CA 90038
Name & Relationship
MARCIA UNI, niece
Age
adult
Residence/mailing address
2355 Plum Street
San Diego, CA 92106
A90
Name & Relationship
JAMIE PAWLAK, nephew
Age
adult
Residence/mailing address
24650 Park Miramar
Calabasas Park, CA 91302
Name & Relationship
MARCI DE LA TORRE, stranger
Age
adult
Residence/mailing address
c/o MacDonald Thoroughbred Farm
Figueroa Mountain Road
Los Olivos,CA 93441
Name & Relationship
LISA DE LA TORRE, stranger
Age
16
Residence/mailing address
c/o MacDonald Thoroughbred Farm
Figueroa Mountain Road
Los Olivos,CA 93441
Name & Relationship
TRINIDAD DE LA TORRE, stranger
Age
13
A91
Residence/mailing address
c/o MacDonald Thoroughbred Farm
Figueroa Mountain Road
Los Olivos, CA . 93441
Name & Relationship
JUAN RIVAS, stranger
Age
adult
Residence/mailing address
unknown
Name & Relationship
TOLEDO TRUST COMPANY
Attn: GERALD W. MILLER
Age
adult
Residence/mailing address
3 Seagate
Toledo,OH 43603
Name & Relationship
SAINT JOHN’S HOSPITAL and HEALTH CENTER
Age
Residence/mailing address
1328 22nd
Santa Monica,CA 90404
Name & Relationship
MEMORIAL REHABILITATION FOUNDATION
Age
A92
Residence/mailing address
300 North San Antonio Road
Santa Barbara, CA 93110
c/o Earl W. Favor, Esq.
205 E. Carrillo Street
Santa Barbara, CA 93101
Name & Relationship
CITY OF HOPE
Age
Residence/mailing address
208 West 8th Street
Los Angeles, CA 90014
_ Name & Relationship
ARTHRITIS FOUNDATION
Age
Residence/mailing address
2944 De La Vina Street
Santa Barbara, CA 93105
c/o Archbald & Spray
Attorneys at Law
3944 State Street
Santa Barbara, CA 93105
Attn: W. Joe Bush, Esq.
Name & Relationship
LOYOLA MARYMOUNT UNIVERSITY
Age
A93
Residence/mailing address
Loyola Blvd. and West 80th
Los Angeles, CA 90045
Name & Relationship
HEART ASSOCIATION OF SANTA BARBARA
COUNTY
Age
Residence/mailing address
146 East Carrillo Street
Santa Barbara,CA 93101
Name & Relationship
CHILD ABUSE LISTENING MEDIATION, INC.
(CALM)
Age
Residence/mailing address
P.O. Box 718
Santa Barbara,CA 93102
c/o L. Donald Boden, Esq.
GRIFFITH & THORNBURGH
P. O. Drawer A
Santa Barbara,CA 93102
Name & Relationship
Large Animal Division of the SCHOOL OF VETER-
INARY MEDICINE, University of California
Age
A94
Residence/mailing address
Davis, California
Name & Relationship
ALCOHOLICS ANONYMOUS Central Office
Age
—
Residence/mailing address
1129 State Street
Santa Barbara, CA 93101
Name & Relationship
MULTIPLE SCLEROSIS SOCIETY, Channel Islands
Chapter
Age
Residence/mailing address
1727 State Street
Santa Barbara,CA 93101
c/o Howard M. Simon, Esq.
SCHRAMM & RADDUE
P.O. Box 1260
Santa Barbara,CA 93102
Name & Relationship
CRIPPLED CHILDREN AND ADULTS EASTER
SEAL SOCIETY OF SANTA BARBARA COUNTY
Age
Residence/mailing address
31 East Canon Perdido
Santa Barbara,CA 93101
A95
Name & Relationship
HATCH & PARENT, Attorneys at Law, creditors
Age
Residence/mailing address
21 East Carrillo St.
Santa Barbara,CA 93101
Attn: S. Timothy Buynak, Jr.
