Frahm v. Rokus

 

 

 

 

 

 

 

 

 

 

Filed 9/5/13  Frahm v. Rokus CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
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DEBORAH D. FRAHM et al., as Trustees, etc.,               Plaintiffs and Appellants,               v.   TARI F. ROKUS, as Trustee, etc.,               Defendant and Respondent.

B244354         (Los Angeles County       Super. Ct. No. GP015757)

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Stanley Blumenfeld, Judge.  Affirmed.

            Oldman
Cooley Sallus Birnberg & Coleman, Marshal A. Oldman, Marc L. Sallus and
Justin B. Gold for Plaintiffs and Appellants.

            Sacks,
Glazier, Franklin & Lodise, Margaret Lodise, Benazeer Roshan and Leila B.
Azari for Defendant and Respondent.

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I.  INTRODUCTION

 

            Defendants,
Deborah D. Frahm and Sherryl L. Lilley, appeal from the July 31, 2012 probate court order which
distributed assets of the Frahm Family Trust (the trust).  The probate court directed the trustees to
allocate a $3.2 million payment for promissory notes to plaintiff, Tari F.
Rokus.  In 1993, an iteration of the
family business, Reid Plastics, Inc., issued href="http://www.mcmillanlaw.com/">promissory notes to the settlors, Carl
and Shirley Frahm (the Frahms), in exchange for a loan.  In 1997, the Frahms received $3.2 million in
payment to extinguish the promissory notes. 
Defendants contend the probate court erred by allocating the $3.2
million to plaintiff rather than having the assets split three ways under the
trust’s residuary clause.  Plaintiff
contends the probate court order was proper because the Frahms intended she
receive the proceeds from the Reid Plastics, Inc. sale including the promissory
note payment.  We affirm the July 31, 2012 order.   

 

II. FACTUAL
BACKGROUND

 

A.  Reid Valve Company

 

            Ms. Frahm’s
father established Reid Valve Company in 1961. 
Ms. Frahm inherited Reid Valve Company and the Frahms took over the
business in 1970.  Plaintiff worked at
Reid Valve Company in the 1970s during the summer.  In July of 1976, she began working full-time,
performing accounting, payroll and filing tasks in the company office.  From 1976 to 1997, plaintiff held different
jobs with Reid Valve Company, including: 
accounts receivable specialist; vice-president; executive vice-present;
and general counsel.  In February 1979,
plaintiff’s husband, Bruno Rokus, left his position as an investment banker to
work at Reid Valve Company.   

            From 1979
to 1988, plaintiff and Mr. Rokus (“the Rokuses”) assumed greater responsibility
for the company as the Frahms’ involvement declined.  Reid Valve Company became successful, posting
annual sales of approximately $20 million in 1988.  By 1988, the Rokuses owned 250,000 shares of
Reid Valve Company and the Frahms owned 1 million shares.   

            On January 1, 1989, the Frahms and the
Rokuses sold Reid Valve Company to Kindred Alliance, Inc. for approximately $8.5
million.  The Frahms and Rokuses received
$4,225,000 for their stock.  In addition,
they received non-compete payments valued at $3,406,400 for the Frahms and
$851,200 for the Rokuses.   

            At the time
of the sale, plaintiff was executive vice-president and general counsel.  Mr. Rokus was general manager.  After the sale to Kindred Alliance, Inc., Mr.
Rokus remained as a board member and company president.  Plaintiff worked for the “business” for
approximately one year before going to the law firm Jones Day as a contract
attorney.  Plaintiff continued to act as
a consultant to the company overseeing human resources, risk management,
trademarks and patents.   

            Approximately
two months after the 1989 sale, the company changed its name to Reid Plastics,
Inc.  By 1991, Reid Plastics, Inc.
experienced financial problems.  In 1992,
the owners unsuccessfully attempted to sell Reid Plastics, Inc. to a third
party.  By 1993, Reid Plastics, Inc.
continued its financial decline and the principal new owner, Lou Kwiker,
contemplated filing a bankruptcy petition.   


