Filing # 31588784 E-Filed 09/01/2015 04:44:20 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 2011-CA-010897 DIVISION: CV-F HUGH M. DURDEN, et al., etc., Plaintiffs, v. ANGELA B. COREY, etc., et al., Defendants. _______________________________________ MATTHEW P. DENN, the Attorney General of the State of Delaware, Counterclaim/Crossclaim Plaintiff, v. HUGH M. DURDEN, JOHN S. LORD, HERBERT H. PEYTON, JOHN F. PORTER III, WILLIAM T. THOMPSON III, and WINFRED L. THORNTON, as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont, deceased, Counterclaim Defendants, and ANGELA B. COREY, State Attorney in and for the Fourth Judicial Circuit of the State of Florida, THE NEMOURS FOUNDATION, a not-for-profit corporation organized under the laws of Florida, and PAM BONDI, the Attorney General for the State of Florida, Crossclaim Defendants. _______________________________________ FIRST AMENDED ANSWER, OBJECTIONS AND DEFENSES, AND COUNTERCLAIM AND CROSSCLAIM OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE Intervenor/Defendant, Matthew P. Denn, the Attorney General of the State of Delaware (the “Attorney General”), hereby answers the Complaint to Sever and Modify Trust (the “Complaint”) filed herein by Trustees, Hugh M. Durden, John S. Lord, Herbert H. Peyton, John F. Porter, III, William T. Thompson, III, and Winfred L. Thornton, as Trustees under the Last Will and Testament, and Codicils thereto, of Alfred I. duPont, Deceased (collectively, the “Trustees”), and says: 1. On information and belief, admitted. 2. Admitted that the Nemours Foundation is a not-for-profit corporation organized under the laws of Florida and receives funds from the Testamentary Trust for the purpose of providing care and treatment to the Testamentary Trust’s ultimate beneficiaries, as specified in the Will. The remaining allegations are denied, as the Florida courts have held and the Trustees have agreed that the Delaware Attorney General is the representative of the Delaware beneficiaries of the Trust and is charged with protecting the rights of those beneficiaries. 3. On information and belief, admitted. 4. On information and belief, admitted. As to Jurisdiction and Venue 5. Admitted that the Complaint purports to seek the severance and modification of an irrevocable trust. 6. On information and belief, admitted. 7. On information and belief, admitted. 2 As to Summary of the Complaint 8. Admitted. 9. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 9, and therefore denies those allegations. 10. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust, and that the expressed intent for such severance and modification is to permit the Charitable Trust to have the benefit of exemption from federal taxation, but the Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 10, and therefore denies those allegations. 11. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust, and that the Testamentary Trust has been modified and interpreted by the Stipulation and Agreement dated September 17, 1980, but the Attorney General otherwise denies the remaining allegations of paragraph 11. 12. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 12, and therefore denies those allegations. 13. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 13, and therefore denies those allegations. 14. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 14, and therefore denies those allegations. 15. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 15, and therefore denies those allegations. 3 16. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 16, and therefore denies those allegations. 17. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 17, and therefore denies those allegations. 18. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 18, and therefore denies those allegations. 19. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 19, and therefore denies those allegations. As to General Allegations 20. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and therefore denies those allegations. 21. Admitted. 22. On information and belief, admitted. 23. The Attorney General denies that the property now known as the Nemours Mansion and Gardens is open to the public on a regular basis as intended by Mr. duPont, but the Attorney General, on information and belief, admits the remaining allegations of paragraph 23. 4 24. The Attorney General states that the content of Mr. duPont’s Will speaks for itself and therefore denies the allegations of paragraph 24. 25. The Attorney General states that the content of Mr. duPont’s Will speaks for itself and therefore denies the allegations of paragraph 25. 26. The Attorney General denies the allegations of paragraph 26. 27. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 27, and therefore denies those allegations. 28. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 28, and therefore denies those allegations. 29. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and therefore denies those allegations. 30. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 30, and therefore denies those allegations. 31. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and therefore denies those allegations. 32. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 32, and therefore denies those allegations. 5 33. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust, but the Attorney General denies that the Testamentary Trust is limited in its obligation to pay out only three percent (3%) of its fair market value each year, and the Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 33, and therefore denies those allegations. 34. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 34, and therefore denies those allegations. 35. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 35, and therefore denies those allegations. As to Legal Authority for Severance 36. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust, and that severance is permitted under Section 736.0417, Florida Statutes. 37. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 37, and therefore denies those allegations. 6 As to Legal Authority for Modification 38. The Attorney General admits that a court may modify a trust under applicable statutory and common law. 39. Admitted that Section 736.04113, Florida Statutes, permits a court to modify a trust under the terms set forth therein. 40. Admitted that Section 736.0416, Florida Statutes, permits a court to modify a trust under the terms set forth therein. 41. The Attorney General admits that a court may modify a trust under applicable common law, but states that such judicial modification is only permitted upon compliance with fundamental principles of due process and upon proper notice to all beneficiaries and other interested persons and affected parties. 42. The allegations of paragraph 42 allege no material fact, and therefore require no answer, but to the extent the allegations may be material, they are denied. As to Count I – Severance of The Testamentary Trust 43. For his answer to the allegations of paragraph 43, the Attorney General restates and incorporates herein his answers to paragraphs 1 through 42 above. 44. Admitted. 45. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust, but the Attorney General denies that the proposed Charitable Trust will not impair the rights of any beneficiary or adversely affect achievement of the purposes of the Testamentary Trust. 46. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or 7 information sufficient to form a belief as to the truth of the remaining allegations of paragraph 46, and therefore denies those allegations. 47. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 47, and therefore denies those allegations. 48. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 48, and therefore denies those allegations. As to Count II – Modification of the Annuitants’ Trust 49. For his answer to paragraph 49, the Attorney General restates and incorporates his answers to paragraphs 1 through 48 above. 50. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 50, and therefore denies those allegations. 51. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 51, and therefore denies those allegations. 52. Admitted that Exhibit C attached to the Complaint purports to be a complete copy of the proposed Modified and Restated Trust Agreement for the Alfred I. duPont Annuitants’ Trust. 8 53. Admitted that the Complaint purports to seek the severance and modification of the Testamentary Trust, but the Attorney General denies that the Testamentary Trust is limited in its obligation to pay out only three percent (3%) of its fair market value each year, and the Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 53, and therefore denies those allegations. 54. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 54, and therefore denies those allegations. 55. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 55, and therefore denies those allegations. 56. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 56, and therefore denies those allegations. 57. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 57, and therefore denies those allegations. 9 58. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 58, and therefore denies those allegations. 59. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 59, and therefore denies those allegations. 60. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 60, and therefore denies those allegations. 61. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 61, and therefore denies those allegations. 62. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 62, and therefore denies those allegations. As to Count III – Modification of Charitable Trust 63. For his answer to paragraph 63, the Attorney General restates and incorporates herein his responses to paragraphs 1 through 49 above. 10 64. Admitted that the Complaint purports to seek to establish the Charitable Trust, and that what purports to be a complete copy of a Modified and Restated Trust Agreement for the Alfred I. duPont Charitable Trust as proposed by the Trustees is attached to the Complaint as Exhibit D, but the Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 64, and therefore denies those allegations. 65. The Attorney General states that Mr. duPont’s Will and the “numerous court orders and stipulations” referenced in paragraph 65 speak for themselves and therefore denies the allegations of paragraph 65. 66. Admitted that the Complaint purports to seek to establish the Charitable Trust. The remaining allegations of paragraph 66 state a conclusion of law to which no response is required. 67. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 67, and therefore denies those allegations. 68. Admitted that the Complaint purports to seek to establish the Charitable Trust, but the Attorney General specifically denies that the proposed “Purposes of the Trust” faithfully and accurately state the testamentary intent of Mr. duPont. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 68, and therefore denies those allegations. 69. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General denies that the terms of the proposed Charitable Trust adequately reflect the testamentary intent of Mr. duPont or his charitable objectives, and the Attorney General therefore denies the remaining allegations of paragraph 69. 11 70. On information and belief, admitted. 71. The allegations of paragraph 71 state a conclusion of law to which no response is required. 72. The Attorney General denies that the Trustees represent the interests of the people of Delaware who are Mr. duPont’s primary intended beneficiaries of the Trust, and otherwise lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 72, and therefore denies those allegations. 73. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 73, and therefore denies those allegations. 74. The allegations of paragraph 74 state a conclusion of law to which no response is required. 75. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 75, and therefore denies those allegations. 76. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 76, and therefore denies those allegations. 77. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 77, and therefore denies those allegations. 78. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a 12 belief as to the truth of the remaining allegations of paragraph 78, and therefore denies those allegations. 79. This paragraph sets forth no substantive allegations and therefore no response is required. To the extent a response is required, any allegations in paragraph 79 are denied. 80. The Attorney General states that the 2004 Final Judgment speaks for itself. and therefore denies the allegations of paragraph 80. 81. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 81, and therefore denies those allegations. 82. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 82, and therefore denies those allegations. 83. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 83, and therefore denies those allegations. 84. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 84, and therefore denies those allegations. 85. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a 13 belief as to the truth of the remaining allegations of paragraph 85, and therefore denies those allegations. 86. Admitted that the Complaint purports to seek to establish the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 86, and therefore denies those allegations. 87. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 87, and therefore denies those allegations. 88. Admitted that the Complaint purports to seek to establish the Annuitants’ Trust and the Charitable Trust. The Attorney General otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 88, and therefore denies those allegations. 89. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 89, and therefore denies those allegations. 90. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 90, and therefore denies those allegations. 91. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 91, and therefore denies those allegations. 92. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 92, and therefore denies those allegations. 93. The Attorney General lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 93, and therefore denies those allegations. 