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ARTICLE VIII
SIMULTANEOUS DEATH
In the event any beneficiary and
I die simultaneously or under such
circumstances that there is not sufficient
evidence that we died other than simultaneously,
said beneficiary shall be considered,
for the purposes of the operation
of my will, to have predeceased me.
ARTICLE IX
PERSONAL REPRESENTATIVE AND TRUSTEE
A. Appointment of Personal Representative.
I hereby nominate, constitute and
appoint my dear friend and attorney,
MORRIS ENGELBERG, ESQ., as Personal
Representative of my estate. MORRIS
ENGELBERG, ESQ. may designate an individual
or a band or trust company to act
as his successor in the event he ceases
to act. MORRIS ENGELBERG, ESQ. shall
receive no fees and/or commissions
for serving as Personal Representative
of my Estate. I hereby appoint MORRIS
ENGELBERG, ESQ. as the attorney for
my Estate.
B. Appointment of Trustee.
I hereby nominate, constitute and
appoint MORRIS ENGELBERG as the Trustee
for each trust hereby created under
this my Last Will and Testament.
MORRIS ENGELBERG may, in addition,
designate and individual or a bank
or trust company to act as an additional
Trustee or as his successor in the
event he ceased to act. I hereby grant
to MORRIS ENGELBERG the power to change
the Trustee or Trustees, in writing,
at any time during his lifetime for
any reason whatsoever. I hereby grant
to MORRIS ENGELBERG the power to remove
the corporate Trustee, if any, at
any time. If there is a sole Trustee
acting as such said Trustee may, but
shall not be required to, appoint
an additional Trustee. Any designation
may be revoked by the person making
such designation at any time prior
to the qualification of the person
designated.
If, at any time, (i) a sole acting
Trustee who is required to do so fails
to appoint an additional Trustee within
thirty (30) days of the creation of
a vacancy, or (ii) there is no Trustee
acting and no successor named in this
Article or designated as provided
in this Article is available to act,
then PALM BEACH NATIONAL BANK AND
TRUST COMPANY and PAULA SUE DIMAGGIO
shall become Co-Trustees.
ARTICLE X
MISCELLANEOUS PROVISIONS PERTAINING
TO PERSONAL REPRESENTATIVE AND TRUSTEE
A. Waiver of Bond. I direct
that no Personal Representative, Trustee
or Guardian named in this Will shall
be required to furnish any bond or
other security in any jurisdiction
for the faithful performance of their
duties as such, the same being specifically
waived hereby.
B. Waiver of Registration.
I hereby waive compliance by my Trustee
with the provisions of the Florida
Statutes as they now exist requiring
registration, administration or filing
of accountings by my Trustee to any
Court. I further waive compliance
with any other law now or hereinafter
enacted in effect requiring qualification,
registration, administration or filing
of accountings by my Trustee to any
court.
C. Accounting by Trustee.
The Trustee shall prepare an account
for each taxable year of each trust
and whenever a Trustee ceases to serve,
an account shall be prepared from
the time of the last prior account
through the end of the period of service.
The Trustee shall keep each account
available for inspection by and shall
deliver copies ot the beneficiaries
eligible within the period covered
thereby to receive benefits from the
trust which is the subject of said
account. The written approval of an
account by such a beneficiary is a
minor or otherwise incompetent, shall
be final and binding as to all matters
stated therein or shown thereby upon
that beneficiary and upon all persons
then or thereafter claiming any interest
through or under him or her in the
income or principal or such trust.
Failure of such beneficiary, or of
his or her parent or guardian if such
beneficiary is a minor or otherwise
incompetent, to deliver to the Trustee
written objection to an account within
thirty (30) days after receipt thereof
shall constitute the final and binding
approval thereof by that beneficiary.
If a corporate Trustee is serving
as Trustee or Co-Trustee of any trust
pursuant to this my Last Will and
Testament, the monthly principal and
income statements prepared by the
corporate Trustee shall satisfy the
accounting requirements set forth
above.
D. Compensation. The Trustee
shall be entitled to reasonable compensation
for services rendered hereunder. Any
additional duties and responsibilities
due to acquisition of additional trust
property or the transfer into trust
of additional property shall be considered
in determining the amount, but it
shall not exceed the amount allowable
by law at the time compensation becomes
payable.
