Stevens et al v. First State Bank and Trust

Filing 29

MEMORANDUM AND ORDER re: 21 First MOTION for Summary Judgment filed by Plaintiff Thomas Jefferson Stevens, II, Plaintiff Kathryn Anne Stevens, Plaintiff Martha Anne Stevens: IT IS HEREBY ORDERED that Plaintiffs' motion for summary j udgment with respect to Count I of their complaint is GRANTED. (Doc. No. 21.) IT IS FURTHER ORDERED that the testamentary trust of Decedent, Martha Viar Stevens, set out in the Last Will and Testament of Martha Viar Stevens dated March 29, 2001, shal l be amended in accordance with the amended trust document titled, "Amended Martha Viar Stevens Testamentary Trust" (Doc. No. 29-1), attached hereto and incorporated herein by reference as Exhibit I. Signed by District Judge Audrey G. Fleissig on 5/2/2013. (Attachments: # 1 Exhibit I)(JMC)

Exhibit I

AMENDED MARTHA VIAR STEVENS TESTAMENTARY TRUST
TO ALL TO WHOM THESE PRESENTS SHALL COME: GREETINGS
WHEREAS, Martha Viar Stevens created a testamentary trust (the “Trust”) in her
Last Will and Testament dated the 29th day of March, 2001; and
WHEREAS, Martha Viar Stevens is now deceased; and
WHEREAS, the First State Bank & Trust Company of Caruthersville, Missouri
(“First State Bank & Trust Company”) was the Trustee of the Trust; and
WHEREAS, First State Bank & Trust Company has resigned as Trustee of the
Trust; and
WHEREAS, Martha Anne Stevens, Thomas Jefferson Stevens, II and Kathryn
Anne Viar Stevens and her future natural born issue, if any, are the only beneficiaries of
the Trust; and
WHEREAS, Martha Anne Stevens, Thomas Jefferson Stevens, II and Kathryn
Anne Viar Stevens consent to the withdrawal of First State Bank & Trust Company as
Trustee and now desire to amend the trust as specified hereinbelow; and
WHEREAS, First State Bank & Trust Company, prior to its withdrawal as
Trustee, did consent to the amendment of the Trust; and
WHEREAS, the successor Trustees named herein below are willing to accept the
terms of the Trust herein stated and covenants to discharge faithfully the duties of Trustee
hereunder; and

WHEREAS, the United States District Court for the Eastern District of Missouri
approves the amendment to the Trust as specified hereinbelow;
NOW, THEREFORE, for the reasons set forth above, and in consideration of the
mutual covenants set forth herein, the sufficiency of which is hereby acknowledged, the
Trust is hereby amended in whole by this instrument, which sets forth all of the terms and
conditions relating to the administration, investment and distribution of the property now
and from time to time hereafter held under that Trust and the income thereof after this
date.
ARTICLE I
IDENTIFICATION OF TRUST
Hereinafter, this Trust shall be referred to as “The Martha Viar Stevens
Testamentary Trust dated March 29, 2001 and as amended on
, 2013.”
ARTICLE II
TRANSFERRED PROPERTY
A.

Property Transferred to the Trustee. Property transferred to the Trust by

the settlor and Grantor, Martha Viar Stevens, and her Probate Estate, shall be held under
this Trust (such property shall be referred to as the “Trust Fund”). Such property includes
without limit property transferred at the Grantor’s death by Will or other instrument, and
all assets held by the Probate Estate of the Grantor wheresoever situated, and further
includes without limit, the following real property: (a) approximately 397 Acres of farm
land located in Pemiscot County, Missouri; (b) real property located in DeSoto County,
Mississippi, known and numbered as: 3757 Iron Horse Drive, Horn Lake, Mississippi

38637; and (c) real property located in Pemiscot County, Missouri, known and numbered
as: 2805 South Ward Avenue, Caruthersville, MO 63830.
ARTICLE III
BENEFICIARIES AND PAYMENTS AFTER GRANTOR’S DEATH
The Trust is held and administered for the benefit of Grantor’s children, Thomas J.
Stevens, II and Martha Anne Stevens, and Grantor’s granddaughter, Kathryn Anne Viar
Stevens, and her future natural born issue, if any (the “Beneficiaries”). The Trustees
named in Article XIII hereinbelow (“Trustee(s)”) or their successors in trust, shall
dispose of the Trust Estate, as follows:
A.

Taxes. The Trustee(s) shall pay any taxes that result from or are due from

the Grantor or the Grantor’s estate, upon or after the Grantor’s death, out of the Trust
Fund in the manner provided below in the provisions governing payment of taxes.
B.

Balance of the Trust Fund. After the foregoing payments and

distributions, the Trustee(s) shall dispose of the balance of the Trust Estate in the manner
provided below.
ARTICLE IV
FARM REAL ESTATE
The Real Property consisting of approximately 397 Acres of farm land located in
Pemiscot County, Missouri (the “Farm" or “Farm Property”), is to be held under this
Trust and shall be administered as follows:
A.

During the Beneficiaries’ Lifetime. The following provisions shall apply

during the Beneficiaries’ life:

1.

The Trustee(s) shall prudently manage the farm property to produce income

and shall distribute the net income of the Farm Property to Grantor’s children, Thomas
Jefferson Stevens, II and Martha Anne Stevens, in substantially equal shares on an annual
basis, on or about the fifteenth (15th) day of December of each year. Upon the death of
the first to die of Thomas Jefferson Stevens, II and Martha Anne Stevens, the annual net
income of the Farm Property shall be paid to the surviving beneficiary for life. Upon the
death of the surviving beneficiary, the annual net income of the Farm Property shall be
paid to Grantor’s granddaughter, Kathryn Anne Viar Stevens, for life.
2.

The Trustee(s) may (but shall not be required to), in their sole discretion,

distribute to a Beneficiary or Beneficiaries as much of the principal of the Farm Property,
even up to the exhaustion of the principal thereof, as the Trustee(s) may at any time and
from time to time reasonably determine necessary for the recipient’s health, maintenance
and support in reasonable comfort. The Trustee(s) may (but shall not be required to), in
their sole discretion, invade as much of the principal of the Farm Property as the
Trustee(s) may at any time and from time to time reasonably determine necessary for
capital improvement, management or upkeep of the Farm property.
3.