14 94. Admitted that the Trustees request the specified relief, but the Attorney General denies that the Trustees are entitled to the relief in the form, detail, terms and provisions for the Annuitants’ Trust and the Charitable Trust in the forms of those trusts as requested. OBJECTION AND DEFENSES The Attorney General does not object in concept to a severance of the Testamentary Trust into the Annuitants’ Trust and the Charitable Trust, which the Trustees maintain will achieve significant tax savings, or to the amendment and restatement of the Annuitants’ Trust and the Charitable Trust, which will be important to the proper administration of those trusts, particularly with respect to the public beneficiaries in the State of Delaware, as well as the parties charged with the administration, oversight, and enforcement of the Trusts. However, the terms of any restated Charitable Trust must reflect, and thus must not be inconsistent with, the testamentary intent of Mr. duPont as expressed in his Will. Accordingly, the Attorney General, as the representative of the people of Delaware, who have a special interest in the enforcement of the Testamentary Trust and a special status not enjoyed by the public at large, objects to the judicial modifications proposed for the Proposed Charitable Trust following the severance, on the following grounds: First Objection and Defense Although the Attorney General does not object to the severance of the Testamentary Trust in order to permit more favorable tax treatment, the Attorney General asserts that numerous of the modifications proposed by the Trustees for the Annuitants’ Trust and the Charitable Trust (the “Proposed Charitable Trust”), upon their severance, are contrary to the express testamentary intent of Mr. duPont as expressed in his Last Will and Testament, dated November 19, 1932, and Codicils thereto (collectively, the “Will”), including as modified and interpreted by the 1980 Settlement Agreement (as defined below), and are not necessary to avoid 15 the defeat or any substantial impairment of the accomplishment of any material purpose of the Testamentary Trust, and thus are not authorized under Section 736.04113, Florida Statutes. Specifically, the Proposed Charitable Trust contradicts the express terms of the Will and the 1980 Settlement Agreement in the following ways, among others: a. ITEM 9 of the Will provides that the Board of Managers shall “control” Nemours, and consist of five persons, at least three of whom are Delaware residents. However, contrary to the express testamentary intent of Mr. duPont, the Proposed Charitable Trust seeks to vest control of Nemours in a Board of Directors consisting of Trustees (known as “Member Directors”) and/or “NonMember Directors” appointed annually by the Trustees. See Article Five, Proposed Charitable Trust. Under the terms of the Proposed Charitable Trust, the Non-Member Directors can be removed by the Member Directors with or without cause at any time. For the Proposed Charitable Trust to qualify as a Type II supporting organization, as is proposed for the Proposed Charitable Trust, a majority of the governing body of the supporting organization (i.e., the Proposed Charitable Trust) would also have to comprise a majority of the governing body of the supported organization (i.e., Nemours). In addition, the Trustees, who as Member Directors of the Nemours Board of Directors exercise primary control of Nemours, are all non-Delaware residents, with the sole exception of Trustee John Porter, III, and a recently added trustee, Richard Christopher. Such a governance structure would be contrary to Mr. duPont’s clear intent in ITEM 9 of the Will that decisions about managing the Nemours Foundation (which Mr. duPont intended to be based in Delaware) would be made 16 by a Board of Managers consisting of five persons, at least three of whom (and thus a 60% majority) are Delaware residents. A Delaware-majority Board of Managers, with a majority of its members living and working in Delaware, is best situated to ensure that the Nemours Foundation maintains Mr. duPont’s intended focus on the health needs of eligible Delawareans, including ensuring that the Trust and the Nemours Foundation properly discharge Mr. duPont’s directive that “first consideration” be given to beneficiaries who are residents of Delaware (as stated in ITEM 9 of the Will), and his mandate that the people of Delaware be “properly provided for” before surplus Trust income is spent outside of Delaware (as stated in ITEM 10 of the Will). Accordingly, the governance of the Proposed Charitable Trust, together with the Trustees’ prior actions in restructuring the governance of Nemours, will defeat Mr. duPont’s testamentary intent. The Attorney General submits that qualification of the Proposed Charitable Trust as a Type II supporting organization in the form of the proposed governance structure is not necessary to achieve the beneficial tax treatment, which may be obtained through other structures not inconsistent with Mr. duPont’s testamentary intent for the governance of Nemours. Article Five of the Proposed Charitable Trust would thus inequitably deprive the public beneficiaries in the State of Delaware of the level of representation by Delaware residents mandated by Mr. duPont for the governance of Nemours unless a majority of the proposed Board of Directors were required to be Delaware residents. 17 b. ITEM 9 of the Will provides that “My [t]rustees are specifically instructed that it shall be their duty, first, to care of the mansion and grounds and gardens surrounding [the Mansion][….] Only after faithfully carrying out the above instructions shall my Trustees be warranted in using any portion of the capital or income of my estate for additional charitable purposes.” (Emphasis added). ITEM 9 of the Will also directs the trustees to pursue the Testamentary Trust’s charitable purposes, with “first consideration, in each instance, being given to beneficiaries who are residents of Delaware. . . [.]” Contrary to the express testamentary intent of Mr. duPont, under the Proposed Charitable Trust maintenance of the Mansion and Gardens would be allocated solely to Delaware after calculation and distribution of the Proposed Charitable Trust’s distributions, contrary to Mr. duPont’s clear and unequivocally-expressed intent. See Article Two A (4), Proposed Charitable Trust. This provision would have the effect of inequitably limiting the Charitable Trust’s distributions in Delaware to the detriment of the public beneficiaries in the State of Delaware by diluting Delaware’s share (but no other non-Delaware shares) with Mansion and Gardens expenses. c. The Proposed Charitable Trust seeks to modify and inequitably limit the Trustees’ duty to inform and account pursuant to Sections 736.0105(2)(s), 736.0105(2)(t), and 736.0813, Florida Statutes. Specifically, Article Two of the Proposed Charitable Trust contains a provision requiring the Charitable Trust to report annually to the Attorney General: the (i) fair market value of the Proposed 18 Charitable Trust; (ii) distributions to Nemours from the Proposed Charitable Trust; and (iii) the amount of distribution spent outside the State of Delaware, but it does not provide for or describe a level of specificity which would allow for the necessary level of review by the Attorney General, particularly with respect to non-health care related expenditures within the State of Delaware, as well as all other expenditures made outside the State of Delaware. Such detailed reporting is crucial to ensuring that Mr. duPont’s testamentary intent is followed with respect to “first consideration” being given to Delaware beneficiaries, and is of utmost importance to the Attorney General given the special treatment afforded the public beneficiaries in the State of Delaware by Mr. duPont in his Will. This provision of the Proposed Charitable Trust would unfairly prejudice the Attorney General’s ability to protect the public beneficiaries in the State of Delaware. d. The Proposed Charitable Trust seeks to enshrine the position that the Testamentary Trust shall distribute annually only three percent (3%) of the fair market value of the trust assets, without reference to the actual income of the Testamentary Trust, contrary to the express direction of Mr. duPont that all income of the Testamentary Trust be distributed and applied to his expressed charitable purposes, all contrary to the Will and the 1980 Settlement Agreement. Additionally, the proposed Charitable Trust seeks to modify the methodology for determining the net fair market value of the Charitable Trust in determining future distributions to Nemours, and ultimately to the public beneficiaries in the State of Delaware and elsewhere. By implementing a so-called “smoothing” methodology 19 which uses a three-year (twelve-quarter) rolling average of the fair market value of the Charitable Trust in order to establish future distribution amounts, the Trustees may potentially understate the principal value of the Proposed Charitable Trust by, among other things, relying on unobservable management assumptions for certain types of assets, and on lower-valued quarters, the effect of which may actually decrease the annual distribution amounts to Nemours, contrary to the testamentary intent of Mr. duPont. e. The proposed Charitable Trust also contains provisions that contemplate the conversion of Nemours into a for-profit entity. Article Two C, Proposed Charitable Trust. f. The Proposed Charitable Trust would exonerate the Trustees from liability except for willful default. Article Nine F, Proposed Charitable Trust. This provision would modify the 2004 Judgment (as defined below and to the extent it is effective), which provides that the Prudent Investor Rule is the standard of care required of the Trustees. g. With respect to future amendments to the Charitable Trust, Article 12 of the Proposed Charitable Trust would allow for the Trustees to amend the Proposed Charitable Trust in their sole discretion, or with respect to certain provisions, with the approval of the Court, but in neither instance would require the Trustees to formally notify the Attorney General of any proposed amendments to the Proposed Charitable Trust. Formal, prior notification to the Attorney General is crucial given Mr. duPont’s clear testamentary intent regarding the importance and prioritization of the public beneficiaries in the State of Delaware 20 with respect to the Testamentary Trust and its expenditures, and inasmuch as “the people of Delaware have a special interest in the enforcement of the duPont Trust,” which gives “the people of Delaware a special status not enjoyed by the public at large,” and the Delaware Attorney General, as the representative of the people of Delaware, “is the proper party to bring suit on their behalf.” State of Delaware ex rel. Gebelein v. Florida First Nat’l Bank of Jacksonville, 381 So.2d 1075, 1078 (Fla. 1st DCA 1979). Such notice is crucial to the fulfillment of Mr. duPont’s testamentary intent given the Trustees’ conspicuous predisposition to discount his testamentary intent that “first consideration, in each instance, be given to beneficiaries who are residents of Delaware. . . [.]” h. The Proposed Charitable Trust omits any requirement for the board of trustees of the Testamentary Trust at all times to include a corporate trustee, contrary to the unequivocally expressed intent of Mr. duPont. i. The Proposed Charitable Trust would attempt to permit the removal of a trustee by the affirmative vote of the remaining trustees if the “offending” trustee created disharmony, the effect of which would stifle the free and appropriate exercise by each trustee of their independent fiduciary duties. See Article Ten (D)(1)(h), Proposed Charitable Trust. j. The Proposed Charitable Trust purports to memorialize the definition of “crippled children” as being limited to children under the age of eighteen (18) years, which is contrary to the terms of the 1980 Settlement Agreement establishing the definition of “crippled children” to be limited to children under the age of twenty-one (21) years. Article Two (A)(2), Proposed Charitable Trust. 21 The Trustees also propose to make a major substantive change to the definition of “crippled children” that exempts from the definition any “exceptions approved by the Board of Directors of the Nemours Foundation. . . .” Id. k. In addition to the representative examples listed above, the Attorney General has further concerns, but presently lacks information sufficient to determine whether other provisions of the proposed Charitable Trust comport or conflict with the testamentary intent of Mr. duPont, the Will, the 1980 Settlement Agreement, and Florida law, and the Attorney General reserves the right to amend or expand these objections to the proposed Charitable Trust after discovery is complete. Second Objection and Defense The Judgment entered by this Court on December 28, 2004 (the “2004 Order”), was entered upon proceedings to which the Attorney General was not a party nor of which it received timely notice. As recognized over 35 years ago, “the people of Delaware have a special interest in the enforcement of the duPont Trust,” which gives “the people of Delaware a special status not enjoyed by the public at large,” and the Delaware Attorney General, as the representative of the people of Delaware, “is the proper party to bring suit on their behalf.” State of Delaware ex rel. Gebelein v. Florida First Nat’l Bank of Jacksonville, 381 So.2d 1075, 1078 (Fla. 1st DCA 1979). The Attorney General has no duty to monitor the affairs of the Testamentary Trust, either under applicable statutory or common law or under the 1980 Settlement Agreement, but instead the Attorney General is entitled to notice of actions to modify or permit deviation from the Testamentary Trust, where such actions affect the interests of the people of Delaware. To the extent the proposed Charitable Trust attempts to memorialize terms arising under the 2004 Order, such terms are void or voidable as they affect the interests of the people of Delaware. 22 COUNTERCLAIM AND CROSSCLAIM Intervenor/Defendant and Counterclaim and Crossclaim Plaintiff Matthew P. Denn, Attorney General of the State of Delaware,1 pursuant to Rule 1.170(a) and (g), Florida Rules of Civil Procedure, sues Counterclaim Defendants Hugh M. Durden, John S. Lord, Herbert H. Peyton, John F. Porter, III, Richard T. Christopher, and Winfred L. Thornton, as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, and Crossclaim Defendants Angela B. Corey, State Attorney in and for the Fourth Judicial Circuit of the State of Florida, The Nemours Foundation, a not-for-profit corporation organized under the laws of the State of Florida, and Pamela J. Bondi, Attorney General of the State of Florida, and alleges: INTRODUCTION 1. Alfred I. duPont was born and lived most of his life in Delaware. He loved the State and the people who call it home, and he demonstrated that care and concern for the people of Delaware throughout his life in ways both big and small. One well-known example of this care and concern was his decision in the 1920s to fund a pension plan for every indigent, elderly resident of Delaware after the Delaware General Assembly first rejected his exhortation of “the stern necessity” to provide for “those in Delaware who are in direct need.” 2. But no single act better demonstrates Mr. duPont’s care and concern for the people of Delaware, and his general conviction that it is “the duty of everyone in the world to do what is within his power to alleviate human suffering,” than his establishment of the testamentary trust that gave rise to the creation of The Nemours Foundation (“Nemours”). In one of the greatest acts of charity of the twentieth century, he directed in his will that the entirety 1 On January 6, 2015, Matthew P. Denn succeeded Joseph R. Biden, III, as the Attorney General of the State of Delaware. Pursuant to Rule 1.260(d)(1), Florida Rules of Civil Procedure, when a public officer is a party to an action in an official capacity and ceases to hold office during the pendency of the action, the officer’s successor is automatically substituted as a party. 23 of his considerable estate, after making allowances for certain legacies and bequests, be placed into a trust, with the income from that trust paid over to Nemours for the purpose of providing for “the care and treatment of crippled children, but not of incurables, or the care of old men or old women, and particularly old couples, first consideration being given in each instance to beneficiaries who are residents of Delaware.”2 And to ensure that Nemours would keep its focus upon the people of the State in which he lived and worked for most of his life, Mr. duPont directed that Nemours be controlled by a Board of Managers, and mandated that this Board consist of a majority of Delaware residents. 3. Following Mr. duPont’s death in 1935, his trustees dutifully established Nemours, but the trustees, none of whom were Delaware residents, never relinquished real control of Nemours to a majority-Delaware Board of Managers. At no point in the eighty years since Mr. duPont’s death have the trustees followed Mr. duPont’s instructions on this point. As a result of this failure, the clear focus upon beneficiaries who are residents of Delaware (“Delaware Beneficiaries”) that Mr. duPont intended in his Will, and which he attempted to ensure through provisions such as the Delaware-majority Board membership requirement, has drifted dramatically out of focus. 4. Nemours did, consistent with Mr. duPont’s instructions, construct a facility for the care of children near Mr. duPont’s Delaware home (the home and its surrounding gardens, collectively, the “Mansion and Gardens”). First built in 1940, and expanded in 1984, the A.I. duPont Hospital for Children in Wilmington, Delaware (“Delaware Children’s Hospital”) plays an important role in providing pediatric health care in Delaware, including having Delaware’s 2 For purposes of this pleading, “crippled children, but not incurables” are referred to herein as “Eligible Children,” and “old men or old women, and particularly old couples” are referred to herein as “Eligible Elderly.” 24 only pediatric trauma center. But in more recent years, the trustees and Nemours have forsaken Mr. duPont’s clear direction that the residents of Delaware be “properly provided for” before Trust income was spent in “any other state or states,” and instead have built up an impressive network of clinics and hospitals in Florida and other states besides Delaware. 