E. Vacancy. Except as otherwise
provided herein, a vacancy in the
trusteeship shall be deemed to exist
in the event of the death, resignation,
refusal, failure or inability of any
person to act as Trustee r Co-Trustee
of a separate trust. Notice of a vacancy
in the trusteeship shall be effective
if given to the next successor Trustee
by an instrument in writing signed
by the resigning predecessor Trustee,
a then acting Co-Trustee or a beneficiary
of such a separate trust, and delivered
to such successor Trustee and any
one of the other then acting Co-Trustees.
Immediately upon receipt of such notice
the recipient shall act as Trustee
(or Co-Trustee) or shall decline in
writing to act.
F. Third Parties and Bond.
No person dealing with the Trustee
of any separate trust shall be obligated
to inquire as to the powers of such
Trustee or to see to the application
of any money or property delivered
to such Trustee. Such Trustee shall
not be required to obtain authority
from or approval of any court in the
exercise of any power conferred upon
him hereunder. No Trustee shall be
required to make any current reports
or accountings to any court nor to
furnish a bond for the proper performance
of the duties of the Trustee as Trustee
of any separate trust; but if such
bond is nevertheless required by any
law, statute or rule of court, no
surety shall be required thereon.
G. Trustee Liability. No
Trustee of any separate trust shall
be liable for any loss, liability,
expense or damage to the trust estate
of such trust occasioned by such Trustee's
acts or omissions in good faith in
the administration of such trust (including
acts of omissions in reliance on opinion
of counsel) and in any event the Trustee
shall be liable only for his own willful
default, wrongdoing or gross negligence
but not for honest errors of judgment.
Except as otherwise specifically provided
herein the Trustee may rely upon any
notice, certificate, Will, affidavit,
letter, telegram or other paper or
document believed by him to be sufficient,
in making any payment, allocation
or distribution hereunder. The Trustee
shall incur no liability for any payment
or distribution made in good faith
and without actual notice or knowledge
of a changed condition or status affecting
any person's interest in any separate
trust. This Section G is intended
to protect the Trustee under the stated
circumstances, and is not intended
to affect the rights hereunder of
any person.
H. Successor Personal Representative
and/or Trustee. Any successor
Personal Representative or Trustee
whether by consolidation, merger,
transfer of trust business, conversion
into a different type organization,
resignation or otherwise, shall succeed
as Trustee or Personal Representative
with like effect as though originally
named as such.
I. Appointment of Successor Corporate
Trustee. In the event of the resignation,
refusal to act, or removal of a Corporate
Trustee as Trustee of a separate trust,
a successor corporate trustee to fill
the vacancy in the trusteeship so
occurring shall be appointed by the
beneficiary of such trust (or if there
shall be more than one beneficiary
of such trust, by the beneficiaries
jointly and unanimously) by an instrument
in writing delivered to the vacating
and the successor corporate trustees;
provided, however, that any successor
Corporate Trustee so appointed must
be a bank or trust company having
a capital and surplus of not less
than Five Million Dollars ($5,000,000).
J. Removal of Corporate Trustee.
When a bank or trust company shall
at any time be acting as Trustee or
Co-Trustee of a separate trust, the
beneficiary of such trust (or if there
shall be more than one, the beneficiaries
jointly and unanimously) may remove
said Corporate Trustee with or without
cause by delivering to said Corporate
Trustee a written instrument, signed
by said beneficiary, provided that
such written instrument shall concurrently
appoint a successor corporate trustee
pursuant to Section I of this Article.
K. Majority Determination.
Except as otherwise provided herein,
in the event of a disagreement among
the Trustees, the views of the majority
shall prevail. The affirmative vote
of a majority of those authorized
to vote on any matter shall constitute
a majority. If but two Trustees shall
be authorized to vote on a matter,
the affirmative vote of both shall
be required. Failure to obtain a majority
shall be treated as if the Trustees
failed to act. All votes shall be
taken within thirty (30) days of the
date of the event which required a
decision to be made. Any Trustee who
shall cast a negative vote with respect
to any action or any failure to act
shall in no way be liable or responsible
for such action or failure to act.
ARTICLE XI
GENERAL TRUST PROVISIONS
The following provisions shall apply
to any and all trusts created under
this Will, unless herein provided
otherwise:
A. Payment to or for Incompetents
or Minors. My Trustee may make
distributions for the benefit of any
adult beneficiary hereunder directly
to that beneficiary or to his or her
legal guardian if he or she should
be incompetent, or in direct payment
of his or her expenses of the types
that the Trustee is authorized hereby
to meet. My Trustee may make payments
for the benefit of any minor beneficiary
to his or her natural guardian or
to any other person having care or
custody of such minor, or in direct
payment of his or her expenses of
the types my Trustee is authorized
hereby to meet. The Trustee shall
not be obligated to see to the application
of funds so distributed, and the receipt
of the payee shall fully protect the
Trustee if the Trustee exercises due
care in selecting the person paid.