Notwithstanding any other provision of this Article to the contrary, if any

of the Trustees is an “Interested Trustee” as defined elsewhere in this Trust, the
Trustee(s) may make distributions of the principal of the Trust to himself or herself as
provided herein above only if such a distribution is approved by a majority of the number
of the Beneficiaries to whom the current trust income may or must then be distributed.
4.

Among the circumstances and factors to be considered by the Trustee(s) in

determining whether to make discretionary distributions of principal to a Beneficiary are:
the other income and assets known to the Trustee(s) to be available to that Beneficiary
and the advisability of supplementing such income or assets. As used throughout this
instrument, the term "education" includes, but is not limited to, private schooling at the
elementary and secondary school level, college, graduate and professional education, and
specialized or vocational training. Notwithstanding the foregoing, no Trustee hereunder
shall be required to inquire into and ascertain the income and assets available to a
Beneficiary from sources outside the Trustee's control and knowledge.
5.

Without limiting the Trustee(s)’s discretion, it is suggested that no

distribution of principal be made from any trust for a Beneficiary that is exempt from
Federal generation-skipping transfer tax (a “GST Exempt Trust”) until the principal of
any trust that is not exempt from Federal generation-skipping transfer tax (a “GST NonExempt Trust”) for that Beneficiary is exhausted, unless there is a compelling reason to
do so.
B.

Upon the Last Surviving Beneficiary’s Death. Upon the death of the last

surviving Beneficiary under this article, the property then held in trust shall be set aside
and divided into equal shares for the descendants of Kathryn Anne Viar Stevens, per
stirpes, provided, however, that if any such beneficiary under this paragraph has not
reached age twenty-five at the time of distribution, then distribution of each such
beneficiary’s share under this Article shall be made instead to the Trustee(s) designated
in Article VI of this instrument, to be held as a Beneficiary’s Separate Trust. If there is no
such descendant of Kathryn Anne Viar Stevens then living, then the remaining property

held in trust under this Article shall be distributed pursuant to the terms of the Residuary
Estate provided in Article V below in this Trust.
C.

Trustees May Confer Power. The Trustee(s) may at any time, prior to the

death of a Beneficiary, by an instrument in writing (1) confer upon a Beneficiary a power
exercisable only by Will to appoint all or part of the trust to the creditors of the
Beneficiary’s estate (other than any taxing authority), and the instrument conferring
power may require consent of the Trustee(s) (other than any Interested Trustee) (2)
revoke any such instrument previously executed, with or without executing a replacement
instrument and/or (3) irrevocably relinquish the powers conferred under (1) and/or (2).
Without limiting the Trustee(s)’s discretion, the Trustee(s) may use the authority
conferred by this paragraph to subject the trust property to estate tax instead of the
generation-skipping transfer tax when it appears that it may reduce overall taxes to do so.
The Beneficiary’s power conferred by this paragraph shall not be exercisable in any
manner so as to postpone the vesting of any estate or interest in the appointed property or
to suspend the absolute ownership or power of alienation of the appointed property for a
period ascertainable without regard to the date of the Grantor’s death, and the validity of
any exercise shall be measured with respect to that date. Notwithstanding any other
provision of this paragraph to the contrary, if the Trustee is an “Interested Trustee” as
defined elsewhere in this Trust instrument, such a Trustee may exercise the authority
conferred by this paragraph to the creditors of his or her own estate only if such an
exercise of power is approved by a majority of the number of the Beneficiaries to whom
the current trust income may or must then be distributed.

D.

Powers of the Trustees.

1.

The Trustee(s) of any trust created or held under this Article shall have the

powers of the Trustee(s) as defined elsewhere in this Trust, including without limit those
powers defined in Article XIV of this Trust.
2.

Management of the Farm. In addition, the Trustee(s) of any trust created

or held under this Article may hire and/or fire any person or persons to manage the Farm
as the Trustee(s) may determine in the Trustee(s)’s sole discretion, from time to time and
shall have the power to negotiate for and or enter into any agreement with any other
person or persons necessary to exercise this power, as well as to modify or cancel any
such agreement.
ARTICLE V
RESIDUE
The balance of the Trust Estate (the “Residuary Trust Fund”), including any
property mentioned above but not effectively disposed of, is to held and administered by
the Trustee(s) for the benefit of the Grantor’s children, Martha Anne Stevens and Thomas
Jefferson Stevens, II and Grantor’s grandchild, Kathryn Anne Viar Stevens, and her
future natural born issue, if any (the “Beneficiaries”), and shall be administered as
follows:
A.

During the Beneficiaries’ Lifetime. The following provisions shall apply

during the Beneficiaries’ life:
1.

The Trustee(s) shall distribute the net income of the Residuary Trust Fund

to Grantor’s children, Thomas Jefferson Stevens, II and Martha Anne Stevens, in

substantially equal shares on an annual basis, on or about the fifteenth (15th) day of
December of each year. Upon the death of the first to die of Thomas Jefferson Stevens, II
and Martha Anne Stevens, the annual net income of the Residuary Trust Fund Property
shall be paid to the surviving beneficiary for life. Upon the death of the surviving
beneficiary, the annual net income of the Residuary Trust Fund Property shall be paid to
Grantor’s granddaughter, Kathryn Anne Viar Stevens, for life.
2.

The Trustee(s) may (but shall not be required to), in their sole discretion

distribute to a Beneficiary or Beneficiaries as much of the principal of the Residuary
Trust Fund as the Trustee(s) may at any time and from time to time reasonably determine
necessary for the recipient’s health, maintenance and support in reasonable comfort.
3.

Notwithstanding any other provision of this Article to the contrary, if a

Trustee is an “Interested Trustee” as defined elsewhere in this Trust instrument, such a
Trustee may make distributions of the principal of the Residuary Trust Fund to himself or
herself as provided herein above only if such a distribution is approved by a majority of
the number of the Beneficiaries to whom the current trust income may or must then be
distributed.
4.