5. Through this action, Matthew P. Denn, the Attorney General of the State of Delaware, seeks the Court’s assistance in returning the trustees and Nemours to the focus that Mr. duPont clearly directed, and that those closest to Mr. duPont understood he intended: giving true meaning to the concept of giving “first consideration” to, and “properly providing for,” the residents of Delaware. Edward Ball, Mr. duPont’s brother-in-law and most trusted advisor, one of Florida’s most influential citizens, and Chairman of the Trust for 46 years (as well as President of Nemours for several years), correctly characterized it as a spending preference—in other words, so long as Eligible Children or Eligible Elderly in Delaware have unmet health care needs, Nemours must direct the net income it receives from the Trust to addressing the health care needs of Eligible Children or Eligible Elderly in Delaware before it can direct any of that money to address such needs outside of Delaware. 6. The Trustees of the Trust and the Directors of Nemours are both independently obligated to ensure that the funds coming from the Trust are used in a manner consistent with that spending preference, and that the mission of Nemours is true to that mandate, but they are failing Mr. duPont, and the people of Delaware, in that regard. And as the affirmative relief sought by the Trustees in this action, the proposed revised Charitable Trust, demonstrates, they will continue to fail Mr. duPont and the people of Delaware in that regard. The proposed revised Charitable Trust would control one of the nation’s largest charitable institutions for decades to come, yet it is filled with provisions demonstrably at odds with Mr. duPont’s clear instructions in 25 his Will. Approval of the proposed revised Charitable Trust as submitted by the Trustees would exacerbate the ongoing and serious problems with the administration of the Trust, and with it the functioning and focus of Nemours. It is flatly at odds with Mr. duPont’s clear wishes, and should not be approved by this Court. PARTIES 7. Counterclaim and Crossclaim Plaintiff Matthew P. Denn is the Attorney General of the State of Delaware, and brings this action in his capacity as the lawful representative of the citizens of the State of Delaware. As used herein, “Delaware Attorney General” refers to Matthew P. Denn, and those of his predecessors who held the office of Attorney General of the State of Delaware during a specified time period. 8. Counterclaim Defendants Hugh M. Durden, John S. Lord, Herbert H. Peyton, John F. Porter, III, Richard T. Christopher, and Winfred L. Thornton (collectively, “Trustees”) are the present trustees of the Alfred I. duPont Testamentary Trust (“Trust”), which was created under the Last Will and Testament, dated November 19, 1932, and Codicils thereto, of Alfred I. duPont, Deceased. 9. Crossclaim Defendant Angela B. Corey is the State Attorney in and for the Fourth Judicial Circuit of the State of Florida (“Florida State Attorney”), and is named as a crossclaim defendant solely in her official capacity. 10. Crossclaim Defendant The Nemours Foundation is a not-for-profit corporation formed under the laws of the State of Florida. 11. Crossclaim Defendant Pamela J. Bondi is the Attorney General of the State of Florida (“Florida Attorney General”), and is named as a crossclaim defendant solely in her official capacity. 26 JURISDICTION AND VENUE 12. This action is a proceeding arising under the Florida Trust Code, for which the circuit courts of Florida have original jurisdiction pursuant to Section 736.0203, Florida Statutes (2015). 13. Venue is proper in Duval County, Florida, pursuant to Section 736.0204(3), Florida Statutes (2015), because the Trust’s principal place of administration is located in this county. 14. This court may validly exercise personal jurisdiction over all of the Counterclaim and Crossclaim Defendants. The Trustees are subject to personal jurisdiction under Section 736.0202(2)(a), Florida Statutes (2015). Nemours is subject to personal jurisdiction under Section 48.193, Florida Statutes (2015). The Florida State Attorney and the Florida Attorney General are subject to personal jurisdiction under Section 736.0202(2)(b), Florida Statutes (2015). FACTUAL BACKGROUND Mr. duPont Provides Clear Direction To His Trustees And A Strong Delaware Focus 15. Mr. duPont executed his Last Will and Testament on November 19, 1932, and amended it twice before his death on April 29, 1935, via codicils dated March 4, 1933, and January 15, 1935 (collectively, “Will”).3 16. Through his Will, Mr. duPont established the Trust and directed his Trustees to create a charitable institution to be named “The Nemours Foundation.” Mr. duPont made clear that the needs of the people of the State of Delaware were to be the central focus of that charitable institution: all income from that corpus was to support the operations of Nemours, 3 A copy of the Will is attached as Exhibit A. 27 with any excess funds available to Nemours being utilized to “properly provide for” the health care needs of Delawareans before such funds flowed to “any other state or states.” (Ex. A, Will, Book 5 at 60).) 17. Mr. duPont imposed two key duties upon his Trustees: wisely invest the corpus of the Trust (id. at 46); and provide the income from that corpus to the new institution the Trustees were to create. That Foundation was to focus upon “the care and treatment of crippled children, but not of incurables, or the care of old men or old women, and particularly old couples, first consideration, in each instance, being given to beneficiaries who are residents of Delaware.” (Id. at 56.) 18. Mr. duPont directed his Trustees to appoint a “Board of Managers,” and directed that such Board of Managers would be the entity “controlling said institution.” (Id. at 46.) Mr. duPont further directed that three-fifths of that Board consist of residents of Delaware. (Id. at 58.) 19. At the same time, the Will granted the Trustees “full charge of the management and policy of said Foundation. . . .” (Id. at 58.) However, this reservation to the Trustees of authority to replace the Board of Managers and to set the overall policies of Nemours did not deprive the Board of Managers of the role of actually controlling Nemours. 20. Mr. duPont directed that all income from the Trust was to be provided to Nemours, an entity that he anticipated would be entirely located in the State of Delaware (because he directed that Nemours’ facilities be “located a reasonable and proper distance from the Mansion House.”) (Id. at 58.) He further mandated that any income beyond what could be utilized at that one location in Delaware be used to address the needs of Delawareans before any funds were spent outside of the State. To effectuate this, he granted an essential power to his 28 Board of Managers to protect the health needs of Delawareans: that Board was to direct the “surplus income” from the Trust (id. at 60), should the income exceed what was required at the single Nemours location. The key guidance in making decisions about the use of surplus income was provided at Page 60 of the Will: such surplus income may from time to time be used by the Board of Managers of said “The Nemours Foundation,” my Trustees concurring, in contributions to other worthy charitable institutions designated by said Board and approved by my Trustees as may be conducted for the care of, or the care and treatment of, or the care and education of crippled children, or the care of old men, or of old women, or of old couples, or any one of such purposes. It is my wish that the people of Delaware needing the care of such institutions shall be properly provided for before any contributions are made to institutions of any other state or states. (Id. at 60 (emphasis added).) 21. It was both natural and logical that Mr. duPont would want a Delaware-majority Board of Managers to make decisions both about managing Nemours (which Mr. duPont intended to be based in Delaware) and also about surplus income beyond what could be employed by Nemours at that one location, because those individuals, living in Delaware, are best situated to focus upon the health needs of Delawareans. 22. The Will identified specific “rules and regulations” the Board of Managers would impose. These included establishing the Mansion and Gardens “for the reception of visitors and their entertainment,” but “mainly for the purpose of providing a library and exhibiting to the public interesting and valuable literature, works of art and any articles of historic and artistic interest for the advancement of education, and maintained, as far as possible, in their present condition.” (Id. at 16 (emphasis added)). 23. With respect to the Mansion and Gardens, Mr. duPont instructed his Trustees “it shall be their duty, first, to care for the mansion and grounds and gardens surrounding ‘Nemours’ 29 in order that they be maintained for the pleasure and benefit of the public in their present condition.” He further specified “[o]nly after faithfully carrying out the above instructions shall my Trustees be warranted in using any portion of the capital or income of my estate for additional charitable purposes.” (Id. at 16 (emphasis added)). 24. Mr. duPont died in Florida on April 29, 1935. His Will was admitted to probate in Duval County, Florida, by Order of Probate dated May 24, 1935, and the Trust was formed under Florida law, which governs the terms and administration of the Trust. The Management Structure Of Nemours Evolves In A Manner Inconsistent With Mr. duPont’s Direction In The Will 25. Unfortunately, the actual operations of the Trust and Nemours in the eight decades since Mr. duPont’s death have deviated significantly from the strong Delaware focus that Mr. duPont intended, despite the clear direction in Mr. duPont’s Will. The Trustees have never put in place the structural safeguards Mr. duPont developed to ensure Nemours’ mission would be focused upon the needs of Delawareans, and let what safeguards they did implement wither away. 26. For example, the Trustees, most of whom have been Floridians, for decades never relinquished control over Nemours to any subsidiary board, despite the clear language of the Will, and instead designated themselves as “members” of Nemours, a concept not set forth in the Will, and used that member status to control Nemours’ operations. 27. Similarly, the Trustees have never allowed Nemours’ operations to be run by a Delaware-majority board, despite Mr. duPont’s clear intent. Nemours itself has long been headquartered in Jacksonville, Florida, a decision at odds with Mr. duPont’s direction that Nemours be located a “reasonable and proper” distance from his Mansion and Gardens in Delaware. And while Nemours’ Board of Managers has existed throughout this time, it has 30 never “control[ed] said institution,” and has had no power to direct surplus funds over and above what could be used at the first Nemours location towards the needs of Delawareans. 28. As a result of these structural failures by the Trustees, Trust dollars have increasingly come to be used to develop a larger and larger hospital and clinic infrastructure in Florida, and in states other than Delaware, rather than in Delaware. And to compound the injury to Delaware, some of this growth is made possible by positive cash flow from the Delaware Children’s Hospital. Delaware Attempts To Bring The Actions Of The Trust And Nemours In Line With Mr. duPont’s Clear Intent 29. The long, slow drift away from Mr. duPont’s testamentary intent has not gone unaddressed or unchallenged, as there have been attempts to clarify the meaning of Trust provisions through court proceedings. One of those attempts bears specific mention, a January 1980 court-approved settlement that recognized the special status of the people of Delaware regarding the Trust and again confirmed the obligation to give “first consideration” to Delaware residents. 30. In 1977, the Delaware Attorney General filed a complaint against the Trustees both in their capacity as Trustees of the Trust and as members, officers and directors of Nemours, asserting claims relating to the administration of the Trust with respect to the failure to afford special treatment to the people of Delaware under the Will. The complaint sought injunctive relief, the removal of some trustees, the appointment of a temporary trustee, surcharges, and other relief. 31. The trial court dismissed the complaint on the basis that the State of Delaware did not have standing to bring suit on behalf of the Delaware Beneficiaries. The Florida First District Court of Appeal reversed, holding that “the people of Delaware have a special interest in 31 the enforcement of the duPont Trust,” which gives “the people of Delaware a special status not enjoyed by the public at large,” and that the Delaware Attorney General, as the representative of the people of Delaware, “is the proper party to bring suit on their behalf.” State of Delaware ex rel. Gebelein v. Florida First Nat’l Bank of Jacksonville, 381 So.2d 1075, 1078 (Fla. 1st DCA 1979). The Delaware Attorney General, as the lawful representative of the citizens of the State of Delaware, has, ex officio, exclusive authority under common law to bring actions to enforce charitable trusts on behalf of (and to protect) the beneficiaries who are residents of the State of Delaware. Wier v. Howard Hughes Medical Inst., 407 A.2d 1051, 1057 (Del. Ch. 1979). 32. Following this recognition of the Delaware Beneficiaries’ special interest, the parties to the litigation settled their dispute, and entered into a Stipulation and Agreement Between the State of Florida, the State of Delaware, the Trustees of the Alfred I. duPont Testamentary Trust and the Nemours Foundation (“1980 Settlement Agreement”).4 The 1980 Settlement Agreement was approved and adopted under a Final Judgment entered by this Court on January 18, 1980, in a related action. 33. The 1980 Settlement Agreement incorporated the Gebelein Court’s holding that the “Attorney General of Delaware is the representative of the Delaware Charitable beneficiaries” of the Trust and “is charged with protecting the rights of the said Delaware beneficiaries.” (Ex. B, 1980 Settlement Agreement at 1.) It also stated the “Trustees agree that at no time will more than fifty percent (50%) annually of the funds distributed by the Trust to Nemours be spent outside the State of Delaware” (id., ¶ F(3) at 5), and further stated, consistent with Mr. duPont’s intent, that “[f]irst consideration, in each instance, will be given to the beneficiaries who are residents in Delaware” (id., ¶ F(4) at 5). 4 A copy of the 1980 Settlement Agreement is attached as Exhibit B. 32 34. The 1980 Settlement Agreement also incorporated part of a 1972 Florida court judgment that construed and defined the term “crippled children” as used in the Will: The phrase “crippled children” as used in Mr. duPont’s Will is defined to mean persons under 21 years of age, who by reason of a physical defect or infirmity, whether congenital or acquired by accident, injury or disease, has been deprived of strength, activity or capability for service or use, in any part of the human body. (Id., ¶ F(1) at 5.) 35. The 1980 Settlement Agreement set forth specific provisions regarding the valuation of the Trust and, importantly, the payment of Trust income for the benefit of the Delaware Beneficiaries for years subsequent to 1979. Among other things, the agreement explicitly requires the Trustees to “pay over to Nemours” on or before April 15 each year “(1) the net income of the Trust, or (2) the statutory amount of three percent (3%) of the fair market valuation of the assets [of the Trust].” (Id., ¶ C at 3.) As the Florida court would confirm a few years later, the parties understood and intended that the 3% figure was a floor for the net income payout obligation, not an independent alternative. State of Delaware ex rel. Gebelein v. Belin, 456 So. 2d 1237, 1239 (Fla. 1st DCA 1984). 36. The 1980 Settlement Agreement also obligated Nemours to: communicate to every hospital in the State of Delaware its willingness and intention to treat every crippled but not incurable child in the State of Delaware, without regard to the child’s or the family’s ability to pay, but in the expectation that those who can pay will do so and that the hospital will collect any third-party payments to which it might be entitled. (Id., ¶ F(5) at 5.) Although the primary focus of this paragraph is Nemours’ promise to communicate something to every Delaware hospital, embedded within that promise is an important recognition by the Trust and Nemours, that the proper fulfillment of Nemours’ mission means that Nemours will treat every Eligible Child in Delaware without regard to whether 33 Nemours will receive payment for such treatment—whether from the child, the family, or a third party. In other words, Nemours is reaffirming its historical obligation to treat every Eligible Child in Delaware without regard to whether treatment of that child is profitable to Nemours. 