Name & Relationship
Attorney General of the State of California
Age
Residence/mailing address
555 Capitol Mall, Suite 350
Sacramento, CA 95814
Name & Relationship
Marci De La Torre
Age
Residence/mailing address
c/o S. David Schwartz
Attorney at Law
3704 State Street, #205
Santa Barbara, CA 93105
A96
Exhibit F
ROBERT L. BLETCHER
Attorney at Law
Eight East Figueroa Street
Suite 210
Santa Barbara, California 93101
Telephone: (805) 965-1016
Attorney for Claimant
FILED
SUPERIOR COURT
OCT 13, 1983
Howard C. Menzel, County Clerk-Recorder
By C. Torres
Deputy Clerk-Recorder
SUPERIOR COURT OF THE STATE
OF CALIFORNIA
COUNTY OF SANTA BARBARA
In the Matter of the Estate of )
MARCIA MacDONALD RIVAS, aka ) No. SM38985
MARCIA MacDONALD, )
Deceased. )
ORDER DETERMINING ENTITLEMENT TO
DISTRIBUTION OF ESTATE
The Petition for Determination of Entitlement to
Distribution of Estate, filed herein by Santa Barbara
Foundation, came on regularly for hearing on October 6,
1983. Petitioner appeared by its counsel, Robert L. Blet-
cher.
The Court finds as follows:
1. All notices of the hearing have been given as
required law.
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2. Pursuant to the terms of the Will of Marcia
MacDonald Rivas, decedent, dated March 14, 1980, ad-
mitted to probate here on August 1, 1983, specifically
pursuant to the provisions of Paragraph (I), Article Third
thereof decedent duly exercised the power of appoint-
ment, in part, by giving 10% of the corpus of the Trust
over which she had power of appointment to Alcoholics
Anonymous, Central Office, 1129 State Street, Santa
Barbara, California.
3. Alcoholics Anonymous, Central Office, 1129 State
Street, Santa Barbara, California, an association organized
and operated exclusively for charitable purposes, has de-
clined to accept said gift and appointment, except for
the sum of $500.00.
4. Although Alcoholics Anonymous, the beneficiary
of said power of appointment, has declined to accept said
gift, except for the sum of $500.00, decedent’s intent
should be carried into effect by appointing an organiza-
tion to receive said funds and hold, administer, and
distribute those assets for purposes similar to those of
the designated donee.
5. Santa Barbara Foundation, is a California non-
profit corporation, organized and operated solely for gen-
eral, charitable, and eleemosynary purposes and is ex-
isting under the non-profit corporation laws of the State
of California and is ready, able, and willing to accept
the assets subject to said power of appointment and
carry out the intent of decedent.
NOW THEREFORE, IT IS ORDERED:
1. 10% of the assets of that certain Trust entered
into on or about January 25, 1960, between Nancy S.
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Jones, as Donor, and The Toledo Trust Company, as
Trustee, over which Marcia MacDonald Rivas had a tes-
tamentary special power of appointment, is hereby ordered
distributed to Santa Barbara Foundation, to be held and
administered as a charitable Trust as follows:
a. Purpose. The exclusive purpose for which
these funds, and the income therefrom, shall be used
is to support those charitable institutions, organiza-
tions and associations located in the County of Santa
Barbara, State of California, to be selected from time
to time in the discretion of the Trustee, which are
exclusively dedicated to-rehabilitating, aiding, assist-
ing, educating and otherwise benefiting persons suf-
fering from the effects of alcoholism and alcohol
abuse.
b. Investment and Application of Trust Fund
Income. The Trustee shall hold the trust funds and,
in its discretion, invest it or parts of it in securities,
mutual funds and accounts in financial institutions
in which charitable Trustees are permitted to invest
under the laws of the State of California, or retain
the funds in cash, and collect the income.
c. Distribution of Income and Principal. The
Trustee shall from time to time, but not less frequently
than annually, pay to such charitable organizations, in-
stitutions and associations located in Santa Barbara
County, California, which are specifically organized
and dedicated to the purposes of this Trust, to be
selected from time to time by the Trustees, all of
the net income of said Trust. In addition thereto,
the Trustee may, from time to time, pay to said
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organizations, institutions, and associations, dedicated
to the charitable uses and purposes of this Trust, those
sums from principal as the Trustee, in the Trustee’s
discretion, considers necessary for the support of any
such organizations, institutions, and associations.
