[PROPOSED] FINAL DECREE, STIPULATION OF SETTLEMENT AND DISCONTINUATION OF ACTIONS WITH PREJUDICE

Transcription

1 STATE OF NEW YORK SURROGATE S COURT COUNTY OF ERIE In the Matter of the Judicial Settlement of the Final Account of Bank of America, N.A. (Successor to Old Colony Trust Company) and the Estate of Hazard K. Campbell, Sr. (Successor to Hazard K. Campbell, now deceased) as Trustees of the Trust Under Agreement, dated May 8, 1957, f/b/o Gracia M. Campbell (formerly known as Gracia M. Meyer) File No In the Matter of the Judicial Settlement of the Final Account of Bank of America, N.A. (Successor to Old Colony Trust Company) and the Estate of Hazard K. Campbell, Sr. (Successor to Hazard K. Campbell, now deceased) as Trustees for the Benefit of the Issue of Gracia M. Campbell (formerly known as Gracia M. Meyer) under Agreement dated May 8, 1957 of Marjorie C. Klopp, Deceased File No [PROPOSED] FINAL DECREE, STIPULATION OF SETTLEMENT AND DISCONTINUATION OF ACTIONS WITH PREJUDICE The Court has been informed by counsel for Petitioner Bank of America, N.A. ( Bank of America or the Bank ), counsel for Objectants Gracia E. Gaye Campbell ( Gaye ), Clarissa L. Vaida ( Clarissa ), and Heather Byrne ( Heather ) (collectively Objectants ) and James Domalgalski, Esq. as guardian ad litem (the GAL ) for Alexander Moses, Forrest Moses, and Sophia Byrne (the Wards ) (collectively the Parties ) that a settlement (the Settlement ) has been reached in the above-captioned matters to resolve all outstanding objections and other issues (collectively the Claims ) among the Parties regarding the accounts (the Accounts ) filed with this Court by the Bank and the late Hazard K. Campbell for Gracia s Trust (File No ) and the Issue Trust (File No ) (the Trusts ). 1

2 The Parties hereby further inform the Court that concurrently herewith the GAL has filed with the Court his Report and Recommendation and application for approval of his fees and disbursements in this matter (the GAL Report ), to which the Bank and the Objectants have no objection. Pursuant to the terms of the Settlement and of the GAL Report, the Parties jointly request entry of a Final Decree to finally resolve the Claims, approve the GAL s fees and disbursements, and otherwise to bring these accounting proceedings to a close, as follows: (a) Objectants shall withdraw their objections to the Accounts (the Objections ), and they consent to the Objections being dismissed with prejudice; (b) (c) The Accounts shall be judicially settled and allowed by the Court; Gracia s Trust shall be finally terminated and, pursuant to the GAL Report, the Bank shall as soon as reasonably practicable disburse from Gracia s Trust cash in the amount of $68, to the GAL for final payment of the GAL s fees and disbursements associated with Gracia s Trust and thereafter shall distribute the remaining assets of Gracia s Trust, net of the Trust s estimated 2016 income tax liability, to Gaye and Clarissa as they or their counsel direct in shares such that the share for Gaye exceeds the share for Clarissa by, as nearly as practicable, $277,768; (d) Objectants shall withdraw their appeal of the Court s May 3, 2015 Order entered in the Proceeding that denied Objectants petition for construction of the Will of Gracia M. Campbell, currently pending before the New York Appellate Division Fourth Department under Docket Number CA (the Will Construction Appeal ), without prejudice to Objectants right to perfect their appeal of the May 3, 2015 Order entered in the Proceeding; 2