37. The 1980 Settlement Agreement obligated the Trustees to set aside funds, both for the benefit of the Delaware Children’s Hospital, and for the benefit of the Eligible Elderly in Delaware. In particular, the Trustees agreed to establish a $25 million “contingency reserve” in Nemours “to insure that adequate funds will be available for the operation of” the Delaware Children’s Hospital. (Id., ¶ F(6)(a) at 5-6.) The Trustees and Nemours, moreover, agreed “to immediately formulate a plan for providing charitable benefits to residents of Delaware qualifying as ‘old men or old women or particularly old couples.’” (Id., ¶ F(6)(b) at 6.) The agreement also mandated “a commitment to expend a minimum of” $6 million during the initial two year period to end December 31, 1981, including “a permanent and continuing commitment to provide substantial funds for the elderly[,] which shall at a minimum equal the amount of earnings from the [$25 million] contingency reserve. . . .” (Id.) 38. The 1980 Settlement Agreement also identified specific commitments for medical facilities in Florida, but it did so with the stated understanding that the “amounts expended in such agreements shall be limited by the Delaware commitments set forth” in that agreement. (Id., ¶ G at 7-8.) 39. Finally, the 1980 Settlement Agreement clarified the Will’s pronouncement that Nemours would exist as a charitable institution “for the care and treatment of either crippled children, but not of incurables, or the care of old men or old women, and particularly old couples” and that “Mr. duPont intended for the Trustees to have the right to make such decision and/or decisions.” (Id., ¶ H(1) at 8.) However, the 1980 Settlement Agreement did not deviate 34 from Mr. duPont’s clear direction that the Trustees, in exercising the discretion they possessed, must always give first consideration—or “preference,” as Mr. Ball described it—to Delaware Beneficiaries. Without Notice To Delaware, The Trustees Use A Court Action To Formally Shift Control Of Nemours Away From Delaware 40. Despite the clear language of the Will, and the commitments made in the 1980 Settlement Agreement to effectuate Mr. duPont’s testamentary intent, the Trustees in 2004 sought and obtained amendments to the Trust—without notice to the State of Delaware—that made major, substantive alterations to key elements of the Will and its directives, particularly with respect to Trust governance and allocation of Trust funds. 41. On November 29, 2004, the Trustees filed a Complaint for Modification of Trust and Declaratory Judgment, resulting in significant substantive alterations to Mr. duPont’s intent as expressed in the Will. The Final Judgment Granting Modification of Trust and Declaratory Judgment entered on December 28, 2004 (“2004 Order”),5 while purporting to recognize the primacy of Delaware residents in Mr. duPont’s charitable intent, codified changes to the fundamental precepts of the Trust, as set forth in the Will. 42. Reducing the Length of Time Eligible Children Receive Care. In 1972, a final judgment of the Florida courts was filed adopting a definition of “crippled children” as referring to “a person under twenty-one years of age who, by reason of a physical defect or infirmity, whether congenital or acquired by accident, injury or disease, has been deprived of strength, activity, or capability for service or use, in any part of the human body.” Order and Final Judgment, Ball v. Nichols, Case No. 71-7001 (Dec. 31, 1971) (“1972 Final Judgment”).6 The 5 A copy of the 2004 Order is attached as Exhibit C. 6 A copy of the 1972 Final Judgment is attached as Exhibit D. 35 Trustees and Nemours endorsed this definition in 1980 when they entered into the 1980 Settlement Agreement. (Ex. B, 1980 Settlement Agreement, ¶ F(1) at 4.) But in 2004, claiming “[d]ramatic changes in medicine not anticipated by Mr. duPont,” the Trustees sought and obtained language in the 2004 Order stating “[c]ompliance with the current terms of the Trust, which currently does not address the expenditure of funds for preventative care, defeats a material purpose of the Trust to provide for the health care needs of children.” (Ex. C, 2004 Order, ¶ 5 at 4.) Accordingly, the 2004 Order modified Item 9 of the Will to change the age to which children could receive care, and to include preventative care: The general nature and purpose of the Corporation shall be the maintenance and support of, and the making of contributions to, charitable institutions operated for: (a) the care and treatment of children, but not of incurables, under eighteen (18) years of age, who by reason of physical defect or infirmity, whether congenital or acquired by accident, injury, or disease, have been deprived of strength, activity, or capability for service or use, in any part of the human body; (b) the prevention of those conditions described in (a); and (c) the care of individuals over sixty-five (65) years of age who are in need of supportive or alleviating medical or paramedical care beyond mere food, clothing, and shelter, first consideration, in each instance, being given to beneficiaries who are residents of Delaware. (Id., ¶ A at 8.) 43. Solidifying Trustees’ Improper Domination Of Nemours. Despite the Will’s clarity on the governance structure of Nemours, in particular the role of the Board of Managers, the 2004 Order solidified the Trustees’ control of Nemours by formalizing their role as Members of Nemours with defined powers, further emasculating the Board of Managers’ role in “controlling” Nemours as directed by Mr. duPont. 44. Specifically, the 2004 Order granted the Trustees’ request that the “Members of Nemours shall continue to consist of only those individuals then serving as Trustees of the Trust,” and reserved to the Members specified powers, including establishing “Nemours’ 36 purpose” and determining “the nature and scope of the services to be offered,” and specifying “that the use of distributions from the Trust shall be consistent with the purpose of Nemours.” (Id., ¶ B at 8.) There was, of course, no real need for the Trustees to seek this in the 2004 Order, because Mr. duPont had clearly set forth Nemours’ purpose in the Will seven decades earlier. 45. The 2004 Order also continued the Trustees’ effort to minimize any influence that the Board of Managers has over Nemours’ operations (despite Mr. duPont’s clear instructions), by specifying that the Members would elect the Board of Managers and setting forth the following new responsibilities of the Board of Managers: (a) determine the qualifications of professional staff of the facilities owned by the Nemours Foundation and located on the grounds of Nemours; (b) approve the credentials of the physicians and associated staff of the facilities owned by the Nemours Foundation and located on the grounds of Nemours; (c) review and determine, with the Board of Directors’ concurrence, the appropriate contingency reserve and the appropriate provision required for operating the facilities owned by the Nemours Foundation and located on the grounds of Nemours; (d) identify, with the Members’ concurrence, other worthy charitable institutions to receive grants from Nemours, in the event that Nemours’ income exceeds its needs; and (e) such other matters as the Board of Directors may request. 37 (Id., ¶ B at 9.) These enumerated responsibilities for the Board of Managers, which are nonsubstantive and permit the Board of Managers to act only at the behest of the Trustees, are inconsistent with Mr. duPont’s directive that the Board of Managers “control[]” Nemours. 46. Eliminating The Corporate Trustee. In his Will, Mr. duPont stated in unequivocal language that “a reputable corporate Trustee shall always be one of my Trustees.” (Ex. A, Will, Book 5 at 69.) The intended role of the corporate trustee, as set forth in the Will, but diluted in the 1980 Settlement Agreement, was to act as the deciding vote in the event of a Trustee impasse. The 2004 Order completely eliminated Mr. duPont’s mandate. (Ex. C, 2004 Order, ¶ C at 9.) 47. Capping The Trust’s Payout Of Net Income At 3%. Finally, the 2004 Order artificially limits the Trust’s payout to Nemours to “three percent (3%) of the fair market value of the Trust” (Id., ¶ E at 10-11), in defiance of both the Will’s mandate that the Trust pay “net income” to Nemours and the 1980 Settlement Agreement’s requirement that the Trust pay the higher of net income or 3% of fair market value. 48. Delaware did not receive notice of the action resulting in the 2004 Order. Accordingly, in 2012 the Delaware Attorney General filed a post-judgment motion to intervene and set aside the 2004 Order, arguing it was an indispensable party. The trial court denied the motion to intervene, concluding the Delaware Attorney General was not an indispensable party, and finding intervention would injure the original parties to the action and would not serve the interests of justice. 49. The Delaware Attorney General appealed the trial court’s denial of the motion to intervene. The Florida First District Court of Appeal, in a July 16, 2014 opinion, affirmed the denial of the motion to intervene and the finding Delaware was not an indispensable party to the 38 2004 litigation. In a September 16, 2014 opinion, the Florida First District Court of Appeal rejected the Delaware Attorney General’s efforts to have the matter reheard, and instead directed the Delaware Attorney General to this litigation: “It would be more appropriate for the Delaware Attorney General to seek modification of the Trust in that proceeding rather than attempting to invalidate” the 2004 Order.7 The Delaware Attorney General appealed the Florida First District Court of Appeal’s decision, and on February 13, 2015, the Florida Supreme Court declined to accept jurisdiction to hear the Delaware Attorney General’s appeal. Amendments To Nemours’ Governing Documents Implement The Movement Away From Mr. duPont’s Intent Permitted By The 2004 Order 50. Shortly after entry of the 2004 Order, Nemours revised its Articles of Incorporation (“Nemours Articles”).8 The Nemours Articles state that Nemours shall operate according to the Will’s requirements, including the requirement to give “first consideration” to Delaware residents. (Ex. E, Nemours Articles, Art. III at 4.) 51. However, the Nemours Articles, consistent with the 2004 Order, also perpetuate control of Nemours’ operations by non-Delawareans, contrary to Mr. duPont’s clear testamentary intent, by creating a management structure where the Trustees also serve as Directors holding exclusive powers to control Nemours. The Nemours Articles provide Nemours “shall have one class of Members,” who are “those individuals serving as Trustees.” (Id., Article VII at 5.) The Members (who are, of course, Trustees) appoint Nemours’ Board of Directors, which includes both Member Directors and Non-Member Directors. (Id., Article VIII at 7.) 7 Biden v. Lord, 147 So. 3d 632, 636 (Fla. 1st DCA 2014). 8 A copy of the Nemours Articles of Incorporation is attached as Exhibit E. 39 52. Despite the Will’s mandate that a Board of Managers, comprised of three-fifths Delawareans, control Nemours, the Nemours Articles state the “affairs of [Nemours] shall be managed by a Board of Directors appointed by the Members,” and this Board of Directors “shall have full charge of the management and operation of” Nemours. (Id., Article VIII, § 8.1 at 6-7.) 53. Furthermore, the Members, who are Trustees, retain the “exclusive right to vote on and determine” the following matters, among others, which “shall be within [their] sole authority:” (1) “[e]stablish the Corporation’s purpose and determine the nature and scope of the services to be offered;” (2) [a]ppoint Non-Member Directors of the Corporation and establish the total number of directors to be elected each year; (3) [r]emove any Non-Member Director with or without cause at any time; (4) [s]pecify that the use of distributions from the Trust shall be consistent with the purpose” of Nemours; and (5) “[a]mend the Articles of Incorporation and approve any changes to the Bylaws.” (Id., Article VII, § 7.3 at 6.) The Nemours Articles also grant the Members the power, “at their discretion,” to “evaluate and audit the programs and services” of Nemours, “at any time.” (Id., Article VII, § 7.4 at 6.) 54. Thus, despite stating that Nemours shall operate according to the Will’s requirements, including the requirement to give “first consideration” to Delaware residents, the Nemours Articles provide for a management structure that perpetuates the Trustees’ continued control of Nemours. However, because the Nemours Articles incorporate the central elements and obligations of the Trust, all of the fiduciary obligations imposed upon the Trustees with respect to their distribution of Trust income to beneficiaries, in particular their duty to give proper effect to Mr. duPont’s testamentary intent, are also duties owed by Nemours and its Board of Directors. 40 The Failure To Properly Implement Mr. duPont’s Intent Continues To Have Pernicious Effects On Delaware 55. The changes to the operations of the Trust and Nemours discussed above, particularly those that came about as a result of the 2004 Order, have allowed the Trust and Nemours to drift far away from Mr. duPont’s clear intent that Delawareans be given “first consideration” and “properly provided for,” which continues to have pernicious effects on Delaware. They reveal an institutional failure to manage Nemours in a manner consistent with Mr. duPont’s wishes as mandated in his Will, with the residents of Delaware neither receiving the “first consideration” to which they are entitled nor being “properly provided for” before programs in “other state or states” are funded. The Trust And Nemours Fail To Address The Health Care Needs Of Delawareans 56. First, and perhaps foremost, among these pernicious (and tragically avoidable) effects is on the delivery of health care to Eligible Children in Delaware. As Mr. duPont clearly demonstrated in his Will, he intended for the Trust to provide for the healthcare needs of Delaware residents. Nonetheless, evidence of the failure to evaluate and address healthcare needs in Delaware is ever-present. 57. Were the Trust and Nemours to more faithfully fulfill Mr. duPont’s intent and increase their focus upon Delaware’s healthcare needs, that focus could make a real difference to a small state. As matters currently stand, Delaware’s population on many measures presents only average or below-average indicators of overall health. Delaware ranks 31st in life expectancy at birth, 40th in adult current asthma prevalence, and 22nd in rate of immunizations for children between 19 and 35 months of age. Infant mortality, a widely accepted gauge for the overall health and well-being of a population, is higher in Delaware than any state other than 41 Alabama, Louisiana, Tennessee and Mississippi. The state ranks 35th in the rate of low birth weight babies.9 The Trustees And Nemours Have Focused On Funding Programs And Entities In Florida And States Surrounding Delaware 58. Additional evidence of this failure can be found by comparing funded programs and entities in Delaware with funded programs and entities in Florida and the states surrounding (but not including) Delaware (“Delaware Valley”), and the comparison belies any serious argument that Mr. duPont’s intent is being fulfilled and that Delaware residents are receiving the “first consideration” to which they are entitled. 59. Location Of Nemours Children’s Clinics. Nemours operates primary and specialty pediatric care clinics under a division it refers to as Nemours Children’s Clinics (“Clinics”). The Clinics are located in Delaware, Florida, New Jersey, Pennsylvania, and Maryland. However, there are substantial differences in the size, scope and service offerings between the various clinical locations, with a notable lack of attention to the Clinics located in Delaware. 60. Location Of Nemours Physicians. Of the approximately 300 physicians identifying a Clinic as the primary location from which they work, only 44 physicians (approximately 15% of the total) are in Delaware. In contrast, 162 physicians (54%) identify a Clinic in Florida, 65 physicians (22%) identify a Clinic in Pennsylvania, 18 physicians (6%) identify a Clinic in New Jersey, and 4 physicians (1.3%) identify a Clinic in Maryland. On a combined basis, Clinics in Pennsylvania, New Jersey, and Maryland employ twice as many physicians as do Clinics in Delaware (29.3% versus 15%). 