            In 1993,
the Rokuses repurchased Reid Plastics, Inc. from Mr. Kwiker.  As part of the repurchase, the Rokuses gave
the Frahms a 20 percent equity interest in Reid Plastics, Inc.  The Rokuses retained 80 percent equity
interest for themselves.  In exchange,
the Frahms agreed to loan $3.2 million to Reid Plastics, Inc. by returning
$2,502,400 which they received for their non-compete agreements in 1989.  The Frahms also deferred $904,000 in
non-compete payments which they were owed. 
Reid Plastics, Inc. issued promissory notes to the Frahms worth $3.2
million in exchange for the loan.  The
proceeds of these promissory notes is the principal issue on appeal.

            By 1997,
the Rokuses had succeeded in returning Reid Plastics, Inc. to sound financial
footing.  Reid Plastics, Inc. became a
profitable company with $150 to $170 million in annual sales.  In 1997, the Rokuses decided to find a buyer
for Reid Plastics, Inc.  A company named
Vestar Capital Partners agreed to purchase a controlling interest in Reid
Plastics, Inc.  Vestar Capital Partners
created a holding company entitled Vestar Reid LLC which purchased the Reid
Plastics, Inc. stock.  The stock was
placed in a holding company named Reid Plastics Holdings, Inc. 

            Under the
1997 transaction, Vestar Reid LLC paid almost $60 million to purchase the
outstanding shares in Reid Plastics Holdings, Inc.  This made Vestar Reid LLC the majority owner
of Reid Plastics, Inc.  Mr. Frahm
died prior to the close of sale.  Ms. Frahm
received approximately $5.8 million, about $2.6 million for her stock and $3.2
million for the promissory notes.  On
October 15, 1997, these amounts were deposited into the Frahms’ “Active Assets
Account” with Dean Witter Reynolds, Inc. 
The deposit of the $3.2 million is directly pertinent to the ademption
issue.

 

B.  The Frahm Family Trust

 

            The Frahms
established the trust on September 25, 1979. 
As noted, Mr. Frahm died on October 1, 1997.  Ms. Frahm died on December 28, 2010.  Plaintiff and defendants are the:  Frahms’ three daughters; trust co-trustees;
and trust beneficiaries.   

            The trust
has gone through several amendments and restatements.  The last change occurred on June 21, 1996,
when the Frahms executed the “First Amendment to the Second Restatement of
Frahm Family Trust” (“1996 Amendment”).   


            The
relevant portion of the trust concerns article VI, section C, part 3,
subparagraphs A and B.  Subparagraph A
states, “(A) Upon the death of the Surviving Spouse, the Trustee shall divide
the trust estate into equal shares as follows: 
one share for each of the Settlors’ then living
children . . . .” 
Subparagraph B provides in part: 
“Notwithstanding the provisions of subparagraph (A), the share set aside
for the Settlors’ daughter, TARI F. ROKUS, or her issue, shall include all of
the trust’s interest in (a) the [Duncanville property] and (b) the stock of
Reid Plastics, Inc., or any successor thereto, together with any options to
acquire such stock and any promissory notes, debentures or other instruments of
indebtedness issued by Reid Plastics, Inc. 
If some, or all, of the stock of Reid Plastics, Inc., or any successor
thereto, has been sold or exchanged for other stock or property at the time of
the Surviving Spouse’s death, the Trustee shall, to the extent of the amount
sold, distribute to the trust set aside for the benefit of TARI F.
ROKUS . . . cash or other property in an amount equal to
the net sales price . . . including as part of the trust estate
any note received as payment for such stock as was sold.  To the extent that such stock was exchanged,
the Trustee shall distribute to the trust set aside for the benefit of TARI F.
ROKUS . . . the stock or other property received in such
exchange.  Partial or complete redemption
of stock by Reid Plastics, Inc. or any successor thereto shall not be
considered a sale or exchange.  Provided,
however, that if the value of the [Duncanville property] and the stock of Reid
Plastics, Inc. exceeds one-third of the trust estate, the trust set aside for
the benefit of TARI F. ROKUS shall be comprised of said properties and the
balance of the trust estate shall be divided between Settlors’ other children
or their descendants as provided in subparagraph (A) above.”  The significant change in the 1996 Amendment
was the addition of “any promissory notes, debentures or other instruments of
indebtedness issued by Reid Plastics, Inc.” to the trust.    