Each of said organizations, institutions and associa-
tions which receive trust funds must, at the time of
receipt of the contribution by the Trustee, be one
of those organizations defined in the Internal Rev-
enue Code of the United States, contributions to
which are deductible for income tax purposes. All
payments of income and principal shall be made only
to such qualified institutions, organizations, and asso-
ciations as the Trustee in the Trustee’s sole discre-
tion, may from time to time determine as shall best
fulfill the purposes of this Trust.
d. Restrictions on Use of Trust Fund. The trust
fund and the income thereof shall be devoted exclu-
sively to the purposes described above and shall
in no part or in no event be given or contributed
to or inure to the benefit of any private person, or
corporation, except to the extent of the compensa-
tion of the Trustee.
e. Reimbursement and Compensation of Trustee.
The Trustee shall be reimbursed from the Trust
Estate for all expenses reasonably incurred by it in
the administration of the trust fund. The Trustee
shall be entitled to such compensation for its ser-
vices as the Trustee may from time to time deter-
mine as reasonable and such compensation shall
be paid out of and charged to the trust fund.
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f. Trustee Controls Funds. The Trustee shall
have exclusive custody of the securities, cash, and
other property of the trust fund and shall have
the right to registered securities or other property
held hereunder in the name of its nominee.
g. Appointment of Successor Trustee. In the
case of resignation of the Trustee it shall apply to
the Court for appointment of a successor Trustee,
who shall thereafter have full power to act here-
under.
h. Irrevocable Trust. This Trust shall be irrev-
ocable and may not be amended or modified, except
by Court order first obtained.
i. Powers. The Trustee shall have all powers
of a Trustee of a charitable trust as now or here-
after provided by law.
j. No Physical Division. The Trustee shall not
be required to physically segregate the funds of this
Trust but may co-mingle the assets with other char-
itable funds held or invested by Trustee. However,
the Trustee shall keep separate accounts for this
Trust.
Dated: October 13, 1983.
/s/ R. LEWELLEN
Judge of the Superior Court
A101
Exhibit G
ARTICLES OF INCORPORATION
of
SANTA BARBARA FOUNDATION
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned: EDWARD W. ALEX-
ANDER, ELMER J. BISSELL, REXWALD BROWN,
HAROLD S. CHASE, GEORGE W. CLYDE, WILLIAM
R. DICKINSON, T. WILSON DIBBLEE, ROBERT E.
EASTON, CHARLES A. EDWARDS, GEORGE S. ED-
WARDS, REGINALD G. FERNALD, MAX C. FLEISCH-
MANN, E. PALMER GAVIT, BERNHARD HOFFMANN,
CHARLES H. JACKSON, JR., KIRK B. JOHNSON,
SETH A. KEENEY, JAMES P. KENNEDY, GEORGE W.
MACLELLAN, J. J. MITCHELL, DWIGHT MURPHY,
FRANCIS PRICE, CHARLES B. RAYMOND, THOMAS
M. STORKE, and GEORGE W. WILSON, have all this
day voluntarily associated ourselves together for the pur-
pose of forming a corporation under the laws of the State
of California, and we hereby certify:
FIRST: That the name of said corporation shall be
SANTA BARBARA FOUNDATION.
SECOND: That this corporation shall be a non-profit
corporation organized solely for general charitable and
eleemosynary purposes under and pursuant to section 606
of the Civil Code of the State of California.
The property of this non-profit corporation is irrev-
ocably dedicated to charitable and eleemosynary purposes,
and on dissolution none of its assets shall inure to any
individual but shall be distributed to a fund or foundation
whose property is dedicated to exempt purposes as spec-
A102
ified in Revenue and Taxation Code 214 of the State of
California.
THIRD: That the place where its principal business
is to be transacted is at Santa Barbara, in the County
of Santa Barbara, State of California.