Among the circumstances and factors to be considered by the Trustee(s) in

determining whether to make discretionary distributions of net income or principal to a
Beneficiary are: the other income and assets known to the Trustee(s) to be available to
that Beneficiary and the advisability of supplementing such income or assets. As used
throughout this instrument, the term "education" includes, but is not limited to, private
schooling at the elementary and secondary school level, college, graduate and

professional education, and specialized or vocational training.
5.

Without limiting the Trustee(s)’s discretion, it is suggested that no

distribution of principal be made from any trust for a Beneficiary that is exempt from
Federal generation-skipping transfer tax (a “GST Exempt Trust”) until the principal of
any trust that is not exempt from Federal generation-skipping transfer tax (a “GST NonExempt Trust”) for that Beneficiary is exhausted, unless there is a compelling reason to
do so.
B.

Upon the Last Surviving Beneficiary’s Death. Upon the death of the last

surviving Beneficiary under this article, the Residuary Trust Fund Property then held in
trust shall be set aside and divided into equal shares for the descendants of Kathryn Anne
Viar Stevens, per stirpes, provided, however, that if any such beneficiary under this
paragraph has not reached age twenty-five at the time of distribution, then distribution of
each such beneficiary’s share under this Article shall be made instead to the trustee(s)
designated in Article VI of this instrument, to be held as a Beneficiary’s Separate Trust.
If Kathryn Anne Viar Stevens dies leaves no living issue, then the remaining property
held in trust under this Article shall be distributed to those persons who would have
inherited the personal estate of Kathryn Anne Viar Stevens, and in the shares they would
have inherited the same, had Kathryn Anne Viar Stevens died a resident of the State of
Missouri without a valid Will (i.e., Kathryn Anne Viar Stevens’ intestate successors
under the laws of the State of Missouri).
ARTICLE VI
BENEFICIARY’S SEPARATE TRUST

Property that is to be held in a Beneficiary’s Separate Trust shall be held under
this Article and all above references to a “Beneficiary’s Separate Trust” shall be to any
trust or trusts held under this Article.
A.

During the Beneficiary’s Lifetime. The following provisions shall apply

during the Beneficiary’s life:
1.

The Trustee(s) shall distribute liberally to the Beneficiary or the

Beneficiary’s Guardian as much of the net income and principal of the trust as the
Trustee(s) (excluding, however, any Interested Trustee) may at any time and from time to
time determine, even to the extent of exhausting principal, for any purpose, in such
amounts or proportions as the Trustee(s) (excluding, however, any Interested Trustee)
may select, for the recipient’s health, maintenance and support in reasonable comfort, and
education.
2.

Any net income not so distributed shall be accumulated and annually added

to principal.
3.

The primary concern during the period described in this Article is for the

health, support in reasonable comfort, and education of the Beneficiaries, rather than for
the preservation of principal for ultimate distribution to the Beneficiaries.
4.

Among the circumstances and factors to be considered by the Trustee(s) in

determining whether to make discretionary distributions of net income or principal to a
Beneficiary are: the other income and assets known to the Trustee(s) to be available to
that Beneficiary and the advisability of supplementing such income or assets. As used
throughout this instrument, the term "education" includes, but is not limited to, private

schooling at the elementary and secondary school level, college, graduate and
professional education, and specialized or vocational training. Notwithstanding the
foregoing, no Trustee hereunder shall be required to inquire into and ascertain the income
and assets available to a Beneficiary from sources outside the Trustee's control and
knowledge.
5.

At such time as the Beneficiary shall reach the age of twenty-one (21) years

(a “basic distribution date”), the Trustee(s) shall distribute one-half (1/2) of the principal
of the Trust to the Beneficiary. At such time as the Beneficiary shall reach the age of
twenty five (25) years, (a “basic distribution date”), the Trustee(s) shall distribute the
remaining principal of the trust to the Beneficiary.
6.

Whenever income or principal becomes distributable to a person under

twenty-one (21) years of age (described in this Article as a “Minor” regardless of the
actual legal age of majority), or is under any legal disability, or in the opinion of the
Trustee(s) is incapable of properly managing his or her financial affairs, then the
Trustee(s) may make those distributions directly to the Beneficiary, to a lawful guardian
or to a custodian selected by the Trustee(s) for the Beneficiary under a Uniform Transfers
to Minors Act (the “Act”) or similar applicable law, or may otherwise expend the
amounts to be distributed for the benefit of the Beneficiary in such manner as the
Trustee(s) consider advisable. The Trustee(s) may select any age for termination of the
custodianship permitted under the Act, giving due consideration to selecting twenty-five
(25) years of age if that is permitted, and may designate successor custodians.
7.

The Trustee(s) may actually distribute the property to anyone serving as

Trustee(s) under this Trust, in a manner so that it then vests in the Minor, to hold the
same as donee of a power during minority, such donee to have all the powers of a Trustee
under this Trust (including the power to apply the property for the Minor) and to be
compensated as if the property were a separate trust, but with no duty to account to any
court periodically or otherwise.
8.

The Trustee(s) may distribute the property to a Guardian of the Minor’s

9.

The Trustee(s) shall be free from any responsibility for the subsequent

estate.

disposition of the property if it is distributed in one of the ways specified in this Article.
10.

Despite the preceding provisions of this instrument, the Trustee(s) may

elect to withhold any property otherwise distributable under this Article to a Beneficiary
who has not reached the age of thirty (30) years and may retain the property for that
Beneficiary, to be distributed to the Beneficiary when he or she reaches the age of thirty
(30) years, or before then if the Trustee(s) so elect. The Trustee(s) shall apply as much of
the net income and principal of the trust so retained as the Trustee(s) determines to be
required from time to time for the health, support in reasonable comfort, and education of
the Beneficiary for whom the trust is named, considering all circumstances and factors
deemed pertinent by the Trustee(s). Any undistributed net income shall be accumulated
and added to principal, as from time to time determined by the Trustee. If the Beneficiary
for whom the trust is named dies before complete distribution of the trust, the remaining
net income and principal of the trust shall be distributed to the Beneficiary's estate.
11.