3 (e) The Issue Trust shall be terminated and, pursuant to the GAL Report, the Bank shall as soon as reasonably practicable disburse, net of the Trust s estimated 2016 income tax liability, the remaining assets of the Issue Trust in equal shares, as nearly as practicable, to beneficiaries Gaye, Clarissa, Heather, Peter C. Flickenger ( Peter ), and Alexandra F. Secor ( Alexandra ), as they or their counsel shall direct; (f) The Bank, and Benjamin Klopp Campbell and Melissa Campbell England, as personal representatives of the Estate of Hazard K. Campbell ( Petitioners ), shall be released and discharged of all other responsibility or liability to the Objectants, the GAL, or any person with respect to any Claims, or the Trusts, including without limitation all actions or inactions taken by the Bank or Hazard K. Campbell as Trustees of the Trusts from the inception of the Trusts through the date of the entry of this Final Decree; (g) Pursuant to a written settlement agreement solely between the Objectants and the Bank, the Bank paid a sum of money to the Objectants in escrow (the Settlement Proceeds ) which escrow shall be released pursuant to the terms of the Settlement and this Final Decree; (h) Pursuant to a written settlement agreement solely between the Objectants and the GAL, Objectants and the GAL have agreed as follows: a. Eliza Moses and Heather within ten (10) days of entry of this Final Decree will set up Custodial Accounts for the benefit of each of the Wards, as follows: i. Eliza Moses shall establish a Custodial Account f/b/o Forrest Moses set up and administered pursuant to the Florida Uniform Transfers to Minors Act (Florida Statute 710) with Eliza Moses as custodian of said Account; and 3

4 ii. Eliza Moses shall establish a Custodial Account f/b/o Alexander Moses set up and administered pursuant to Florida Uniform Transfers to Minors Act (Florida Statute 710), with Eliza Moses as Custodian of said Account; and iii. Heather shall establish a Custodial Account f/b/o Sophia Byrne set up pursuant to the California Uniform Transfers To Minors Act, (Prob. C ) with Heather as Custodian of said Account. b. Within five days of receiving proof that the above-mentioned custodial accounts have been established for Alexander Moses, Forrest Moses and Sophia Byrne, counsel for the Objectants as escrow agent ( Koncelik ) shall distribute $200, of the Settlement Proceeds to Eliza Moses, in her capacities as UTMA custodian for Alexander Moses and Forrest Moses, and $122, of the Settlement Proceeds to Heather, in her capacity as UTMA custodian for Sophia Byrne, for the benefit of the Wards (collectively the Wards Settlement ); and c. Objectants, the GAL and Koncelik as escrow agent agree that other than paying the Wards Settlement, Koncelik shall not distribute any of the Settlement Proceeds, until each of the following conditions have been satisfied: i. The GAL consents and agrees that the funds have been deposited into the respective Custodial Accounts as described above, which consent shall not be unreasonably withheld; and 4

5 ii. Koncelik sends the GAL proof (by , or via the New York State Uniform Court efiling system, and certified mail) that the Will Construction Appeal has been withdrawn. d. The GAL agrees that after the conditions contained in the paragraphs above have been met, the GAL consents to Koncelik as escrow agent distributing the remaining Settlement Proceeds as directed by this Final Decree. (i) The Petitioners shall be dismissed as parties from the above-captioned matters, the proceedings in these matters shall be dismissed with prejudice as settled, and the matters shall be closed and removed from the Court s active docket. Having considered the joint request of the GAL and counsel for the Bank and Objectants, and having been advised as to the settlement among the Parties and noting the absence of any objections, it is hereby: ORDERED that the Objections are deemed withdrawn and are dismissed with prejudice; and it is further ORDERED that no Party or any other person may file any further objections with respect to the Accounts; and it is further ORDERED that the Accounts are hereby judicially settled and allowed; and it is further ORDERED that Gracia s Trust is hereby finally terminated, and that the Bank shall as soon as practicable (a) disburse from the assets of Gracia s Trust cash in the amount of $68, to the GAL for final payment of the GAL s fees and disbursements associated with Gracia s Trust, and (b) distribute the remaining assets of Gracia s Trust, net of the Trust s 2016 estimated income tax liability, outright, in cash or specific property, or an undivided interest, or partly in cash and partly in such property without regard to the income tax basis of the specific 5