 

C.  The Trial

 

            On July 13,
2011, plaintiff filed a petition pursuant to Probate Code section 17200 for an order
determining distribution of trust corpus.href="#_ftn1" name="_ftnref1" title="">[1]  The trust estate was valued at approximately
$15 million, including two real estate parcels and other investments.  Plaintiff argues she was entitled to the net
proceeds from both the Kindred Alliance, Inc. and Vestar Capital Partners
sales.  As noted, on January 1, 1989,
Reid Valve Company was sold to Kindred Alliance, Inc.  And in 1997, Vestar Capital Partners
purchased a controlling interest in Reid Plastics, Inc.  Defendants argued the proceeds were to be
divided equally among the three daughters. 
During the week of April 2, 2012, a bench trial was held.  We will detail the controlling testimony
later in this opinion.

 

D.  The Probate Court’s Statement Of Decision

 

            On April
18, 2012, the probate court issued its “Findings of Fact and Conclusions of
Law.”  On April 30, 2012, defendants
filed a “Request for Statement of Decision.” 
On May 3, 2012, defendants filed objections to the probate court’s
factual findings and legal conclusions.   


            On May 9,
2012, the probate court ruled its factual findings and legal conclusions would
serve as a proposed Code of Civil Procedure section 632 statement of
decision.  The probate court provided
defendants with the opportunity to supplement their objections by May 18, 2012,
and plaintiff could respond by May 31, 2012. 
On May 18, 2012, defendants filed their amended objections and on May
31, 2012, plaintiff filed her response.   


            On July 31,
2012, the probate court issued its “Final Statement of Decision.”  The probate court ruled:  “The Frahms expressed their clear intent that
[plaintiff] receive their 20% interest in Reid Plastics, or any successor,
whether the Frahms kept the stock or sold it in the future.  They also carved out their interest in the
promissory notes issued by Reid Plastics. 
The purpose of the carve out of their entire interest in Reid Plastics
-- the stock and the notes -- was to recognize [the Rokuses’] contribution to
the business.  [¶]
 . . .  The remaining question is the amount to be allocated
to the carve out for [plaintiff].  The
proceeds for the sale of the Frahms’ 20% stock interest in Reid Plastics ($2.6
million) clearly fall within the scope of the carve out.  In the Amended Objections and Response to the
Amended Objections, the parties vigorously dispute whether the value of the
promissory notes issued by Reid Plastics ($3.2 million) is subject to the carve
out.  The Court finds that the Frahms
intended to include the value of the promissory notes in the carve out for
[plaintiff].  [¶]  By the time of the 1996 Amendment, the Frahms
knew that they had an asset worth $3.2 million in the form of outstanding
promissory notes issued by Reid Plastics. 
In the 1996 Amendment, the Frahms carved out for [plaintiff] not only
the stock of, but also the promissory notes issued by, Reid Plastics.  This provision therefore manifests a clear
intent to set aside for [plaintiff] this $3.2 million asset and is consistent
with the overall intent to give [plaintiff] what the Frahms believed she and
her husband had earned through their participation in the business.”  (Fn. omitted.)  

            Defendants
contended because the notes were paid in 1997 before Ms. Frahm’s death,
they reverted to the general trust estate as having been revoked when
sold.  The probate court rejected the
argument.  Based on the trust language
and extrinsic evidence, the probate court concluded the Frahms’ intent was to
provide plaintiff the value of the promissory notes.   

            On August
20, 2012, defendants filed a new trial motion, which the probate court denied
on September 28, 2012.  Defendants
subsequently appealed.

 

III.  DISCUSSION

 

A.  Overview

 

            Defendants
contend the trial court erred on the following grounds:  the plain language of the trust instrument
does not allocate payments for the promissory notes; there was no extrinsic
evidence to support plaintiff receiving the promissory note proceeds; and
plaintiff testified that she was not entitled to the payments on the promissory
notes which constituted a binding judicial admission.  In the alternative, defendants argue the
funds were revoked under the ademption doctrine.  We disagree and find plaintiff is entitled to
receive the promissory note payments.