9 See Kaiser Family Foundation State Health Facts, available at http://www.kff.org/statedata/. 42 61. Massive Infrastructure Investments Outside Delaware. Nemours recently broke ground on a new 65,000 square foot pediatric clinic in southern New Jersey that is expected to cost $45 million. Nemours has also stated its plans to expand into southeastern Pennsylvania, a region about which Nemours “has been thinking a lot,” according to Dr. Roy Proujanksy, Chief Executive Officer of Nemours Delaware Valley operations.10 This is a continuation of Nemours’ four year (2008–2012) strategic development plan focused on expanding outside of Delaware. The forthcoming New Jersey facility and planned expansion in southeastern Pennsylvania will only exacerbate the diversion of Nemours resources away from Delaware, contrary to Mr. duPont’s clearly expressed intent. 62. Nemours Focuses Its Growth Strategy On Florida. The continuing operational neglect of Delaware is also reflected in Nemours’ articulation of its future growth plans, which focus on Florida. As Dr. David Bailey, President and Chief Executive Officer of Nemours, acknowledged in 2013, Nemours’ “strategy” is to “provide more comprehensive care for more children in Florida’s panhandle.” NemoursUpdates, Delivering on the Promise of One Nemours, YouTube (Apr. 12, 2013).11 Nemours’ “long-term vision in Florida is to establish the most trusted children’s healthcare system in the region, one that encompasses the points of a triangle of Orlando, Jacksonville, and Pensacola.” Id. 63. Treating Delaware As Part Of The Delaware Valley In Financial Reports And Needs Assessments. Additional evidence of the neglect of Delaware arises from Nemours lumping Delaware in with its Delaware Valley operations in financial data and needs assessments. For example, when Nemours sponsored a “PRC Child & Adolescent Community 10 Harold Brubaker, Nemours Children’s Health System Expanding In South Jersey, PHILLY.COM (Apr. 24, 2015), http://articles.philly.com/2015-04-24/business/61462549_1_nemours-childrennorth-philadelphia-grand-view-hospital. 11 Available online at https://www.youtube.com/watch?v=cX4oO9ejAIA. 43 Health Needs Assessment” in 2013, it requested that Chester County and Delaware County in Pennsylvania be included with Delaware’s three counties in the survey. The estimated population of the Pennsylvania counties is 1.1 million on a combined basis, which in total exceeds Delaware’s estimated population of 935,000. This focus upon the Delaware Valley region, as opposed to a focus directly upon Delaware, may make sense from the perspective of the profitable operation of the Delaware Children’s Hospital, but it is inconsistent with Mr. duPont’s mandate. A regional focus diminishes the survey’s ability to assess Delaware’s health care needs and develop plans to address those needs, because the survey’s analysis focuses on the “total service area” and is “weighted in proportion to the actual population,” and Delaware residents make up less than 50% of that population. 64. Similarly, Nemours’ financial statements show that the share of the Trust’s annual distribution of net income going to Delaware is subsidizing the operations and capital needs of Clinics in the Delaware Valley. In fact, the largest portions of Trust allocations have been required to subsidize the Clinics’ negative cash flows from the Delaware Valley Clinics, the result of unprofitable operations and property and equipment purchases—$77 million in 2013 and $95 million in 2014, which represent 57% and 63% of total Trust distributions in those years. 65. Using Profits From The Delaware Children’s Hospital To Subsidize Other Operations. Nemours also neglects Delaware in favor of its Florida and Delaware Valley operations by using the significant annual profits and positive cash flows from the Delaware Children’s Hospital to subsidize the high operating losses and cash subsidies required to maintain the Clinics. 44 Trustees Improperly Allocate All Renovation And Annual Operating Expenses For The Nemours Mansion And Gardens To Delaware 66. Mr. duPont expressly provided in Item 9 of his Will that the care and maintenance of the Mansion and Gardens shall take priority over and precede all other charitable purposes. Specifically, Item 9 of the Will contains the following provision: My Trustees are specifically instructed that it should be their duty, first, to care for the mansion and the grounds and gardens surrounding “Nemours” in order that they be maintained for the pleasure and benefit of the public in their present condition and grounds improved from time to time, as their funds warrant; it being my particular desire that this memorial to my great great grandfather […] and to my father […] be not permitted to deteriorate, but that it should consistently become more beautiful and attractive to those who view it as time passes. Only after faithfully carrying out the above instructions shall my [t]rustees be warranted in using any portions of the capital or income of my estate for additional charitable purposes. (Ex. A, Will, Book 5 at 16 (emphasis added).) 67. As the foregoing language makes clear, Mr. duPont intended that expenses relating to care of the Mansion and Gardens, regardless of whether such expenses are characterized as renovations or routine care, and regardless of whether they are paid for out of Trust principal or income, must be paid for by the Trustees before any distribution for “additional charitable purposes” is made. In other words, such expenses are not supposed to be allocated to or charged against Delaware, or any other state for that matter—because Mr. duPont intended that the Trustees pay for those expenses before any distribution to Nemours is made, which is where any such allocation or charging occurs. And yet, despite Mr. duPont’s clear intent, the Trustees and Nemours have improperly allocated expenses for renovating and maintaining the Mansion and Gardens to Delaware. 45 68. For example, in 2009 the Trust completed a multi-million dollar renovation of the Mansion and Gardens, which was paid for solely with funds that the Trustees and Nemours attributed to Delaware for purposes of Nemours’ annual calculation under the 1980 Settlement Agreement. In fact, financial statements provided to the State of Delaware show that Nemours attributed to Delaware a total of more than $72 million of renovation expenses for the Mansion and Gardens between 2005 and 2010. On information and belief, attributing these costs to Delaware caused Delaware to receive less than 50% of the Trust’s annual net income in each of those years, in violation of the 1980 Settlement Agreement. 69. The 1980 Settlement Agreement, properly understood in light of the Will, requires that at least 50% of the Trust’s net income remaining after providing for the care and maintenance of the Mansion and Gardens be spent on charitable activities within Delaware. (Ex. B, 1980 Settlement Agreement, ¶ F(3) at 5 and Ex. A, and Will, Book 5 at 56-57.) No other construction of the 1980 Settlement Agreement is consistent with Mr. duPont’s intent as expressed in the Will. The Will expresses a clear intent that net income remaining after providing for the care and maintenance of the Mansion and Gardens be expended in a manner such that Delaware Beneficiaries are properly provided for before Trust income is expended in any other state. Construing the 1980 Settlement Agreement to allow Nemours to spend more than half of the Trust income available for the care of Delaware Beneficiaries outside Delaware is contrary to the intent of the Will and the spirit and intent of the 1980 Settlement Agreement. Trustees Fail To Maintain The Mansion And Gardens For The Pleasure And Benefit Of The Public And The Advancement Of Education 70. Mr. duPont directed in his Will that the “Mansion shall be used for the reception of visitors and their entertainment . . . mainly for the purpose of providing a library and exhibiting to the public interesting and valuable literature, works of art and any articles of 46 historic and artistic interest for the advancement of education,” and directed the Trustees to “care for the mansion and grounds and gardens surrounding ‘Nemours’ in order that they be maintained for the pleasure and benefit of the public.” (Ex. A, Will, Book 5 at 57.) Yet, notwithstanding $72 million spent on the Mansion and Gardens during recent renovations, neither the Mansion nor the Gardens is readily open and accessible to the general public: both are closed four months out of the year and always closed on Mondays; Mansion access is limited to guided tours of up to eight persons which are available only three times a day Tuesdays through Saturdays, and only twice on Sundays; there are no food or picnic facilities to encourage visitors; the Gardens are not ADA-compliant; and Nemours prohibits all motorized wheelchairs while also failing to make non-motorized wheelchairs available. 71. Perhaps most glaringly, despite Mr. duPont’s intent that his estate be preserved “for the advancement of education,” children under the age of 12 are not permitted admission to the Mansion and Gardens at all. This policy effectively prohibits families from visiting the Mansion and Gardens, with the result that many school-aged children are barred from the premises. The age restriction thus defeats Mr. duPont’s intent that the Mansion and Gardens be used for educational purposes. Indeed, it strains credulity that Mr. duPont would direct that Nemours maintain a hospital for the care of children, while simultaneously intending that children under 12 years of age be denied the benefits of the educational experience offered by the Mansion and Gardens. 72. The Trustees’ and Nemours’ administration of the Mansion and Gardens— specifically, the limited hours, restrictive admission policies, prohibition of children, and lack of educational programs and activities—is contrary to Mr. duPont’s intent that the estate be maintained “for the pleasure and benefit of the public.” 47 Trustees Are Not Paying Out All Trust Income, Despite Mr. duPont’s Clear Direction In His Will 73. The Trustees’ and Nemours’ failure to implement Mr. duPont’s testamentary intent harms Delaware residents in another, significant way: it reduces the amount of money available to address the health care needs of Delaware Beneficiaries below what Mr. duPont directed. As discussed above, Mr. duPont provided clear direction to his Trustees to pay out all income from the Trust to support Nemours and its charitable mission, and the 1980 Settlement Agreement captures this intent by obligating the Trust to pay out the higher of the net annual Trust income or the then-statutory minimum amount of 3% of the Trust assets, a figure that came from what was then the Florida underproductive property statute (Section 738.12, Florida Statutes). Instead of distributing all net income, which currently averages 7% of Trust assets, the Trustees have historically paid out only 3%, a figure they attempted to lock in with the 2004 Order. 74. In fact, one part of the litigation leading to the 1980 Settlement Agreement was an effort by the State of Delaware to establish valuations of certain assets in the corpus that were not income-producing and difficult to value, and to establish rules for the Trustees in paying out income from those assets. The underproductive property statute in Florida set 3% of the value of the principal of the Trust as the floor amount to be paid out to Nemours (Section 738.12, Florida Statutes (1979)). If the 1980 Settlement Agreement reflected an agreement to a continual 3% payout, the language could have simply said that, or simply pointed to Section 738.12. Instead, the parties agreed that 3% would be the new floor, in order to comply with the then-existing Florida unproductive property statute, and left untouched the Will’s ongoing obligation to pay out “income.” This reading of the 1980 Settlement Agreement was confirmed by the Florida 48 Circuit Court in State of Delaware ex rel. Gebelein v. Belin, 456 So.2d 1237 (Fla. Dist. Ct. App. 1984). In that decision, the Court found that: For years after 1979, it was agreed that the net income of the Trust or 3 percent of the fair market value of the Trust assets, whichever was greater, would be paid to Nemours. The Trustees would be bound to the prudent trustee’s rule to try to raise the Trust income above 3 percent. Id. at 1239 (emphasis added). 75. Despite this, the Trustees claimed in the court action leading to the 2004 Order that they were “uncertain” as to their distribution obligations in the wake of the repeal of Section 738.12, and asked for a confirmation that they are “required to distribute 3% of the fair market value of the Trust each year.” They obtained that confirmation. Now, the Trustees seek to use the proposed Charitable Trust to enshrine the 3% figure as if it were a ceiling instead of a floor, with no reference whatsoever to payment of net income, contrary to the Will and the holding in Gebelein v. Belin. The Trustees should comply with Mr. duPont’s original intent, which is to pay out actual Trust income. The Trustees And Nemours Are Denying Delaware Children Access To Important Health Care Programs And Other Treatment By Putting Money Ahead Of Care 76. Finally, the inability of the Trustees and Nemours to come to terms with Mr. duPont’s intent that Delaware residents receive “first consideration” and be “properly provided for” also harms Delaware by allowing the Trustees and Nemours to erroneously conclude (or so it appears) that they can refuse to implement valuable health care programs for Delaware residents solely because such programs are not profitable, or deny treatment to otherwise Eligible Children solely because their parents do not have the right kind of insurance, and yet still give effect to Mr. duPont’s testamentary intent. 49 77. For example, in 2012, Nemours received a $3.6 million grant from the U.S. Department of Health and Human Services’ Center for Medicare and Medicaid Innovation “to implement projects that focus on delivering better health, improved care, and lower costs to people enrolled in Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP), particularly those with the highest health care needs.” Press Release, The Nemours Foundation, Optimizing Health Outcomes For Children With Asthma In Delaware (Jun. 18, 2012) (“Press Release”).12 The program targeted Delaware children with asthma who received Medicaid assistance, and achieved impressive results, with asthma-triggered emergency room visits and hospitalizations down by 40% and 33%, respectively, and school attendance up, during the program’s first two years. Id. at 1. According to Nemours CEO Dr. David Bailey, the results of the program have been such that “[w]e now know we can truly improve the care of children.” Danielle Paquette, An Obamacare Program Helped Poor Kids And Saved Money, WASH. POST, Nov. 19, 2014 (“WaPost Article”). 78. These impressive results will be for naught, because Nemours has canceled or will soon be canceling the program. The reason why, according to Nemours, is that without government funding the program “will not meet the cost of care.” Modern Healthcare, Q&A: Nemours CEO Dr. David Bailey (Jan. 10, 2015).13 According to Nemours, “[k]eeping the asthma program afloat would require slashing budgets in other areas.” WaPost Article. As Dr. Bailey describes it, he and Nemours have a dilemma: “As a doctor, I couldn’t be happier. As a business person, how do I do it? How do I pay for that?” Id. 12 Available online at http://www.nemours.org/about/mediaroom/press/dv/asthmaoutcomes.html. 13 Available online at http://www.modernhealthcare.com/article/20150110/MAGAZINE/301109953. 50 79. But this purported dilemma is a false one. Missing from Dr. Bailey’s statements, or any of Nemours’ other public statements on the fate of the asthma program, is any recognition, let alone acknowledgment, that funding and maintaining health care efforts for residents of Delaware who are Eligible Children or Eligible Elderly, even if such efforts are not financially self-sustaining (i.e., profitable), is precisely why Mr. duPont created and funded the Trust, and is precisely what the Trustees and Nemours recommitted to do in the 1980 Settlement Agreement. So the question Dr. Bailey raises has an obvious answer: Nemours can, and indeed should, direct Trust funds to sustain the asthma program and other similar Delaware health care initiatives. That the Trustees and Nemours have discretion in how they implement Mr. duPont’s vision does not mean that they can ignore it entirely. 