FOURTH: That this corporation shall have perpetual
existence.
FIFTH: The corporation shall have a total of seven-
teen (17) trustees, who shall constitute the directors of
the corporation. The trustees shall be selected in the
manner and for the term of office specified in the bylaws
of the corporation.
SIXTH: That the names of the members of the
first Board of Trustees, and the terms of office of such
members are as follows, to wit: ;
NAMES TERMS OF OFFICE
George W. Clyde 1 year
William R. Dickinson 1 year
Charles H. Jackson, Jr. 1 year
George S. Edwards 2 years
George W. MacLellan 2 years
Francis Price 2 years
Max C. Fleischmann 3 years
Dwight Murphy 3 years
Charles B. Raymond 3 years
SEVENTH: The corporation shall have no members.
EIGHTH: The Board of Trustees is authorized in
its discretion at any time and from time to time to dele-
A103
gate either in whole or in part to one or more trust
companies or banks duly authorized to conduct a trust
or banking business in the State of California, or to one
or more firms or organizations registered as investment
advisers under the Investment Advisers Act of 1940, the
matter of controlling, managing, investing, and disposing
of the property of this corporation for the purpose of
earning an income therefrom as distinguished from the
matter of applying property or funds to charitable and
eleemosynary purposes.
NINTH: The Board of Trustees, acting by a majority
vote of its members, shall have the power to adopt and
enforce one or more bylaws authorizing the Board of
Trustees, on the terms therein specified, to modify any
restriction or condition on the distribution of assets or
funds of the corporation for any specified organization,
and to replace any Trustees, custodian or agent serving
on behalf of the corporation for breach of fiduciary duty
or for failure to produce a reasonable return of net in-
come or appreciation when not inconsistent with the
corporation’s need for current income), with due regard
to safety of principal, over a reasonable period of time.
A104
ENDORSED
FILED
In the office of the Secretary of State
of the State of California
OCT 14 1981
MARCH FONG-EU, Secretary of State
By JAMES E. HARRIS
Deputy
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION
OF SANTA BARBARA FOUNDATION
Arthur L. Brown and James L. Free, Jr. hereby
certify that:
1. They are the President and Secretary, re-
spectively, of the Santa Barbara Foundation, a Cali-
fornia nonprofit public benefit corporation.
2. The Articles of Incorporation of said corpo-
ration shall be amended by amending Article Eighth
thereof to read in its entirety as follows:
EIGHTH: The Board of Trustees is authorized
in its discretion at any time and from time to
time to delegate either in whole or in part to
one or more trust companies or banks duly au-
thorized to conduct a trust or banking business
in the State of California, or to one or more
firms or organizations registered as investment
advisers under the Investment Advisers Act of
1940, the matter of controlling, managing, in-
vesting, and disposing of the property of this
corporation for the purpose of earning an income
therefrom as distinguished from the matter of
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applying property or funds to charitable and
eleemosynary purposes.
3. The foregoing amendment has been approved
by the Board of Trustees of said corporation.
4. The foregoing amendment is one which may
be adopted with the approval of the Board of Trustees
of said corporation alone, because said corporation
has no members and the approval of no other person
is required under the Articles of Incorporation of
said corporation.
IN WITNESS WHEREOF, the undersigned have ex-
ecuted this Certificate of Amendment on October 8th,
1981.
/s/ ArtHuR L. Brown
Arthur L. Brown, President
/s/ JAMES L. FREE, JR.
James L. Free, Jr., Secretary
VERIFICATION
The undersigned, Arthur L. Brown and James L.
Free, Jr., the President and the Secretary, respectively,
of the Santa Barbara Foundation, each declares under
penalty of perjury that the matters set forth in the fore-
going Certificate of Amendment are true of his own
knowledge.
Executed at Santa Barbara, California on October 8th,
1981.
/s/ ARTHUR L. Brown
Arthur L. Brown
/s/ JAMES L. FREE, JR.
James L. Free, Jr.
A106
CALIFORNIA PROBATE CODE § 1200.5
§ 1200.5. Manner of giving notice in certain instances;
time; mailing; proof of giving notice; ap-
plication of section
Text of section operative until July 1, 1987.