 

B.  Standards Of Review

 

            Defendants
assert the appropriate standard of review
is de novo.  Our Supreme Court has
held:  “The interpretation of a will or
trust instrument presents a question of law unless interpretation turns on the
credibility of extrinsic evidence or a conflict therein.  [Citations.]” 
(Burch v. George (1994) 7
Cal.4th 246, 254; see Tunstall v. Wells
(2006) 144 Cal.App.4th 554, 561 [same]; § 21102, subd. (a) [“The intention of
the transferor as expressed in the instrument controls the legal effect of the
dispositions made in the instrument.”].) 
Our Supreme Court has explained: 
“Extrinsic evidence is ‘admissible to interpret the instrument, but not
to give it a meaning to which it is not reasonably susceptible’ [citations],
and it is the instrument itself that must be given effect.  [Citations.] 
It is therefore solely a judicial function to interpret a written
instrument unless the interpretation turns upon the credibility of extrinsic
evidence. . . .”  (>Parsons v. Bristol Development Co. (1965)
62 Cal.2d 861, 866; Gardenhire v.
Superior Court (2005) 127 Cal.App.4th 882, 888.) 

            The trust
language does not sufficiently fully explain the Frahms’ intent.  The trust provides for plaintiff to receive
“any promissory notes, debentures or other instruments of indebtedness issued”
by Reid Plastics, Inc.  It explains what
should happen if the Reid Plastics, Inc. stock is sold, exchanged, or
redeemed.  It limits plaintiff’s
allocation if the Duncanville property and Reid Plastics, Inc. stock should
exceed one-third of the trust estate. 
However, the trust instrument does not explain what should occur if the
promissory notes were extinguished.  This
uncertainty arose not from the plain language of the trust nor from a latent
ambiguity.  It occurred through a
subsequent action -- the payment of the promissory notes when Reid Plastics,
Inc. was sold to Vestar Capital Partners.

            Further, it
is unclear from the trust instrument whether the Frahms intended to revoke the
specific gift of the promissory notes, also known as ademption.  Our Supreme Court has held:  “‘“Ademption of a specific legacy is the
extinction or withdrawal of a legacy in consequence of some act of the testator
equivalent to its revocation, or clearly indicative of an intention to revoke.  The ademption is effected by the extinction
of the thing or fund bequeathed, or by a disposition of it subsequent to the
will which prevents its passing by the will, from which an intention that the
legacy should fail is presumed.”’ 
[Citations.]”  (>Estate of Mason (1965) 62 Cal.2d 213,
215; Brown v. Labow (2007) 157
Cal.App.4th 795, 807.)

            Thus, we
are required to examine extrinsic evidence to ascertain the Frahms’
intent.  Our Supreme Court has held:  “‘The court must determine the true meaning
of the instrument in the light of the evidence available.  It can neither exclude extrinsic evidence
relevant to that determination nor invoke such evidence to write a new or
different instrument.’  [Citations].”  (Estate
of Russell (1968) 69 Cal.2d 200, 210; see § 21102, subd. (c) [“Nothing in
this section limits the use of extrinsic evidence, to the extent otherwise
authorized by law, to determine the intention of the transferor.”]; >Ike v. Doolittle (1998) 61 Cal.App.4th
51, 73 [holding extrinsic evidence is admissible to prove a meaning to which the
trust instrument is reasonably susceptible].) 
Because the trust is silent concerning a change to the promissory notes,
we must examine extrinsic evidence, if any, to ascertain the Frahms’ intent.  We conduct a substantial evidence review of
conflicting extrinsic evidence.  (>Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881; Westfour Corp.
v. Cal. First Bank (1992) 3 Cal.App.4th 1554, 1558.)

 

C.  Findings Of Fact Concerning The Frahms’
Intent

 

            The probate
court found the Frahms intended for plaintiff to receive the value of the
promissory notes.  The probate court
relied on the testimony of Lynne Kambe, Gerry Kastner, and plaintiff.  We set forth their relevant testimony.

            Plaintiff
testified she had a conversation with Ms. Frahm concerning estate planning
in 1986 or 1987.  Plaintiff and
Ms. Frahm discussed the Frahms eventually leaving Reid Valve Company.  According to plaintiff, Ms. Frahm said
they would have a deal in which the Rokuses would pay the Frahms for their
stock in the company.   

            In 1988,
plaintiff discussed estate planning with the Frahms.  Plaintiff expressed concern to her parents
that they had decreased the value of the company by removing assets from it for
their personal benefit.  In response,
Ms. Frahm retrieved a copy of the trust and pointed to a provision,
stating to plaintiff, “Don’t worry about it because if anything happens to us,
everything from Reid will be yours.” 
Plaintiff stated that her parents explained “everything from Reid” meant
“whatever came from Reid,” so “it doesn’t really matter if we take things out
of the company.”   