80. Nor is this unavailability of or reduction in care limited to Nemours terminating or refusing to fund entire programs solely on the grounds of profitability. In fact, Nemours’ approach has also resulted in Eligible Children in Delaware being forced to travel out of state to obtain specialized medical care that is only available in-state at the Delaware Children’s Hospital, solely because their parents do not have the right kind of insurance. Not only does such conduct violate Nemours’ obligation under the 1980 Settlement Agreement to “communicate to every hospital in the State of Delaware its willingness and intention to treat every crippled but not incurable child in the State of Delaware, without regard to the child’s or the family’s ability to pay,” it is contrary to Mr. duPont’s clearly-expressed intent that eligible Delaware residents receive “first consideration” and be “properly provided for.” 81. Mr. duPont—who believed in “the stern necessity” to provide for “those in Delaware who are in direct need” and “the duty of everyone in the world to do what is within his power to alleviate human suffering”—would be chagrined to learn that eligible Delaware 51 children are forced to go outside of Delaware to receive medical care they could otherwise obtain from Nemours, solely because of financial considerations. As would Mr. Ball, who was justifiably proud to tell others that the Delaware Children’s Hospital had “never denied care” to Eligible Children “because of financial consideration[s].” (See, e.g., Letter, dated Nov. 1, 1974, from Edward Ball to Clifford T. Foster (“1974 Ball Letter”), at 2.)14 The Inability Of The Trustees To Come To Terms With And Properly Implement Mr. duPont’s Testamentary Intent 82. As the foregoing paragraphs have shown, Mr. duPont’s testamentary intent with respect to meeting the health care needs of Delaware residents who are Eligible Children or Eligible Elderly is clear, as are the consistent and ongoing failures of the Trustees and Nemours to come to terms with and implement that intent and the detrimental effects that failure is having on Delaware residents. As for why they have allowed this to happen, the answer to that question is, sadly, also clear: the Trustees and Nemours do not appear to believe that they have any obligation to evaluate and address the actual health care needs of Delawareans or to ensure that the operations of the Trust and Nemours maintain Mr. duPont’s intended Delaware focus. 83. As explained in the paragraphs above, a key component to the proper implementation of Mr. duPont’s mandate is a proper understanding of what it means to give “first consideration” to Delaware Beneficiaries, and what it means to ensure that the residents of Delaware are “properly provided for” before Trust income is spent in “any other state or states.” During the early years of the Trust’s existence, it appears that the Trustees correctly understood that “first consideration” and “properly provided” meant that as long as Eligible Children or Eligible Elderly in Delaware have unmet health care needs, Trust income must be directed to addressing those needs first. As Edward Ball, Mr. duPont’s brother-in-law and close confidante, 14 A copy of the 1974 Ball Letter is attached as Exhibit F. 52 and Trust Chairman and Nemours President for 46 years, described it, Delaware Beneficiaries had a “preference” with respect to those Trust income expenditures. (Ex. F, 1974 Ball Letter at 2 (“His desires and purposes were to provide care and treatment to curable handicapped children, with preference given to those handicapped children of Delaware.”) (emphasis added).) 84. However, in more recent years, it appears that the Trustees’ understanding of “first consideration” and “properly provided for” has shifted. They appear to believe that they do not have any obligation to evaluate the actual health care needs of Delawareans before directing Trust income outside of Delaware; rather, they appear to believe that so long as new programs are implemented “first” within Delaware, they can thereafter expand those programs to other jurisdictions, most notably Florida, without considering whether Delawareans have other unmet needs. This belief is reflected in an opinion memorandum from the Trust’s counsel, Holland & Knight LLP, dated August 23, 2007. Reading the provisions of the Trust as a whole, and giving effect to the phrases “first consideration” and “in each instance,” requires that we interpret the Will to mean that Nemours must first introduce each new service to the people of Delaware first. Once that service has been sufficiently funded and properly administered in the State of Delaware, Nemours is free, at the discretion of the Trustees, to introduce such a program in other geographic areas. (Opinion Memorandum from Holland & Knight LLP to Trustees of the Alfred I. duPont Testamentary Trust, dated Aug. 23, 2007 (“Holland & Knight Opinion”), at 6.)15 85. However, the term “first consideration” cannot reasonably be read to mean merely that programs need to be initiated “first” in Delaware. The Holland & Knight Memo ignores Mr. duPont’s clear direction regarding “surplus income” (Ex. A, Will, Book 5 at 60), which makes it plain that Mr. duPont directed that the individuals running Nemours (three-fifths of whom were 15 A copy of the Holland & Knight Opinion is attached as Exhibit G. 53 required to be Delawareans) were required to make sure that the people of Delaware are being “properly provided for” before they even considered giving funds out to “any other state or states.” 86. Holland & Knight elides this issue by objecting that such a reading is “impossible,” because “the Trustees are not obligated to solve all of Delaware’s health care problems before any funds can be spent elsewhere.” (Ex. G, Holland & Knight Opinion at 7.) But Holland & Knight’s objection, such as it is, lacks any support in the clear language of the Will, where it is clear that Mr. duPont envisioned that the Board of Managers of Nemours would engage in a more meaningful evaluation of the needs of crippled children and elderly residents with respect to using any funds over and above what could be spent at the one (then-envisioned) Nemours location in Delaware: no funds were to flow to institutions of “any other state or states” before “the people of Delaware needing the care of such institutions” have been “properly provided for.” (Ex. A, Will, Book 5 at 60.) Mr. duPont undoubtedly provided this guidance to ensure that Delawareans in fact received “first consideration” as he (and Mr. Ball and other early Trustees) understood the term—a preference in the expenditure of funds, something that goes well beyond just ensuring that programs are introduced in Delaware “first.” 87. The Trustees also now appear to believe that the concept of “first consideration” applies only to the annual Trust payment to Nemours. Yet with respect to any other Nemours asset of any kind, including operational revenues in excess of costs at Delaware Children’s Hospital or anywhere else, such funds are a general asset of Nemours, and thus subject to the “first consideration” obligation. 88. This becomes clear by returning again to the Will. Mr. duPont did not state that “first consideration” should be provided with respect to funds transferred from his Trust to 54 Nemours. Instead, he mandated that the very purpose of Nemours itself is to provide “first consideration” to Delawareans: my said Trustees are hereby directed to pay over, at convenient intervals, to said corporation [Nemours], the net income of my said estate, subject to the annuities and legacies hereinabove mentioned, for the purpose of maintaining the said Estate of “Nemours” as a charitable institution for the care and treatment of crippled children, but not incurables, or the care of old men or old women, and particularly old couples, first consideration, in each instance, being given to beneficiaries who are residents of Delaware. . . . (Ex. A, Will, Book 5 at 46 (emphasis added).) The Trustees’ Serious Internal Disagreement As To Whether Their Treatment Of The People Of Delaware Is Consistent With Mr. duPont’s Intent 89. Despite Holland & Knight’s bland assurances in 2007 that the only reasonable construction of “first consideration” is “first tried,” the Trustees knew then (and know now) that this is not true, because one of their own, Mr. Winfred L. Thornton, the longest-tenured Trustee by more than fifteen years, vigorously sought to persuade them otherwise. 90. This internal disagreement came to the attention of the Delaware Attorney General in August 2010, when Mr. Thornton sent a letter (“Thornton Letter”)16 describing in detail a serious disagreement among the Trustees regarding the proper interpretation of the Trust and, in particular, the Holland & Knight Opinion issued in 2007. 91. Mr. Thornton explained that “my concern is that the Opinion by Holland & Knight enables the Trust, and ultimately the Foundation, to deny the children of Delaware rights to which they are entitled in the prevention area.” (Ex. H, Thornton Letter at 1.) He noted that “relatively little was being done” on prevention “notwithstanding the fact that many areas within the State of Delaware had multiple needs,” and said that he had attempted to persuade his fellow 16 A copy of the Thornton Letter, with its included exhibits, is attached as Exhibit H. 55 Trustees and Members of Nemours at a July 18, 2007 meeting of Nemours’ Members (i.e., the Trustees) “to pursue a preventive program in Delaware directed at a full array of health needs that confronted the children of that State.” (Id. at 3.) 92. In support of his proposal, Mr. Thornton delivered a detailed, 46-page PowerPoint presentation on the meaning of “first consideration.” (Id., Ex. 4.) With extensive factual and legal support, Mr. Thornton demonstrated that the needs of Delaware residents were both paramount and unmet. He provided statistics showing Delaware with the second-highest infant mortality rate and the fifth-highest rate of low birth weight babies in the United States, and identified numerous “unmet health needs” of Delaware children, including obesity, mental health, lack of immunizations, and high rates of asthma. (Id., Ex. 4 at 6-16.) And in his conclusion, Mr. Thornton made three points that drove home just how far the Trust and Nemours have drifted from Mr. duPont’s intended mission:  Under the amended Will, we are not giving the additional children in Delaware the ‘First Consideration’ to which they are entitled.  We are using the “Delaware Valley” as the basis for calculating the spending that should be made inside the State of Delaware, as provided in the [1980 Settlement Agreement].  We are ignoring the very serious needs of the children in Delaware because we cannot receive reimbursement—decisions are being made for financial reasons[,] ignoring the needs of children. (Id., Ex. 4 at 16.) 93. Holland & Knight was present during Mr. Thornton’s presentation and rendered an “oral opinion” on his proposal. (Id. at 3.) The other Trustees rejected the proposal, and Mr. Thornton then asked Holland & Knight to provide a formal written opinion. (Id.) Yet, despite the wealth of information presented in the Thornton Presentation, and its impassioned plea regarding the Trust’s and Nemours’ ongoing failure to properly implement Mr. duPont’s 56 testamentary intent, and despite Holland & Knight being present during the presentation, the eight-page Holland & Knight Opinion only obliquely mentions Mr. Thornton’s presentation and does not make any effort to incorporate into its analysis of “first consideration” any of the issues raised by Mr. Thornton. 94. The Thornton Letter then goes on to describe his 2009 effort to have the Trustees “seek a declaratory judgment on the interpretation of the Will,” which failed because the other Trustees and Holland & Knight “have consistently rejected all attempts to seek any review of the 2004 Final Judgment.” (Id. at 4.) After consulting with counsel and concluding that “the consequences of [Holland & Knight’s] inaccurate Opinion have become painfully apparent”— reciting once again Delaware’s lagging numbers in multiple areas of child health—Mr. Thornton concludes his letter by stating that the Holland & Knight Opinion “renders a legal interpretation of the [2004 Order that] effectively modifies Mr. duPont’s Will” and allows “the responsibilities of the Trustees to appropriately address this situation [to be] ignored.” (Id. at 5-6.) The Final Straw: The Proposed Revised Charitable Trust Seeks To Rewrite The Trust In A Manner Utterly At Odds With Mr. duPont’s Intent 95. On December 22, 2011, the Trustees filed the current action to sever the Trust into a proposed charitable trust (“Proposed Charitable Trust”) and a proposed annuitants’ trust (“Proposed Annuitants’ Trust”).17 The purported justification for severing the Trust is to qualify the Proposed Charitable Trust as tax exempt, thus saving millions of dollars in tax payments it currently incurs. The Proposed Annuitants’ Trust carves out into a separate trust document the continued annuity payments Mr. duPont set forth in his Will. 17 Copies of the Proposed Annuitants’ Trust and the Proposed Charitable Trust are attached as Exhibits I and J, respectively. 57 96. The Proposed Charitable Trust would, if approved, control all fiduciary obligations of the Trustees, and eliminate large sections of Mr. duPont’s Will. The Proposed Charitable Trust states it “shall supersede completely all prior documents that otherwise might have stated, governed or controlled its terms.” (Ex. J, Proposed Charitable Trust, Art. 14.B at 22.) However, while it purports to incorporate all prior court orders and agreements impacting the Trust, its proposed terms both adopt prior amendments inconsistent with Mr. duPont’s stated intent and omit information fundamental to upholding grantor intent. Provisions Of The Proposed Charitable Trust That Are Inconsistent With Mr. duPont’s Intent 97. Failure to Provide Key Language Relating to the Board of Managers. As addressed above, the actual operations of Nemours over the years have deviated from the Delaware focus Mr. duPont directed, because the Trustees did not put in place the structural safeguards Mr. duPont developed to ensure the mission of Nemours was focused upon the needs of Delawareans. The Proposed Charitable Trust makes no mention of the Board of Managers, and contains no requirement for a majority representation on the controlling board of Nemours by Delawareans, and fails to provide clear direction as to the meaning of “first consideration” and what it would mean to “properly provide for” the people of Delaware. 98. The Proposed Charitable Trust also provides to the Trustees or to the Board of Directors powers that Mr. duPont delegated to the Board of Managers. The Trustees are granted the ability to “determine the nature and scope of the services to be offered by the Nemours Foundation. . . .” (Ex. J, Proposed Charitable Trust, Art. 5.A at 8.) To the extent that Nemours receives income from the Trust in excess of its needs in light of its existing programs, the Board of Directors of Nemours can direct such excess funds “to other charitable institutions. . . .” (Id., Art. 2.A.(3) at 3.) Yet the Board of Directors would not need to be composed of three-fifths 58 Delawareans, and the language directing the use of this discretion makes no reference to requirement that such funds be directed to Delaware institutions. While these are all powers that the Trustees and Directors already have through the 2004 Order and the Nemours Articles of Incorporation, they are inconsistent with Mr. duPont’s testamentary intent and the terms of the Trust he established. Moreover, the Proposed Charitable Trust would add to this inconsistency by giving the Board of Directors a new power, the unilateral ability to exclude from the definition of “crippled children” any “exceptions approved by the Board of Directors of the Nemours Foundation,” something entirely inconsistent with Mr. duPont’s testamentary intent, the 1972 Final Judgment, and the 1980 Settlement Agreement. 99. Failure to Require the Trustees to Pay all Income from the Trust. As discussed above, Mr. duPont directed his Trustees to pay out all income from the Trust to support Nemours, and directed Nemours to use any surplus funds to “properly provide” for Delawareans. The Proposed Charitable Trust limits that ongoing obligation to three percent. As discussed above, neither the Will nor the 1980 Settlement Agreement justify imposing this ongoing limitation upon the ability of the Trustees to pay out income permanently. 