B. Notice to Trustees of Statue
of Beneficiaries. Until the Trustee
shall receive written notice of any
birth, marriage, death or other event
upon which the right to distribution
of the income or principal of any
trust may depend, the Trustee shall
incur no liability for distributions
made in good faith to persons whose
interests may have been affected by
that event.
C. Restraint on Alienation.
No income or principal payable to
or held for any beneficiary shall,
while in the possession of the Trustee,
be alienated, disposed of, or encumbered
in any manner other than by Trustee
action authorized hereby. Throughout
the duration of each trust, no beneficiary
thereof shall have the power voluntarily
or involuntarily to sell, alienate,
convey, assign, transfer, mortgage,
pledge or otherwise dispose of or
encumber any principal or income thereof
or any interest whatsoever therein
until physical distribution or payment
is made to him or her, and no interest
of any beneficiary in or claim to
any trust assets or benefits shall
be subject to the claims of any of
his or her creditors or to judgment,
levy, execution, sequestration, garnishment,
attachment, bankruptcy or other insolvency
proceedings, or any other legal or
equitable process.
D. Reliance by Third Parties.
No grantee, purchaser or other person
dealing with the Trustee while the
Trustee is purporting to act in such
capacity under any power or authority
granted the Trustee herein need inquire
into the initial existence of facts
upon which the purported power or
authority depends, or into the continued
existence of the power or authority
of the transaction, or the proper
application of the proceeds or other
consideration.
E. Rule Against Perpetuities.
The trusts created under this Will
shall in any event terminate twenty-one
(21) years after the death of the
last survivor of such of the beneficiaries
of the trusts created hereunder as
shall be living at the time of my
death, and thereupon the property
held in trust shall be distributed,
discharged of trust, to the then income
beneficiaries thereof, in accordance
with their respective interests in
each particular trust.
F. Frequency of Distribution
of Income. Unless otherwise specifically
indicated under the terms of this
Will, any distribution of income required
to be made under any trust created
under this Will shall be made at any
times fixed by the Trustee but at
least as often as quarter-annually.
ARTICLE XII
TRUST FOR BENEFICIARIES UNDER 21
YEARS
Except as otherwise provided in
this my Last Will and Testament, if
any part of my estate, other than
a bequest of tangible personal property
under this Will hereof, becomes distributable
absolutely to any beneficiary who
has not attained twenty-one (21) years
of age at the time of distribution,
then his or her share shall be distributed
to my Trustees hereinafter designated,
IN TRUST, and the Trustee shall use
so much of the income principal of
such beneficiary's particular share
necessary or desirable in the exercise
of the Trustee's discretion, for the
proper health, education, support
and maintenance of such beneficiary.
Any income not so used shall be added
to the principal of the Trust at the
end of each fiscal year of the Trust.
At the time such beneficiary attains
the age of twenty-one (21) years,
or upon his or her death, whichever
occurs first, the Trust shall terminate
as to such beneficiary's particular
share, and the then remaining principal
thereof shall be distributed absolutely
to such beneficiary, of if such beneficiary
is then deceased, to his or her estate.
ARTICLE XIII
POWERS
Any fiduciary named in this Will
shall have all of the powers and protection
granted to them by statute at the
time of application including, but
not limited to, the prudent man rule,
Revised Florida Principal and Income
Law, Florida Trust Administration
Act, and the Florida Probate Code,
and not in limitation of any common-law
or statutory authority, and without
application to any court, they shall
have the powers and responsibilities
described below, to be exercised in
their absolute discretion:
A. To sell any and all real estate
held as an asset of my Estate and
Trusts at such times, at public or
private sale, for such prices and
upon such terms as it deems advisable,
and to make, execute, and deliver
any deed or deeds there for, conveying
title hereto in fee simple absolute,
or for any less estate to any purchaser
or purchasers, freed and discharged
or any and all Trusts hereunder.
B. To sell, exchange, lease, encumber,
option, or otherwise dispose of all
or any portion or my Estate and Trusts
in such manner and upon such terms
and conditions as it deems advisable,
and to make, execute, and deliver
deeds, mortgages, leases, assignments
and other documents necessary to effectuate
any of the powers granted (which shall
specifically include the authority
to grant leases which extend beyond
the terms of any Trust hereunder and
beyond the period authorized by law).