            In 2007 or
2008, plaintiff had a conversation with Ms. Frahm about the estate.  Ms. Frahm had gone to Ms. Kambe to
review the trust.  Ms. Frahm wanted
the Rokuses to be taken care of. 
Ms. Frahm talked about the Duncanville property which had been
sold.  Ms. Frahm did not want to
exclude the property from the trust. 
Ms. Frahm wanted to keep the trust the way it was so that
everything from Reid Valve Company went to plaintiff.  At one point, plaintiff testified the Frahms
stated, “[I]f it weren’t for you and [Mr. Rokus], we would have lost
everything.”   

            Mr. Kastner
was the Frahms’ accountant.  Mr. Kastner
recalled the Frahms wanted plaintiff to have the Reid Valve Company stock or
receive the proceeds from its sale.   

            Ms. Kambe
is the attorney who drafted the restatement of the trust and the 1996 amendment
while employed at Jones Day.  In 1994,
Ms. Kambe had a meeting with the Frahms to make changes to the trust.  These changes became the 1996 Amendment.  Ms. Kambe stated one principal change
was to add provisions about notes and debentures.  The Frahms never told Ms. Kambe that the
1996 amendment was inaccurate or failed to express the intended distribution of
their estate upon their death.   

 

D.  Ademption Issue

 

            As noted,
an ademption of a legacy is its extinction or withdrawal which is coequivalent
of its revocation. Our Supreme Court has explained:  “A change in the form of property subject to
a specific testamentary gift will not effect an ademption in the absence of
proof that the testator intended that the gift fail.”  (Estate
of Mason, supra, 62 Cal.2d at p.
215; Estate of Austin (1980) 113
Cal.App.3d 167, 174.)  According to the
Court of Appeal for the Fifth Appellate District, “In determining whether the
change is in form only, California courts have lately tended to avoid strict
rules of ademption; rather they look to the inferred or probable intent of the
testator under the particular circumstances.” 
(Id. at p. 173; see >Estate of Zahn (1971) 16 Cal.App.3d 106,
113.)  In Estate of Mason, supra, 62 Cal.2d at page 216, our Supreme Court
ruled:  “[A] specific testamentary gift
is adeemed regardless of the testator’s intention when the specific property
has been disposed by the testator and
cannot be traced to other property in the estate [citations], or when the >testator has placed the proceeds of such
property in a fund bequeathed to another
[citation] . . . .” 
(Ibid.; Estate of Ehrenfels (1966) 241 Cal.App.2d 215, 227-228.)

            The probate
court ruled the Frahms intended for plaintiff to receive the value of the
promissory notes on the following grounds: 
at the time of the 1996 amendment, they were aware they possessed $3.2
million in promissory notes; the addition of the term “any promissory notes,
debentures or other instruments of indebtedness issued by Reid Plastics, Inc.”
demonstrated a clear intent to provide plaintiff the value of the notes; they
believed the Rokuses were vital to the success and growth of Reid Plastics, Inc.;
and the carve out gave the Rokuses what they deserved.  Substantial evidence supports the probate
court’s factual findings.  There was
testimony the Frahms wanted to reward the Rokuses for their efforts in making
Reid Plastics, Inc. successful.  This intent
was shown by including the promissory notes into plaintiff’s share of the
trust.  These factual findings support
the conclusion that the settlors did not intend ademption.

            Defendants
argue plaintiff failed to demonstrate tracing of the assets to the estate.  (See Estate
of Mason, supra, 62 Cal.2d at p.
216 [“[A] specific testamentary gift is adeemed regardless of the testator’s
intention when the specific property has been disposed by the testator and cannot be traced to other property in the
estate . . . .”]; Estate
of Ehrenfels, supra, 241
Cal.App.2d at p. 227-228.)    The probate
court could reasonably find that tracing of the assets to the estate was
demonstrated when the funds were placed in the Dean Witter Reynolds, Inc.
account.  The probate court did not err
in concluding the promissory notes were not subject to the ademption doctrine.