Without limiting the Trustee(s)’s discretion, it is suggested that no

distribution of principal be made from any trust for a Beneficiary that is exempt from
Federal generation-skipping transfer tax (a “GST Exempt Trust”) until the principal of
any trust that is not exempt from Federal generation-skipping transfer tax (a “GST NonExempt Trust”) for that Beneficiary is exhausted, unless there is a compelling reason to
do so.
B.

Upon the Beneficiary’s Death. Upon the Beneficiary’s death, the property

then held in his or her trust shall be set aside and divided into equal shares for the
Beneficiary’s descendants per stirpes, or if there is no descendant of the Beneficiary then
living and if the Beneficiary was a grandchild or more remote descendant of the Grantor,
for the descendants then living of the Beneficiary’s nearest ancestor who was a
descendant of the Grantor, with descendants then living. If there is no such descendant
then living, or if the Beneficiary was a child of the Grantor, then the property shall lapse
and pass as part of the Residuary Trust Estate under this Trust.
C.

Trustees May Confer Power. The Trustee(s) may at any time, prior to the

death of the Beneficiary, by an instrument in writing (1) confer upon the Beneficiary a
power exercisable only by Will to appoint all or part of the trust to the creditors of the
Beneficiary’s estate (other than any taxing authority), and the instrument conferring
power may require consent of the Trustee (other than any Interested Trustee) (2) revoke
any such instrument previously executed, with or without executing a replacement
instrument and/or (3) irrevocably relinquish the powers conferred under (1) and/or (2).
Without limiting the Trustee(s)’s discretion, the Trustee(s) may use the authority
conferred by this paragraph to subject the trust property to estate tax instead of the

generation-skipping transfer tax when it appears that it may reduce overall taxes to do so.
The Beneficiary’s power conferred by this paragraph shall not be exercisable in any
manner so as to postpone the vesting of any estate or interest in the appointed property or
to suspend the absolute ownership or power of alienation of the appointed property for a
period ascertainable without regard to the date of the Grantor’s death, and the validity of
any exercise shall be measured with respect to that date. Notwithstanding any other
provision of this paragraph to the contrary, if the Trustee is an “Interested Trustee” as
defined elsewhere in this Trust instrument, such a Trustee may exercise the authority
conferred by this paragraph to the creditors of his or her own estate only if such an
exercise of power is approved by a majority of the number of the Beneficiaries to whom
the current trust income may or must then be distributed.
D.

Maximum Duration for Trusts. Any trust under this Article still in

existence upon the expiration of the Maximum Duration for Trusts as defined elsewhere
in this Trust shall thereupon terminate and the remaining trust property shall be
distributed to the Beneficiary of the trust.
ARTICLE VII
TAKERS OF LAST RESORT
The Trustee(s) shall distribute any property that is not otherwise disposed of under
this Trust to the persons who would have inherited the personal estate of Grantor’s
granddaughter, Kathryn Anne Viar Stevens, and in the shares they would have inherited
the same, had Kathryn Anne Viar Stevens died a resident of the state of Missouri and
without a valid Will, on the date on which expires the interest of the last Beneficiary of

the property under this Trust.
ARTICLE VIII
ELECTION AGAINST THE RULE AGAINST PERPETUITIES
Pursuant to Section 456.025 of the Revised Statutes of Missouri, the rule against
perpetuities shall not apply to any and all trusts created by or held under this Trust and
any interest created by or held under this Trust or by a power of appointment created
pursuant to this Trust. Notwithstanding any other provision of this Trust, the Trustee(s)
shall have the power to sell, lease, or mortgage property for any period of time beyond
the rule against perpetuities.
ARTICLE IX
SPENDTHRIFT PROVISION
This Trust and any trust held or created under this Trust and any trust created by
the exercise of a power of appointment conferred by this Trust shall be a Spendthrift
Trust to the maximum extent permitted by law. The right of any Beneficiary to receive
the income from any of the trusts created by this instrument shall be free from the
interference or control of his or her creditors, and shall not be anticipated by assignment,
nor in any event applicable to the payment of his or her debts nor subject to a
Beneficiary’s liabilities or creditors claims, assignment or anticipation. If such
Beneficiary shall alienate or attempt to alienate such income, or if, by reason of
bankruptcy, insolvency, or any other means, said income could no longer be personally
enjoyed by such Beneficiary, but would become vested in or payable to some other
person, then the Trustee(s), their survivors or successors, are to regard the best interest of

such Beneficiary, and in their discretion, exercised freely and advisedly, either refrain
from paying such income to such Beneficiary either in whole or in part, or apply it to the
maintenance and support of such Beneficiary, or pay the whole or part of it to one or
more members of such Beneficiary’s family, or accumulate it in whole or in part. This
direction is intended to enable the Trustee(s) to give the Beneficiary the maximum
possible benefit and enjoyment of all the trust income and principal to which the
Beneficiary is entitled.
ARTICLE X
EXERCISE OF POWERS CREATED HEREUNDER
A.

Form of Appointment. A power of appointment conferred hereunder upon

a person in his or her individual capacity (a “Non-Fiduciary Power”) may be exercised in
favor of one or more persons to or for whom the power may be exercised, in any
proportions, in any lawful estates and interests, whether absolute or in further trust. Such
Non-Fiduciary Power may be exercised to create further Non-Fiduciary Powers which
may be made exercisable in the same or a different manner. A limited power of
appointment may be exercised to confer a limited or general power, including a presently
exercisable limited or general power.
B.

Involuntary Exercise of Power. Except as otherwise provided by law, no

power of appointment shall be subject to involuntary exercise, and no interest of any
Beneficiary shall be subject to anticipation, to claims for alimony or support, to voluntary
transfer without the written consent of the Trustee(s), or to involuntary transfer in any
event.

C.

Testamentary Power. Any trust principal or net income as to which a

power of appointment is exercised shall be distributed to the appointee or appointees
upon such conditions and estates, in such manner (in trust or otherwise), with such
powers, in such amounts or proportions, and at such time or times (but not beyond the
period permitted by any applicable rule of law relating to perpetuities) as the holder of
the power may specify in the instrument exercising the power. In determining whether a
testamentary power of appointment has been exercised, the Trustee(s) may rely on a will
admitted to probate in any jurisdiction as the will of the holder of the power or may
assume the holder left no will in the absence of actual knowledge of one within three
months after the holder's death.
D.