6 property so allocated, and without making pro rata distribution of specific assets, to Gaye and Clarissa, to brokerage or other accounts as they or their counsel shall direct in shares such that the share for Gaye exceeds the share for Clarissa by, as nearly as practicable, $277,768; and it is further ORDERED that the Issue Trust is hereby terminated and that Bank shall distribute the remaining assets of the Issue Trust, net of the Trust s 2016 income tax liability, outright, in cash or specific property, or an undivided interest, or partly in cash and partly in such property without regard to the income tax basis of the specific property so allocated, and without making pro rata distribution of specific assets, in equal shares, as nearly as practicable, to Gaye, Clarissa, Heather, Peter, and Alexandra to brokerage or other accounts as they or their counsel shall direct; and it is further ORDERED that Petitioners are hereby released and discharged of all further responsibility or liability to the Objectants, the GAL, or any other person with respect to the Trusts, including without limitation with respect to all actions or inactions taken by the Bank or Hazard K. Campbell as Trustees of the Trusts from the inception of the Trusts through the date of this Final Decree; and it is further ORDERED that no later than 3 business days of the entry of this Final Decree, Objectants shall withdraw the Will Construction Appeal, without prejudice to Objectants right to perfect their appeal of the May 3, 2015 Order entered in the Proceeding; and it is further ORDERED that the Settlement Proceeds shall be released from escrow pursuant to the terms of the Settlement, as follows: a. Within ten (10) days of entry of this Final Decree Custodial Accounts for the benefit of each of the Wards will be set up, as follows: 6

7 i. Eliza Moses shall establish a Custodial Account f/b/o Forrest Moses set up and administered pursuant to the Florida Uniform Transfers to Minors Act (Florida Statute 710) with Eliza Moses as custodian of said Account; and ii. Eliza Moses shall establish a Custodial Account f/b/o Alexander Moses set up and administered pursuant to Florida Uniform Transfers to Minors Act (Florida Statute 710), with Eliza Moses as Custodian of said Account; and iii. Heather shall establish a Custodial Account f/b/o Sophia Byrne set up pursuant to the California Uniform Transfers To Minors Act, (Prob. C ) with Heather as Custodian of said Account. b. Within five days of receiving proof that the above-mentioned custodial accounts have been established for Alexander Moses, Forrest Moses and Sophia Byrne, Koncelik shall distribute $200, of the Settlement Proceeds to Eliza Moses, in her capacities as UTMA custodian for Alexander Moses and Forrest Moses, and $122, of the Settlement Proceeds to Heather, in her capacity as UTMA custodian for Sophia Byrne, for the benefit of the Wards; and c. Objectants, the GAL and Koncelik as escrow agent agree that other than paying the Wards Settlement, Koncelik shall not distribute any of the Settlement Proceeds, until each of the following conditions have been satisfied: 7

8 i. The GAL consents and agrees that the funds have been deposited into the respective Custodial Accounts as described above, which consent shall not be unreasonably withheld; and ii. Koncelik sends the GAL proof (by , or via the New York State Uniform Court efiling system, and certified mail) that the Will Construction Appeal has been withdrawn d. After the conditions contained in the paragraphs above have been met, the remaining Settlement Funds shall be released from escrow. and it is further ORDERED that except as provided in paragraphs 4 above with respect to the GAL, each Party shall bear that Party s own attorneys fees, costs and expenses in connection with the above-captioned matters; and it is further ORDERED that Petitioners are dismissed as parties from the above-captioned matters, the proceedings in these matters are concluded and dismissed with prejudice as settled, and the Clerk is directed to close these matters and remove them from the Court s active docket. Buffalo, New York Hon. Barbara Howe Surrogate Judge 8

9 Dated:, 2017 Gracia E. Campbell Clarissa L. Vaida Heather Byrne Lawrence J. Koncelik, Jr., Esq., on behalf of Objectants Brian E. Pumphrey, Esq., on behalf of Bank of America, N.A. Paul V. Nunes, Esq., on behalf of Bank of America, N.A. James P. Domagalski, Esq., Guardian ad Litem for Alexander Moses, Forrest Moses and Sophia Byrne 9