(a) Notice shall be given in the manner prescribed
in subdivision (b) upon the filing of any of the following:
(1) A petition under Section 641 for the setting aside
of an estate.
(2) A petition to set apart a homestead or exempt
property.
(3) A petition relating to the family allowance filed
after the return: of the inventory.
(4) A petition for leave to settle or compromise a
claim against a debtor of the decedent or a claim against
the estate or a suit against the executor or administrator
as such.
(5) A petition for the sale of stocks or bonds.
(6) A petition for confirmation of a sale or a petition
to grant an option to purchase real property.
(7) A petition for leave to enter into an agreement-
to sell or give an option to purchase a mining claim or
real property worked as a mine.
(8) A petition for leave to execute a promissory note
or mortgage or deed of trust or give other security.
Underline indicates changes or additions by amend-
ment
a Ne
A107
(9) A petition for leave to lease or to exchange
property, or to institute an action for the partition of
property.
(10) A petition for an order authorizing or directing
the investment of money.
(11) An account of an executor or administrator or
trustee.
(12) A petition for partial or ratable or preliminary
or final distribution.
(13) A petition for the delivery of the estate of a
nonresident.
(14) A petition for determination of heirship or in-
terests in an estate.
(15) A petition of a trustee for instructions.
(16) A petition for the appointment of a trustee.
(17) Any petition for letters of administration or
for probate of will, or for letters of administration-with-will
annexed, which is filed after letters of administration or
letters testamentary have once been issued.
(18) A report of status of administration.
(19) A petition for family allowance.
(20) An objection to the appraisement made by the
executor, administrator, or probate referee.
(21) A petition under Section 709 for leave to file
a claim against the estate after the expiration of the pre-
scribed period.
(22) Any other proceeding under this code in which
notice is required and no other time or: method is pre-
scribed by law or by court or judge.
A108
(b) At least 10 days before the time set for the hear-
ing of the petition or account, the petitioner or person
filing the account shall cause notice of the time and place
of hearing to be mailed to the executor or administrator,
when he or she is not the petitioner, to any coexecutor
or coadministrator not petitioning, and to all persons (or
to their attorneys, if they have appeared by attorney), who
have requested notice or who have given notice of appear-
ance in the estate in person or by attorney, as heir, devisee,
legatee or creditor, or as otherwise interested, addressed
to them at their respective post office addresses given in
their request for special notice, if any, otherwise at their
respective offices or places of residence, if known, and if
not, at the county seat of the county where the proceed-
ings are pending, or to be personally served upon such
person.
(c) Proof of the giving of notice shall be made at
the hearing; and, if it appears to the satisfaction of the
court that the notice has been regularly given, the court
shall so find in its order, and the order shall be conclusive
upon all persons when it becomes final.
(d) This section does not apply to proceedings under
Division 4 (commencing with Section 1400). When a pro-
vision of Division 4 applies the provisions of this code ap-
plicable to executors or administrators to proceedings
under Division 4, a reference to this section in the pro-
visions applicable to executors or administrators shall be
deemed to be a reference to Chapter 3 (commencing with
Section 1460) of Part 1 of Division 4.
(e) The notice required by this section shall be in
addition to the notice, if any, required to be given in the
manner specified in Section 1200.
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(Amended by Stats.1982, c. 520, p. 2446, § 11; Stats.1984,
c. 451, p. 20.3; Stats.1984, c. 1017, p. ........ , § 6.)
For text of section operative July 1, 1987, see § 1200.5, post.
§ 1200.5. Manner of giving notice in certain instances;
time; mailing; proof of giving notice; ap-
plication of section
Text of section operative July 1, 1987.
(a) Notice shall be given in the manner prescribed
in subdivision (b) upon the filing of any of the following:
(1) A petition under Section 641 for the setting aside
of an estate.
(2) A petition to set apart a homestead or exempt
property.
(3) <A petition relating to the family allowance filed
after the return of the inventory.
Asterisks * * * indicate deletions by amendment
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.