Trustees Under Appointment. The Trustee under an appointment in

further trust may be any person not prohibited from serving as Trustee under this Trust
and may be given fiduciary powers (including discretionary powers over distributions),
exercisable however, only in favor of permissible objects of the exercised power.
E.

Trustees Can Create Trusts. The discretionary power of the Trustee(s)

(excluding, however, any Interested Trustee) to distribute principal from the
Beneficiaries’ Separate Trusts may be exercised in the same ways as a Non-Fiduciary
Power under this Article, except that this shall not authorize the Trustee(s) to restrict or
curtail any Beneficiary’s interest in any mandatory payments (such as all or a fraction of
the trust income) by an exercise that would not be authorized without this paragraph. If a
power held in a fiduciary capacity is exercised to create another power (whether the
power created is conferred in a fiduciary or individual capacity), then the power created

shall not be exercisable in any manner which may postpone the vesting of any estate or
interest in the appointed property or suspend the absolute ownership or power of
alienation of the appointed property for a period ascertainable without regard to the date
of the Grantor’s death, except that the power created (the “second power”) may be
exercisable to postpone the vesting of an estate or interest in the appointed property
without regard to the date of this Trust if the creation of the second power establishes the
date upon which any applicable rule against perpetuities with respect to such second
power is deemed to commence.
ARTICLE XI
PAYMENT OF TAXES
A.

All Apportioned Except Preresiduary Gifts. All estate, inheritance,

legacy, succession, generation-skipping or other wealth transfer taxes (other than any
additional estate tax imposed by Code Secs. 2031(c)(5)(c), 2032A(c) or 2057(f), any
generation-skipping transfer tax on any generation-skipping transfer other than a direct
skip or any comparable tax imposed by any other taxing authority) that result or arise
from the Grantor’s death and that are imposed by any domestic or foreign taxing
authority as a result of the Grantor’s death, but only to the extent imposed upon property
passing under the Grantor’s Will or this Trust, together with interest and penalties on
those taxes, shall be charged against and paid without apportionment out of the Grantor’s
Residuary Trust Fund as an administration expense. Such taxes on property not passing
under this Trust or the Grantor’s Will shall be apportioned to and paid from such property
by those succeeding to such property, taking into account the provisions of any

instrument governing such property, the provisions of the Internal Revenue Code and any
provisions of other applicable law apportioning such taxes. The Grantor acknowledges
that the actual burden of death tax may be borne, in whole or in part, by the Estate Tax
Exemption Gift by reason of the formula by which the size of that gift is determined.
B.

Modifications. However, the following clarifications and/or modifications

of the general rules set forth in the preceding paragraph shall apply:
1.

All taxes generated by the Grantor’s Residuary Trust Fund shall be

apportioned within the Grantor’s Residuary Trust Fund to the share or shares generating
the tax, but shall not be apportioned between current and future interests, such as a life
estate and remainder, even if one and not the other is taxable.
2.

To the extent any interest in properties pass to a trust that could

qualify for the Federal estate tax marital deduction by an election by the Grantor’s
Executor under Code Sec. 2056(b)(7) and are not allowed as a Federal estate tax marital
deduction, taxes shall be borne by those interests in properties not allowed as a Federal
estate tax marital deduction to the extent the taxes thereon exceed what those taxes would
have been if the value of those interests in properties for Federal estate tax purposes had
been allowed as a Federal estate tax marital deduction.
3.

Any generation-skipping transfer tax (other than a tax on a direct

skip of property passing as part of the Grantor’s Residuary Trust Fund and disposed of
under this Trust prior to the disposition of the Grantor’s Residuary Trust Fund) shall be
charged to the property constituting the transfer in the manner provided by Code Sec.
2603(b).

C.

Specific Reference to Code Sections. The Grantor is deemed hereby to

have made specific reference to Code Secs. 2207B (concerning tax on property included
under Code Sec. 2036) and 2603(b) (concerning the generation-skipping transfer tax
under Chapter 13 of the Code) and to corresponding provisions of state law, and to have
directed that they shall apply to the extent that they are consistent with the above and
shall not apply to the extent they are inconsistent with the above.
D.

Apportionment Prevails Over Abatement. If payment of taxes from the

Grantor’s Residuary Trust Fund in accordance with the foregoing exhausts the share or
shares of the Grantor’s Residuary Trust Fund that generate the tax, the balance of tax due
shall be apportioned in accordance with the rules of tax apportionment rather than the
rules of tax abatement.
ARTICLE XII
OUTRIGHT TRANSFERS IF TRUST ALREADY TERMINATED
Where property is directed under this Trust to be held in trust and the time for
termination of such trust has been reached, then the property shall not pass in trust but
rather shall pass as the remainder of such trust is directed to be transferred at the time for
termination of such trust.
ARTICLE XIII
TRUSTEES
A.

Trustee Appointment.

1.

A Trustee who is a party to this Trust shall serve as Trustee of each trust

under this Trust except where this Article or some other provision of this Trust

specifically provides otherwise.
2.

Grantor’s children, Thomas J. Stevens, II and Martha Anne Stevens, shall

be the co-Trustees of this Trust and of all trusts created and/or held under this Trust.
B.

Successor Trustee.

If any of the above-named Co-Trustees cease to qualify or refuse or cease to act as
Trustee, Grantor’s granddaughter, Kathryn Anne Viar Stevens, shall serve as successor
co-Trustee of this Trust and of all trusts created and/or held under this Trust. In the event
that all other Trustee(s) or co-Trustee(s) shall cease to qualify or refuse or cease to act as
Trustee, Grantor’s granddaughter, Kathryn Anne Viar Stevens, shall serve as sole
successor Trustee.
C.

General Provisions Regarding Trustee.

1.

Except as may be expressly provided elsewhere in this Trust, each Trustee

shall be entitled to serve based on the following rules:
(a).

First, each Trustee who is a party to this Trust shall be entitled to

(b).

Second, any successor Trustee named in this Trust shall be entitled

serve.

to serve.
(c).