 

E.  Judicial Admission

 

            Defendants
argue plaintiff admitted that she did not seek recovery of the promissory note
proceeds and such constitutes a judicial admission.  Defendants rely on the following rule of
law:  “A judicial admission is a party’s
unequivocal concession of the truth of a matter, and removes the matter as an
issue in the case.  [Citations.]  This principle has particular force when the
admission hurts the conceder’s case.”  (>Gelfo v. Lockheed Martin Corp. (2006)
140 Cal. App.4th 34, 48; see Minish v.
Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456 [same].)

            Defendants
cite to one instance of plaintiff’s testimony. 
The probate court asked plaintiff, “What are you specifically
claiming . . . that you’re entitled to under the trust
agreement?”  Plaintiff responded, “It
would be the sale from 1989 from Reid and the sale of stock in 1997.”  The probate court inquired, “Are you claiming
anything else with respect to that [1997] sale?”  Plaintiff responded, “No.”  The probate court considered defendants’
judicial admission argument and was unpersuaded.  In its final statement of decision, the
probate court stated, “The Court disagrees with this reading of [plaintiff’s]
testimony, for it is divorced from [plaintiff’s] broader claim at trial that
she is entitled to the proceeds from the Vestar and Kindred sales--which, she contends, would include the $3.2
million in notes and then some.”  

            Substantial
evidence supports the probate court’s conclusion that plaintiff did not
unequivocally concede her lack of entitlement to the $3.2 million from the
payment of the promissory notes.  When
defendants’ counsel later asked what plaintiff’s claim was, the probate court
stated:  “Let me tell you what I’m going
to take her claim to be based upon her testimony.  That she’s entitled to receive anything
related to the sale of Reid Plastics . . . and that is
pursuant to a formula in the trust agreement. 
Anything aside from that . . . she’s not claiming
that she’s entitled to.  Am I
correct?”  Plaintiff responded, “You are
correct.”  When asked by defendants’
counsel whether she was claiming entitlement to the proceeds of Reid Valve
Company, plaintiff stated:  “Yes.  To me it’s the same company.”  Plaintiff later testified, “[T]he trust says
I’m entitled to the sale of Reid and the proceeds thereof.”  The $3.2 million from the promissory notes
was initially derived from the Frahms’ non-compete payments as part of the Reid
Valve Company sale to Kindred Alliance, Inc. 
The Frahms later agreed to loan this money back to Reid Plastics, Inc.
and received the notes.  There is
substantial evidence plaintiff did not concede the $3.2 million issue.  Based on its factual findings, the probate
court did not err in rejecting defendants’ judicial admission argument.

 

F.  The Subparagraph B One-Third Limitation
Clause Does Not Apply

 

            Defendants
argue the trust language imposes a separate limitation on plaintiff’s
share.    Defendants contend plaintiff’s
share of the trust estate can only exceed one-third with the Duncanville
property and Reid Plastics, Inc. stock. 
Defendants rely on the last sentence of subparagraph B (“one‑third
clause”).  Defendants’ construction of
the one‑third clause is unpersuasive.

            The
one-third clause limits plaintiff’s share of the trust.  As noted, it states in part:  “Provided, however, that if the value of the
[Duncanville property] and the stock of Reid Plastics, Inc. exceeds one‑third
of the trust estate, the trust set aside for the benefit of TARI F. ROKUS shall
be comprised of said properties and the balance of the trust estate shall be
divided between Settlors’ other children or their descendants as provided in
subparagraph (A) above.”  The one-third clause
limits plaintiff’s share of the trust estate to the Duncanville property and
Reid Plastics, Inc. stock if their value exceeds one‑third of the total
estate.  However, if the total value of
the Duncanville property and Reid Plastics, Inc. stock is under one-third of
the whole trust, the clause does not apply. 
No party argues the value of Reid Plastics, Inc. stock and the
Duncanville property alone exceeds one‑third of the trust estate.  The one‑third clause is inapplicable.

 

 

 

 

 

 

 

 

IV.  CONCLUSION

 

            The order
under review is affirmed.  Plaintiff,
Tari F. Rokus, is awarded her appeal costs from defendants, Deborah D. Frahm
and Sherryl L. Lilley.

                                                NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                TURNER,
P. J.

 

 

We concur:

 

 

            KRIEGLER,
J.                      

 

 

            KUMAR, J.href="#_ftn2" name="_ftnref2" title="">*