C. To exercise all tax-related elections,
options, and choices in such manner
as will achieve, in such fiduciaries'
sole judgment, the overall minimum
in total combined present and reasonably
anticipated future taxes of all kinds,
upon not only my estate, but also
its beneficiaries, any trusts hereunder
and their beneficiaries. With limitation
on the generality of the foregoing,
the aforesaid direction to minimize
taxes shall include the following
particular matters:
(1) exclusion from or inclusion
in my gross estate of any assets,
and all matters of valuation, in the
first instance, for federal estate
tax purposes;
(2) election as to alternative
valuation dates for federal estate
tax purposes;
(3) allocation of such charges
and costs of administration as are
available for reduction of either
federal estate or income taxes;
(4) election to continue, revoke,
or make any consent to any election
under subchapter S of the Internal
Revenue Code of 1986, as amended;
(5) selection of any appropriate
income tax year, timing the distributions
and of payment of deductible expenses,
et cetera; and
(6) retaining of competent tax
counsel, for advice, the preparation
of returns, et cetera.
Such fiduciaries shall not be accountable
to any person interested in any trust
or in my estate for the manner in
which they shall carry out this direction
to minimize over all taxes and, even
though their discretion in this regard
may result in increased tax or decreased
distribution to a trust, to the estate,
or to one or more beneficiaries, there
shall in no event be any compensating
readjustments or reimbursements between
any of the trusts hereunder or any
of the trust or estate accounts or
beneficiaries by reason of the manner
in which the fiduciaries thus carry
out said direction.
D. Services of Outside Representatives.
My attorney and friend, Morris Engelberg
Esq., or his designated representative
as so appointed by him, in writing
prior to his death, shall act as the
representative of my estate and all
trusts created hereunder in connection
with the licensing and/or use of any
name, photo, likeness, image and facsimile
signature or memorabilia items to
include, but not limited to, baseballs,
T-shirts, photographs, mugs, jerseys,
bats, baseball gloves, and other memorabilia-type
merchandise together with all existing
contracts in effect at the time of
my death.
ARTICLE XIV
DEFINITIONS
Whenever used in this will, unless
the context of any passage thereof
requires otherwise:
A. The term "Personal Representative"
includes Executor, Executrix, Executrices,
Executors, and Administrator, Administratrix,
Administrators, and Administratrices,
with or without the Will annexed,
as well as all their substitutes and
successors.
B. The term "Trustee" means the
singular or multiple Trustees appointed
herein, as well as their substitutes
and successors.
C. The term "education" shall be
construed to mean not only all levels
of education in the customary sense,
including private tutorials and professional
and advanced education, but also spiritual
education, musical instruction, and
physical education, including summer
camps for minor beneficiaries.
D. The term "health" shall be construed
to include medical, dental, hospital,
drug and nursing costs, as well as
all expenses of invalidism and costs
of medically prescribed equipment
and travel.
E. The term "maintenance and support"
shall mean the maintenance and support
of the income beneficiaries in accordance
with their accustomed manner of living.
F. The term "income" shall mean
net income after the payment of all
trust administration expenses, trustees'
fees, and taxes other than beneficiary
income taxes.
G. The term "child" and "children"
shall mean my son, JOSEPH PAUL DIMAGGIO
Jr.
H. The terms "grandchild" and "grandchildren"
shall mean my two granddaughters,
KATHERINE MARIE DIMAGGIO and PAULA
SUE DIMAGGIO.
I. The terms "great grandchild"
and "great grandchildren" shall mean
my three great granddaughters, KENDAHL
R. STEIN, VALERIE F. HAMRA, and VANESSA
S. HAMRA, and my great grandson, MITCHELL
J. STEIN.
J. The singular includes the plural
and the plural includes the singular.
ARTICLE XV
CONSTRUCTION OF WILL
The headings and subheadings used
throughout this Will are for convenience
only and have no significance in the
interpretation of the body of this
Will and I direct that they be disregarded
in construing the provisions of this
Will.
IN WITNESS WHEREOF, I have hereunto
subscribed my name and affixed my
seal at Hollywood, Broward County,
Florida, this 21st day of May, 1996,
in the presence of the subscribing
witnesses whom I have requested to
become attesting witnesses hereto.
/s/
JOSEPH P. DIMAGGIO
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