Third, in the event that there is only one-sole Trustee of a trust

created or held under this Trust, and that Trustee is a Beneficiary of the trust, the
Trustee may appoint, but shall not be required to appoint, a Co-Trustee as
provided herein. A Beneficiary’s interest may not be merged or converted into a
legal life estate or estate for years because the Beneficiary is the sole Trustee, but

if this would still happen under applicable law, then a Co-Trustee shall be
appointed in preference to such merger or conversion.
2.

Separate Trusts hereunder may have different Trustees pursuant to these

provisions.
3.

The Trustees’ exercise or non-exercise of powers and discretions in good

faith shall be conclusive on all persons. No person paying money or delivering property
to any Trustee hereunder shall be required or privileged to see to its application. The
certificate of the Trustee that the Trustee is acting in compliance with this instrument
shall fully protect all persons dealing with a Trustee.
D.

Additional Provisions Regarding Change in Fiduciaries.

1.

Any Trustee may resign at any time without court approval and whether or

not a successor has been appointed.
2.

A majority in number of the Beneficiaries to whom the current trust income

may or must then be distributed may by written instrument remove any Trustee of any
trust held or administered pursuant to this Trust. If any person so entitled to act under this
subparagraph is then under legal disability, the instrument of removal may be signed by
the lawful guardian of such person on his or her behalf.
3.

If (1) the office of Trustee of a trust is vacant and no successor takes office

pursuant to any other provision of this Trust, or; (2) if any successor Trustee appointed
ceases to act as Trustee hereunder for any reason, or (3) the person or persons indicated
in subparagraph 2 of this paragraph shall, by written instrument remove a Trustee; the
person or persons indicated in subparagraph 6 of this paragraph “D” shall, by written

instrument, appoint any person, or any bank or trust company, within or outside the State
of Missouri, as successor Trustee or co-Trustee. In the event that there are at any time
only two co-Trustees of any Trust held or created under this Trust, the person or persons
indicated in subparagraph 6 of this paragraph “D” may, but shall not be required to,
appoint any person, or any bank or trust company, within or outside the State of Missouri,
as a third co-Trustee.
4.

The person or persons indicated in subparagraph 6 of this paragraph may at

any time, by written instrument, approve the accounts of the Trustee with the same effect
as if the accounts had been approved by a court having jurisdiction of the subject matter
and of all necessary parties.
5.

If any corporate Trustee designated to act or at any time acting hereunder is

merged with or transfers substantially all of its assets to another corporation, or is in any
other manner reorganized or reincorporated, the resulting or transferee corporation shall
become Trustee in place of its corporate predecessor.
6.

A Trustee, co-Trustee or successor Trustee may be appointed pursuant to

subparagraph 3 of this paragraph “D” and the accounts of the Trustee may be approved
by a majority in number of the Beneficiaries to whom the current trust income may or
must then be distributed. If any person so entitled to act is then under legal disability, the
instrument of appointment or approval may be signed by the lawful guardian of such
person on his or her behalf.
7.

The incumbent Trustee(s) shall have all of the title, powers, and discretion

granted to the original Trustee(s), without court order or act of transfer. No successor

Trustee shall be personally liable for any act or failure to act of a predecessor Trustee.
With the approval of the person or persons indicated in subparagraph 6 of this paragraph
who may approve the accounts of the Trustee(s), successor Trustee(s) may accept the
account furnished, if any, and the property delivered by or for predecessor Trustee(s)
without liability for so doing, and such acceptance shall be a full and complete discharge
to the predecessor Trustee(s).
E.

Accountings and Other Procedures.

1.

All trusts created or held under this Trust shall be subject to independent

administration with as little court supervision as the law allows. The Trustee(s) shall not
be required to render to any court annual or other periodic accounts or any inventory,
appraisal or other returns or reports except as required by applicable state law. The
Trustee(s) shall take such action for the settlement or approval of accounts at such times
and before such courts or without court proceedings as the Trustee(s) shall determine.
The Trustee(s) shall pay the costs and expenses of any such action or proceeding,
including (but not limited to) the compensation and expenses of attorneys and guardians
out of the property of the trust. The Trustee(s) shall not be required to register any trust
hereunder.
2.

In any proceeding relating to a trust hereunder, service upon any person

under a legal disability need not be made when another person not under a disability is a
party to the proceeding and has the same interest as the person under the disability. The
person under the disability shall nevertheless be bound by the results of the proceeding.
The same rule shall apply to non-judicial settlements, releases, exonerations and

indemnities.
F.

Waiver of Bond. No Trustee shall be required to give bond or other

security in any jurisdiction and, if despite this exoneration a bond is nevertheless
required, no sureties shall be required.
G.

Additional General Provisions Regarding Fiduciaries.

1.

“Interested Trustee” means for any trust a Trustee who is (i) a transferor of

property to the trust, including a person whose qualified disclaimer resulted in property
passing to the trust; or (ii) a person who is, or in the future may be, eligible to receive
income or principal pursuant to the terms of the trust. A Trustee described in (i) is an
Interested Trustee only with respect to the transferred property (including income and
gain on, and reinvestment of, such property). A person is described in (ii) even if he or
she has a remote contingent remainder interest, but is not described in (ii) if the person’s
only interest is as a potential appointee under a Non-Fiduciary Power of Appointment
held by another person, the exercise of which will take effect only in the future, such as a
testamentary power held by a living person. A Trustee who is not an Interested Trustee is
a “Disinterested Trustee.”
2.

Under this Trust, if two or more separate trusts with the same Beneficiaries

and same terms are created, either by direction or pursuant to the exercise of discretion,
the Grantor intends that the separate trusts may, but need not, have the same investments
and follow the same pattern of distributions. The Trustee(s)’s powers shall be exercisable
separately with respect to each trust.
3.

Except to the extent, if any, specifically provided otherwise in this Trust,

references to the Trustee(s) shall, in their application to a trust hereunder, refer to all
those from time to time acting as Trustees of that trust and, if two or more Trustees are
eligible to act on a given matter, they shall act by majority. In the exercise of discretion
over distributions limited by an ascertainable standard while a different set of Trustees
may participate in distributions “for any purpose,” and if the two sets of Trustees (each
acting by its own majority) want to distribute the same item of income or principal to
different recipients, the distribution desired by the set of Trustees participating in
distributions “for any purpose” shall prevail.
4.

Individual Trustees may receive compensation in accordance with the law

of the State of Missouri in effect at the time of payment, unless the Trustee waives
compensation, provided that the Grantor’s descendants shall serve without compensation.
A corporate Trustee shall be compensated by agreement with the individual Trustee, or in
the absence of such agreement, in accordance with its fee schedule as in effect at the time
of payment. A corporate Trustee may charge additional fees for services it provides to a
trust hereunder that are not comprised within its duties as Trustee; for example, a fee
charged by a mutual fund it administers in which a Trustee hereunder invests, a fee for
providing an appraisal or a fee for providing corporate finance or investment banking
services. The Grantor also recognizes that a corporate Trustee may charge separately for
some services comprised within its duties as Trustee; for example, a separate fee for
investing cash balances or preparing tax returns. Such separate charges shall not be
treated as improper or excessive merely because they are added on to a basic fee in
calculating total compensation for service as Trustee.

5.

No Trustee shall be liable to anyone for anything done or not done by any

other Trustee or by any Beneficiary.
6.

In addition to their duties to manage the Farm Property prudently to

produce income, as provided in Article IV hereof, each Trustee shall have the duty to
invest the trust assets in dividend-producing, interest-producing, or other incomeproducing investments, with preference given to the yearly generation of income over the
preservation or increase of the corpus of the Trust, to the fullest prudent extent.
7.

The fact that a Trustee is active in the investment business shall not be

deemed a conflict of interest, and purchases and sales of investments may be made
through a corporate Trustee or through any firm of which a corporate or individual
Trustee is a partner, member, shareholder, proprietor, associate, employee, owner,
subsidiary, affiliate or the like, and property of a trust hereunder may be invested in
individual securities, mutual funds, partnerships, private placements or other forms of
investment promoted, underwritten, managed or advised by a Trustee or such a firm.
8.

The Trustee(s) may employ and rely upon advice given by investment

counsel, delegate discretionary investment authority over investments to investment
counsel and pay investment counsel reasonable compensation in addition to fees
otherwise payable to the Trustee(s) notwithstanding any rule of law otherwise prohibiting
such dual compensation.
9.

The Trustee(s) may, but need not, favor retention of assets originally owned

by the Grantor.
10.

The Trustee(s) shall not be under any duty to diversify investments

regardless of any rule of law requiring diversification, and any such duty is hereby
waived.
11.

The fact that a Trustee (or a firm of which a Trustee is a member or with

which a Trustee is otherwise affiliated) renders legal or other professional services to a
trust hereunder shall not be deemed a conflict of interest, and the Trustee may pay fees
for such services to such Trustee or firm without prior approval of any court or any
Beneficiary and whether or not there is a Co-Trustee to approve such payment. An
attorney or other Trustee who also renders professional services shall receive full
compensation for both services as Trustee and the professional services rendered, except
as specifically limited by law.
12.

If the Trustee(s) have discretion concerning distributions of income or

principal of any trust created or held under this Trust, that discretion shall be absolute and
uncontrolled, and subject to correction by a court only if the Trustee(s) should act utterly
without reason, in bad faith or in violation of specific provisions of this Trust. If the
Grantor has set forth general guidelines (as opposed to directions or dollar limits) for the
Trustee(s) in making distributions, those guidelines shall be merely suggestive and shall
not create an enforceable standard whereby a distribution could be criticized or
compelled. It is the Grantor’s strong belief that the Trustee(s) will be in the best position
to interpret and carry out the intentions expressed herein under changing circumstances.
This paragraph shall not, however, apply to any standards framed in terms of health,
education, maintenance and support (including support in an accustomed manner of
living) as those words shall create an ascertainable standard for Federal tax purposes

when applied to a Trustee’s power or a power held individually, although even in those
cases the holder of the power shall have as much discretion as is consistent therewith. An
Interested Trustee who is otherwise authorized to make distributions to himself or herself
subject to an ascertainable standard may exercise such discretion, notwithstanding any
contrary rule of law, unless such authorization would cause the trust property to be
subject to the claims of the creditors of such Interested Trustee.
13.

Notwithstanding any other provisions of this Trust, each Trustee is

prohibited from making, voting on or otherwise participating in any discretionary
distribution of income or principal from a trust that would discharge or substitute for a
legal obligation of that Trustee, including the obligation to support a Beneficiary of the
trust. Further, notwithstanding any other provision of this Trust, any Trustee authorized
to distribute income or principal for his or her own heath, education, maintenance and
support, in his or her accustomed manner of living, shall consider all resources
reasonably available to him or her. Subject to that, in exercising discretion over
distributions, the Trustee may consider, or may disregard, other resources available to
any Beneficiary.
14.

Unless the Grantor has specifically provided otherwise, and subject to any

ascertainable standard governing its exercise, the Trustee(s)’s discretionary power to
distribute income or principal includes the power to distribute all of such income and/or
principal to one or more members of a class to the exclusion of others whether or not the
terms of the trust specifically mention that possibility.
15.

The Trustee(s) may irrevocably release one or more powers held by the

Trustee(s) while retaining other powers.
16.

Any Trustee may delegate to a Co-Trustee any power held by the

delegating Trustee, but only if the co-Trustee is authorized to exercise the power
delegated. A delegation may be revocable, but while it is in effect the delegating Trustee
shall have no responsibility concerning the exercise of the delegated power.
17.

If at any time the Trustee(s) shall determine that the trust is of a size that is

no longer economical to administer, the Trustee(s), without further responsibility, may
(but need not) distribute the trust to the Beneficiaries for whom the trust is named.
18.

Unless otherwise provided in this instrument, any authority granted to the

Trustee(s) in this Trust or by law, whether stated as an authority, right, power or
otherwise, may be exercised by the Trustee(s) in the Trustee(s)’s discretion.
ARTICLE XIV
GOVERNING LAW AND TRUSTEE POWERS
A.

The interpretation and operation of this Trust and any trust held or created

under this Trust and any trust created by the exercise of a power of appointment
conferred by this Trust shall be governed by the laws of the State of Missouri. The
Trustee(s) may, without prior authority from any court, exercise all powers conferred by
this Trust or by common law or by any fiduciary powers act or other statute of the State
of Missouri or any other jurisdiction whose law applies to the trust. The Trustee(s) shall
have sole and absolute discretion in exercising these powers. Except as specifically
limited by this Trust, these powers shall extend to all property held by the Trustee(s) until
actual distribution of the property. The powers of the Trustee(s) shall include the

following:
1.

To retain for any period of time without limitation, and without liability for

loss or depreciation in value, any property transferred to the Trustee(s), including
partnership interests (whether general, special, or limited), even though the Trustee(s)
could not properly purchase the property as a trust investment and though its retention
might violate principles of investment diversification;
2.

To sell at public or private sale wholly or partly for cash or on credit,

contract to sell, grant or exercise options to buy, convey, transfer, exchange, or lease (for
a term within or extending beyond the term of the trust) any real or personal property of
the trust, and to partition, dedicate, grant easements in or over, subdivide, improve, and
remodel, repair, or make improvements on any real property of the trust, and in general to
deal otherwise with the trust property in such manner, for such prices, and on such terms
and conditions as any individual might do as outright owner of the property;
3.

To borrow money at interest rates then prevailing from any individual,

bank, or other source, irrespective of whether any such individual or bank is then acting
as Trustee, and to create security interests in the trust property by mortgage, pledge or
otherwise;
4.

To invest in bonds, common or preferred stocks, notes, real estate

mortgages, common trust funds, shares of regulated investment companies, currencies,
partnership interests (whether general, special, or limited), or other securities or property,
real or personal, domestic or foreign, including partial interests, such as life estate, term
or remainder interests, without being limited by any statute or rule of law governing

investments by Trustees;
5.

To make allocations, divisions, and distributions of trust property in cash or

in kind, or partly in each; to allocate different kinds or disproportionate shares of property
or undivided interests in property among the Beneficiaries or separate trusts, without
liability for, or obligation to make compensating adjustments by reason of,
disproportionate allocations of unrealized gain for federal income tax purposes; and to
determine the value of any property so allocated, divided, or distributed;
6.

To exercise in person or by general or limited proxy all voting and other

rights, powers, and privileges and to take all steps to realize all benefits with respect to
stocks or other securities; and to enter into or oppose, alone or with others, voting trusts,
mergers, consolidations, foreclosures, liquidations, reorganizations, or other changes in
the financial structure of any corporation;
7.

To cause any security or other property to be held without disclosure of any

fiduciary relationship, in the name of the Trustee(s), in the name of a nominee, or in
unregistered form;
8.

To pay all expenses incurred in the administration of the trust, including

reasonable compensation to any Trustee, and to employ or appoint and pay reasonable
compensation to accountants, depositaries, investment counsel, attorneys, attorneys-infact, and agents (with or without discretionary powers);
9.

To deal with the fiduciary or fiduciaries of any other trust or estate, even

though the Trustee(s) are also the fiduciary or one of the fiduciaries of the other trust or
estate;

10.

To compromise or abandon any claim in favor of or against the trust;

11.

To lend money to the personal representative of the Grantor’s estate and to

purchase property from the personal representative of either estate and retain it for any
period of time without limitation, and without liability for loss or depreciation in value,
notwithstanding any risk, unproductivity, or lack of diversification;
12.

To commingle for investment purposes the property of the trust with the

property of any other trust held hereunder, allocating to each trust an undivided interest in
the commingled property;
13.

To receive any property, real or personal, to be added to the trust, if the

Trustee(s) consent in writing, by lifetime or testamentary transfer or otherwise;
14.

To execute instruments of any kind, including instruments containing

covenants and warranties binding upon and creating a charge against the trust property
and containing provisions excluding personal liability; and
15.

To perform all other acts necessary for the proper management, investment,

and distribution of the trust property.
B.

The powers granted in this Article shall be in addition to those granted by

law and may be exercised even after termination of all trusts hereunder until actual
distribution of all trust principal.
ARTICLE XV
DEFINITIONS AND MISCELLANEOUS PROVISIONS
The following definitions and miscellaneous provisions shall apply under this
Trust.

A.

Children and Descendants.

References

to

“children”

and

“descendants” shall include children and descendants whenever and wherever born.
B.

Minor and Adult. Whether an individual is a minor or an adult shall be

determined under the laws of the individual’s domicile at the time in question, except in
cases when this Trust has specifically defined “Minor” to mean a person under twentyone (21) years of age.
C.

Code and Regulations. References to the “Internal Revenue Code” or

“Code” or to provisions thereof are to the Internal Revenue Code of 1986, as amended at
the time in question. References to the “Regulations” and “Regs.” are to the Regulations
under the Code. If, by the time in question, a particular provision of the Code has been
renumbered, or the Code has been superseded by a subsequent Federal tax law, the
reference shall be deemed to be to the renumbered provision or the corresponding
provision of the subsequent law, unless to do so would clearly be contrary to the
Grantor’s intent as expressed in this Trust. A similar rule shall apply to references to the
Regulations.
D.

Executor. Whenever herein a reference is made to the Grantor’s or another

person’s Executor, such reference shall be to those serving as the fiduciary of that
person’s estate, whether or not their title is Executor under applicable state law.
E.

GST Exempt and GST Non-Exempt Trusts. As used hereunder, any trust

that is wholly exempt from Federal generation skipping tax shall be known as a “GST
Exempt Trust” and any trust that is not wholly exempt from such tax shall be known as a
“GST Non-Exempt Trust.”

F.

Gross Estate.

“Gross Estate” means the Grantor’s gross estate as

determined for Federal estate tax purposes (or for state death tax purposes when
relevant).
ARTICLE XVI
SAVINGS CLAUSE
Should any of the provisions or directions of this Trust fail or be held to be
ineffectual or invalid for any reason, it is deemed to have been the Grantor’s desire that
no other portion or provision of this Trust be invalidated, impaired or affected thereby,
but that this Trust be construed as if such invalid provision or direction had not been
contained therein.
ARTICLE XVII
CAPTIONS
The captions used in this Trust are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this Trust or the intent
of any provision therein.