100. Failure to Provide Guidance on the Use of the Mansion and Gardens. The Proposed Charitable Trust accurately reflects the provisions of the Will that explain Mr. duPont wanted his ancestral home preserved and made available to the public. (Id., Art. 2.A.(1) at 1-2.) Missing from the Proposed Charitable Trust is any suggestion as to what the Mansion and Gardens should be used for, other than being “viewed” by the public. The Proposed Charitable Trust does not answer this question but the Will clearly does provide a “main purpose” for the use of the Mansion and Gardens. It is to be used: mainly for the purpose of providing for a library and exhibiting to the public interesting and valuable literature, works of art and any 59 articles of historic and artistic interest for the advancement of education. . . . (Ex. A, Will, Book 5 at 57.) This direction has dropped out of the Proposed Charitable Trust. It should be restored, so that future Trustees will understand the main purpose of public access to the Mansion and Gardens. 101. Provisions Improperly Contemplating that Nemours May Become a For- Profit Entity. The Proposed Charitable Trust also includes provisions addressing Trustee rights and obligations in the event the Trust dissolves and Nemours becomes a for-profit entity. None of the language is proper. The central logic of the Trust is to form and support Nemours, and the central logic of Nemours is to operate a charitable institution that provides first consideration to the health needs of Delawareans. Notwithstanding that management of Nemours may be tempted to spin off some parts of its (potentially profitable) hospital network into a for-profit enterprise, there is no scenario in which Nemours could become a for-profit entity, so the Trust need not plan for that eventuality. Indeed, having such language in the central controlling Trust document risks confusing future trustees, who will assume that language addressing such a possibility was added because such an outcome might be consistent with Grantor intent. Provisions Of The Proposed Charitable Trust Are Inconsistent With The Exercise of Trustee Fiduciary Duties 102. In addition to inclusion of provisions inconsistent with grantor intent, the Proposed Charitable Trust has provisions that run counter to basic fiduciary principles, and risk the development of an increasingly insular Board of Trustees, insulated from challenge even from other Trustees. 103. Allowing Trustees To Vote Out Dissenting Trustees. The Trustees propose to empower themselves with the ability to vote out a fellow trustee for many reasons, some of which are quite sensible (such as abandonment or inattention to the Trust). (Ex. J, Proposed 60 Charitable Trust, Art. 10.D. at 16.) However, one of those powers is the ability to vote out a fellow Trustee for “promoting or perpetuating a hostile or disharmonious relationship with the co-Trustees that substantially impairs the administration of the Trust. . . .” (Id., Art. 10.D. at 16.) There is a long history of dissension amongst Trustees on this Trust. Yet each fiduciary is obligated to fulfill his or her fiduciary duties as they see fit, and if a fiduciary believes that to fulfill his or her fiduciary duty, they need to raise questions about the direction of a trust, such questioning should not be prevented in the name of policing a “harmonious relationship” with other trustees. This language would risk the development of an insular board of trustees and is fundamentally inconsistent with fiduciary obligations. 104. Excusing A Trustee From Correcting An Ongoing Breach Of Trust. The Proposed Charitable Trust suggests that trustees should be insulated from liability for a failure to redress any ongoing breach of trust. (Id., Art. 9.F. at 15.) This unusual protection would excuse trustees from correcting the direction of a Trust that has drifted from grantor intent. The obligation of a fiduciary to act consistent with grantor intent cannot be excused because prior trustees have acted inconsistent with that intent. 105. Allowing An Improper Delegation Of Power By Trustees To Other Trustees. The Proposed Charitable Trust contemplates a highly unusual delegation of “non-voting powers” to other Trustees, and such delegation can, through successive renewals, go on indefinitely. (Id., Art. 9.A. at 12-13.) The document appears to contemplate that this delegation can be “revoked at any time,” but then goes on to suggest that the decision to delegate such powers can be forced upon a dissenting trustee: “A dissenting Trustee who did not consent to the delegation of authority to another Trustee and who has not joined in the exercise of a power or discretion cannot be held liable for the consequences of that exercise.” (Id., Art. 9.A. at 13.) If this 61 language is aimed at delegating operational management powers for various investments or Trust assets to a management team, it is not clear why it contemplates delegating such powers to another “Trustee,” as opposed to an agent for the trustees collectively. Indeed, the next section (Id., Art. 9.B. at 13) appears to address this more typical scenario, and so the delegation of powers amongst trustees appears simply aimed at consolidating total power within the hands of some subset of the trustees. How this would facilitate the operation of a true board of fiduciaries (each with an independent and co-equal fiduciary duty) is unclear. 106. Insulating Trustees From Claims Of Personal Liability. The Proposed Charitable Trust attempts to eliminate all liability for a trustee other than “willful default.” (Id., Art. 9.E. at 14-15.) Mr. duPont directed that his trustees shall have no liability to the beneficiaries of the Trust, so long as they act “honestly and in good faith.” (Ex. A, Will, Book 5 at 21.) 107. Allowing Trustee Emeritus Status After A Violation Of Trust Obligations. The Trustee Emeritus position was established through the 2004 proceeding. It was justified at that time as a solution to the increasing size and complexity of the Trust, along with the fact that Mr. duPont provided no provision for the retirement of his trustees. The Proposed Charitable Trust enshrines this unusual benefit. (Ex. J, Proposed Charitable Trust, Art. 10.G. at 18-19.) Remarkably, the Proposed Charitable Trust contemplates emeritus status being an option even for a trustee found by unanimous vote of the other trustees to have committed fundamental breaches of duty. (Id., Art. 10.D.(3)(d) at 17.) Any such outcome would be a clear waste of Trust assets, and there is no basis to incorporate an option to grant such an unusual benefit to a derelict trustee into the controlling trust document. 62 108. Allowing Trustees To Unilaterally Modify Trust Terms. The Proposed Charitable Trust includes a provision authorizing the trustees “in their sole discretion,” with approval of 75% of the trustees, to “amend the Trust” without court approval for delineated purposes. (Id., Art. 12 at 20-21.) The power is not applicable to all Trust provisions; Articles Two, Four, Five, Six, Ten, Eleven and Twelve require Court approval. Yet Article Seven, which regulates the powers of trustees, is left out; as is Article Eight, requiring the provision of accounts; Article Nine, addressing delegation of trustee powers; and Article Fourteen (Definitions, Miscellaneous). 109. In light of the deviation from Mr. duPont’s intent over the years, and the diversion of control and assets from Delaware to Florida, the Trustees should not now be granted the ability to deviate even further from Mr. duPont’s intent of their own accord, with no judicial oversight or approval. 110. The Delaware Attorney General has performed all conditions precedent to the commencement of this action, or such conditions have occurred or have been waived. CLAIMS FOR RELIEF COUNT ONE — DECLARATORY JUDGMENT (Declaration That Delaware Beneficiaries Must Receive First Consideration Until The People Of Delaware Needing Care Are Properly Provided For) 111. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 112. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110 above. 113. The Delaware Beneficiaries have a “special interest in the enforcement of the duPont Trust,” and “a special status not enjoyed by the public at large.” State of Delaware ex 63 rel. Gebelein v. Fla. First Nat’l Bank of Jacksonville, 381 So.2d 1075, 1078 (Fla. 1st DCA 1979). 114. The Delaware Attorney General, as the acknowledged representative of the Delaware Beneficiaries, has standing to enforce the terms of the Trust, to represent the interests of the Delaware Beneficiaries, and to enforce the rights of the Delaware Beneficiaries under the Florida Trust Code, the common law, and principles of equity. Section 736.0405(3), Florida Statutes (2015); State of Delaware ex rel. Gebelein, 381 So.2d at 1078; Milton v. Milligan, 2013 WL 828607, *3-4 (N.D. Fla. Mar. 5, 2013). 115. The manner in which the Trustees have operated the Trust with respect to giving first consideration to Delaware Beneficiaries is fundamentally inconsistent with Mr. duPont’s clearly expressed intent. 116. Under the Florida Declaratory Judgment Act, this Court has the jurisdiction “to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed,” including determining the existence of “any immunity, power, privilege, duty, or right.” Section 86.011, Florida Statutes (2015). 117. Similarly, under the Florida Trust Code, this Court has the power to determine “any question” concerning the construction of trust instruments, to determine the existence of “any immunity, power, privilege, duty, or right,” and to determine “any other matter involving trustees and beneficiaries,” and to allow a party to “obtain a declaration of rights.” Section 736.0201(4)(e)-(g), Florida Statutes (2015). 118. There is a real and present dispute between the Delaware Attorney General, as the representative of the Delaware Beneficiaries, and the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, as their interests may appear, regarding the proper 64 interpretation and construction of the Trust with respect to the meaning of the term “first consideration.” The Trust language must be interpreted and the operational structure of Nemours must be returned to a form that effectuates Mr. duPont’s clearly manifested intent, consistent with the obligation under Florida law to follow and give effect to a grantor’s true intent. 119. The Delaware Attorney General is in doubt and uncertain of his rights and the rights of the people of the State of Delaware with respect to this issue, and there is a bona fide, actual, present, and practical need for a judicial declaration as to the proper interpretation and construction of the term “first consideration.” 120. The Delaware Attorney General is entitled to have his doubt and uncertainty resolved by a declaration of these rights by the Court. 121. The Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General are all of the other parties that have an interest in this declaration of rights sought by the Delaware Attorney General. WHEREFORE, the Delaware Attorney General demands judgment against the Counterclaim Defendants and Crossclaim Defendants, declaring that Mr. duPont’s intent as the grantor of the Trust was that all income provided from the Trust to Nemours, and all other assets available to Nemours, including operating revenues, would be used to address the needs of all Eligible Children or Eligible Elderly in Delaware before any of it could be used for such purposes outside Delaware. COUNT TWO — DECLARATORY JUDGMENT (Declaration That Delaware Residents Must Comprise At Least Three-Fifths Of The Controlling Board Of Nemours) 122. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 65 123. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 114, and 116 through 117 above. 124. As set forth above, Mr. duPont specifically directed in his Will that Delaware residents must comprise at least three-fifths of the controlling board of Nemours, and such direction should control irrespective of the specific name Nemours gives to the board that controls its operations. The Trustees have failed to comply with this direction, and deny that the manner in which they have caused Nemours to be organized is inconsistent with Mr. duPont’s testamentary intent. 125. There is a real and present dispute between the Delaware Attorney General, as the representative of the Delaware Beneficiaries, and the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, as their interests may appear, regarding the proper interpretation and construction of the Trust with respect to whether Delaware residents must comprise at least three-fifths of the controlling board of Nemours. The Trust language must be interpreted and the operational structure of Nemours must be returned to a form that effectuates Mr. duPont’s clearly manifested intent, consistent with the obligation under Florida law to follow and give effect to a grantor’s true intent. 126. The Delaware Attorney General is in doubt and uncertain of his rights and the rights of the people of the State of Delaware with respect to this issue, and there is a bona fide, actual, present, and practical need for a judicial declaration as to the proper interpretation and construction of the Will as to this issue. 127. The Delaware Attorney General is entitled to have his doubt and uncertainty resolved by a declaration of these rights by the Court. 66 128. The Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General are all of the other parties that have an interest in this declaration of rights sought by the Delaware Attorney General. WHEREFORE, the Delaware Attorney General demands judgment against the Counterclaim Defendants and Crossclaim Defendants, declaring that Delaware residents must comprise at least three-fifths of the membership of the board that exercises actual control over the operations of Nemours, irrespective of the name which the Trustees or Nemours choose to give to that board. COUNT THREE — DECLARATORY JUDGMENT (Declaration That The Mansion And Gardens Be Used For The Purpose Of Providing For A Library And Exhibitions To The Public) 129. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 130. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 114, and 116 through 117 above. 131. As set forth above, Mr. duPont provided specific instructions regarding how the Trustees and Nemours were to maintain and use the Mansion and Gardens for the public’s benefit. By reason of the actions of the Trustees, and of the Board of Directors and Board of Managers of Nemours, acting at the direction and behest of the Trustees, the Mansion and Gardens are not being used for the benefit of the public or the advancement of education in the manner intended by Mr. duPont. The Trustees’ and Nemours’ administration of the Mansion and Gardens is another example of the Trustees’ deviation, over time, from Mr. duPont’s testamentary intent. 67 132. There is a real and present dispute between the Delaware Attorney General, as the representative of the Delaware Beneficiaries, and the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, as their interests may appear, regarding the proper interpretation and construction of the Trust with respect to the proper use and purpose of the Mansion and Gardens. 133. The Delaware Attorney General is in doubt and uncertain of his rights and the rights of the people of the State of Delaware with respect to this issue, and there is a bona fide, actual, present, and practical need for a judicial declaration as to the proper interpretation and construction of the Will as to this issue. 134. The Delaware Attorney General is entitled to have his doubt and uncertainty resolved by a declaration of these rights by the Court. 135. The Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General are all of the other parties that have an interest in this declaration of rights sought by the Delaware Attorney General. WHEREFORE, the Delaware Attorney General demands judgment against the Counterclaim Defendants and Crossclaim Defendants, declaring that the Mansion and Gardens must be used “mainly for the purpose of providing for a library and exhibiting to the public interesting and valuable literature, works of art and any articles of historic and artistic interest for the advancement of education,” as Mr. duPont clearly and unambiguously directed in his Will, and declaring that the manner in which the Mansion and Gardens are currently being made available to the public is inconsistent with the Will. 68 COUNT FOUR— DECLARATORY JUDGMENT (Declaration That The Trustees And Nemours May Not Refuse To Fund Appropriate Programs For Or Provide Care To Eligible Delaware Residents Solely Due To Financial Consideration) 136. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 137. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 114, and 116 through 117 above. 138. Neither Mr. duPont’s Will nor the 1980 Settlement Agreement allows the Trustees and Nemours to terminate or refuse to implement appropriate health care programs for Delaware Beneficiaries solely because such programs are not profitable, nor do they permit the Trustees and Nemours to deny otherwise available care to Delaware Beneficiaries solely because they are unable to pay or do not have acceptable insurance. 139. Despite this, the Trustees and Nemours are in fact terminating, threatening to terminate, or refusing to implement appropriate health care programs for Delaware Beneficiaries, or denying them access to otherwise available care, solely on those grounds. 140. There is a real and present dispute between the Delaware Attorney General, as the representative of the Delaware Beneficiaries, and the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, as their interests may appear, regarding the ability of the Trustees and Nemours, under Mr. duPont’s Will and the 1980 Settlement Agreement, to terminate or refuse to implement appropriate health care programs for eligible Delaware residents solely on grounds of profitability to Nemours, or to deny otherwise available care to eligible Delaware residents solely because those residents are unable to pay or do not have acceptable insurance to pay for such care. 69 141. The Delaware Attorney General is in doubt and uncertain of his rights and the rights of the people of the State of Delaware with respect to this issue, and there is a bona fide, actual, present, and practical need for a judicial declaration as to the proper interpretation and construction of the Will and the 1980 Settlement Agreement as to this issue. 142. The Delaware Attorney General is entitled to have his doubt and uncertainty resolved by a declaration of these rights by the Court. 143. The Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General are all of the other parties that have an interest in this declaration of rights sought by the Delaware Attorney General. WHEREFORE, the Delaware Attorney General demands judgment against Counterclaim Defendants and Crossclaim Defendants, declaring that neither the Will nor the 1980 Settlement Agreement authorizes Nemours or the Trustees, as Members or Directors of Nemours, to terminate or refuse to implement appropriate health care programs for eligible Delaware residents solely on the ground that the programs are not or will not be profitable for Nemours, or to deny otherwise available care to eligible Delaware residents solely because those residents are unable to pay or do not have acceptable insurance. COUNT FIVE— DECLARATORY JUDGMENT (Improper Calculation Of Distributable Trust Income And Failure To Spend At Least 50% Of Annual Distribution Of Trust Income In Delaware) 144. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 145. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 114, and 116 through 117 above. 70 146. As set forth above, when the Trustees entered into the 1980 Settlement Agreement, they agreed to pay out on annual basis the higher of the Trust’s net income or 3% of the Trust’s assets, in order to comply with both the Will and Florida’s unproductive property statute. They have, however, consistently ignored the “higher of” part of their commitment and limited Trust payments to 3% of assets. 147. The Trustees and Nemours have improperly allocated to Delaware the renovation and operational expenses for the Mansion and Gardens, in violation of the Will, which has caused Nemours’ expenditure of the Trust’s annual distribution of income within Delaware to fall below 50% of the Trust’s annual distribution amount, in violation of the 1980 Settlement Agreement. 148. The Trustees and Nemours have improperly allocated to Delaware the expenditures made by Nemours in the Delaware Valley—e.g., expenditures for Clinics in Pennsylvania, New Jersey, and Maryland—which has caused Nemours’ expenditure of the Trust’s annual distribution of income within Delaware to fall below 50% of the Trust’s annual distribution amount, in violation of the 1980 Settlement Agreement. 149. The Trustees and Nemours have improperly allocated to Delaware a disproportionate amount of “Corporate and Shared Services” expenses incurred by Nemours, which has caused Nemours’ expenditure of the Trust’s annual distribution of income within Delaware to fall below 50% of the Trust’s annual distribution amount, in violation of the 1980 Settlement Agreement. 150. There is a real and present dispute between the Delaware Attorney General, as the representative of the Delaware Beneficiaries, and the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, as their interests may appear, regarding the 71 calculation and payment of Trust distributions and the allocation of the aforementioned expenditures by Nemours. 151. The Delaware Attorney General is in doubt and uncertain of his rights and the rights of the people of the State of Delaware with respect to this issue, and there is a bona fide, actual, present, and practical need for a judicial declaration as to the proper interpretation and construction of the 1980 Settlement Agreement as to this issue. 152. The Delaware Attorney General is entitled to have his doubt and uncertainty resolved by a declaration of these rights by the Court. 153. The Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General are all of the other parties that have an interest in this declaration of rights sought by the Delaware Attorney General. WHEREFORE, the Delaware Attorney General demands judgment against Counterclaim Defendants and Crossclaim Defendants, declaring the following: a. The 1980 Settlement Agreement requires the Trustees to distribute to Nemours, on an annual basis, the higher of the Trust’s net income or 3% of the fair market value of the assets; b. All expenses for renovating, maintaining, and operating the Mansion and Gardens must be paid out of Trust principal or income before any distribution of Trust income is made to Nemours, and those expenses cannot be allocated to or charged against Delaware or any other state; c. Trust income spent by Nemours can only be allocated or charged to Delaware under the 1980 Settlement Agreement if the funds so allocated or charged are spent inside the borders of the State of Delaware; 72 d. Expenditures by Nemours for “Corporate and Shared Services” that are allocated to Delaware, or any other state, must be fairly, equitably, and proportionately allocated. COUNT SIX — DECLARATORY JUDGMENT (Declaration That The Terms Of The Proposed Charitable Trust Are Inconsistent With Mr. duPont’s Clearly-Expressed Intent And With The Proper Functioning Of A Fiduciary Board) 154. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 155. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 114, 116 through 117, and 131 above. 156. The Delaware Attorney General does not object in concept to a severance of the Testamentary Trust into an annuitants’ trust and a charitable trust, which will achieve significant tax savings, or to the amendment and restatement of an annuitants’ trust and a charitable trust, which will be important to the proper administration of those trusts, particularly with respect to the Delaware Beneficiaries, as well as the parties charged with the administration, oversight, and enforcement of the trusts. 157. However, the terms of any restated charitable trust must reflect the testamentary intent of Mr. duPont as expressed in his Will, and they must be consistent with the proper exercise of a trustee’s fiduciary duties. Accordingly, the Delaware Attorney General, as the representative of the Delaware Beneficiaries, objects to the judicial modifications proposed in the Proposed Charitable Trust following the severance, on the grounds set forth in paragraphs 95 through 109 above. 73 158. There is a real and present dispute between the Delaware Attorney General, as the representative of the Delaware Beneficiaries, and the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, as their interests may appear, regarding the propriety of the Proposed Charitable Trust and the relief sought by the Trustees in the Complaint. The Delaware Attorney General is in doubt and uncertain of his rights and the rights of the people of the State of Delaware with respect to this issue, and there is a bona fide, actual, present, and practical need for a judicial declaration as to this issue. WHEREFORE, the Delaware Attorney General demands judgment against Counterclaim Defendants and Crossclaim Defendants, declaring that the terms of the proposed Charitable Trust are inconsistent with Mr. duPont’s testamentary intent and with the proper functioning of a trustee’s fiduciary duties, and denying the Trustees’ the relief sought in their complaint. COUNT SEVEN — DECLARATORY JUDGMENT (Declaration That The Delaware Attorney General Is Entitled To Notice, Information, Accountings, And Reports Relating To The Trust) 159. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 160. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 115 through 117, and 146 through 149 above. 161. More than 35 years ago, the Florida First District Court of Appeal applied common law trust principles to rule that the people of Delaware—meaning the Delaware Beneficiaries—have “a special interest in the enforcement of the duPont Trust” and “a special status not enjoyed by the public at large.” State of Delaware ex rel. Gebelein v. Fla. First Nat’l Bank of Jacksonville, 381 So.2d 1075, 1077-78 (Fla. Ct. App. 1979). 74 162. As a result, the Delaware Beneficiaries were—and are—entitled to bring suit to enforce the terms of the Trust and to protect their rights under the Florida Trust Code, the common law, and principles of equity. The Delaware Attorney General, as the acknowledged representative of the Delaware Beneficiaries, has standing to enforce the terms of the Trust, to represent the interests of the Delaware Beneficiaries, and to protect their rights. Section 736.0405(3), Florida Statutes (2015); State of Delaware ex rel. Gebelein, 381 So.2d at 1078; Milton v. Milligan, 2013 WL 828607, *3-4 (N.D. Fla. Mar. 5, 2013); see also Section 736.0106, Florida Statutes (2015) (“The common law of trusts and principles of equity supplement this code, except to the extent modified by this code or another law of this state.”). 163. It has long been the case that the Florida law of trusts imposes on trustees fiduciary standards of openness and transparency in their administration of a trust, with resultant duties to provide notice and disclose information to beneficiaries, and to maintain and make available records of trust administration and assets, including for purposes of permitting an accounting. The reason for these requirements is that beneficiaries are entitled to have information about the trust provided to them—or to someone authorized to act on their behalf— so that appropriate action can be taken to protect their interests if circumstances warrant. 164. The Delaware Beneficiaries, who “have a special interest in the enforcement of the duPont Trust” and “a special status not enjoyed by the public at large,” are entitled to notice, information, accountings, and reports regarding the Trust, and the Delaware Attorney General, as the acknowledged representative of the Delaware Beneficiaries, is entitled to assert these rights on behalf and for the benefit of the Delaware Beneficiaries. 165. Moreover, the Delaware Attorney General’s ability to assert these rights on behalf and for the benefit of the Delaware Beneficiaries is consistent with the long-recognized principle 75 that trust beneficiaries are entitled to impartial, unconflicted representation from those who act on their behalf. The claims asserted by the Trustees in their Complaint, and those asserted by the Delaware Attorney General here, present clear conflicts between the interests of the Delaware Beneficiaries and those of potential Trust beneficiaries in states other than Delaware. Unless the Delaware Attorney General is able to act on behalf and for the benefit of the Delaware Beneficiaries, the Delaware Beneficiaries’ special status, and their special interest in the Trust’s enforcement, will not be fully protected with respect to such conflicts, because there is no one person or entity capable of providing impartial, unconflicted representation to all of the Trust’s beneficiaries. 166. There is a real and present dispute between the Delaware Attorney General, the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General as to whether the Delaware Beneficiaries, who “have a special interest in the enforcement of the duPont Trust” and “a special status not enjoyed by the public at large,” are entitled to notice, information, accountings, and reports regarding the Trust, whether the Delaware Beneficiaries are required to be joined as a party in any proceeding seeking to amend, modify, deviate, reform, interpret or otherwise change or deviate from any term of the Trust, and whether the Delaware Attorney General, as the authorized representative of the Delaware Beneficiaries, is entitled to assert these rights on behalf of and for the benefit of the Delaware Beneficiaries. 167. The Delaware Attorney General is in doubt and uncertain of his rights and the rights of the Delaware Beneficiaries to notice and various information, and there is a bona fide, actual, present, and practical need for a judicial declaration as to the Delaware Attorney General’s rights to notice, information, accountings, and reports relating to the Trust. 76 168. The Delaware Attorney General is entitled to have his doubt and uncertainty resolved by a declaration of these rights by the Court. 169. The Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, are all of the other parties that have an interest in this declaration of rights sought by the Delaware Attorney General. WHEREFORE, the Delaware Attorney General demands judgment against all Counterclaim Defendants and Crossclaim Defendants, declaring that the Delaware Attorney General, as the lawful and authorized representative of the Delaware Beneficiaries, is entitled to receive from the Trustees, on behalf and for the benefit of the Delaware Beneficiaries, each of the following: a. Notice of any action to amend, modify, deviate, reform, interpret, or otherwise change or deviate from any term of the Trust; b. Upon request made in writing to the Trustees, information regarding the c. Upon request made in writing to the Trustees, any periodic or special Trust; accounting of the Trust as prepared by or for the Trustees; and d. Upon request made in writing to the Trustees, reports regarding the administration, operation, and performance of the Trust. COUNT EIGHT — DECLARATORY JUDGMENT (Declaration That The Delaware Attorney General May Assert the Rights of a Qualified Beneficiary) 170. This is an action against Counterclaim Defendants and Crossclaim Defendants for declaratory and supplemental relief, pursuant to Chapter 86 and Section 736.0201(4)(e)-(g), Florida Statutes (2015). 77 171. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 117, 146 through 149, and 162 through 165 above. 172. As detailed above, the Will expressly directs the Trustees to give “first consideration . . . in each instance to beneficiaries who are residents of Delaware” (Ex. A, Will, Book 5 at 56), and requires the Trustees and Nemours to ensure that the residents of Delaware are “properly provided for” before surplus Trust income can be spent in “any other state or states” (Ex. A, Will, Book 5 at 60). 173. As a consequence of the foregoing provisions, among others, within the Will, in 1979, the Florida First District Court of Appeal held that the Delaware Beneficiaries of this specific Trust have “a special interest in the enforcement of the duPont Trust.” The Court continued: “The terms of the trust give the people of Delaware a special status not enjoyed by the public at large. The Attorney General of Delaware represents the people of Delaware and is the proper party to bring suit on their behalf.” State of Delaware ex rel. Gebelein, 381 So. 2d at 1077-78. 174. In 2006, the Florida Legislature adopted the Florida Trust Code. The Florida Trust Code affords specific rights to “qualified beneficiaries,” who are defined to include any “charitable organization expressly designated to receive distributions under the terms of a charitable trust if the charitable organization, on the date the charitable organization’s qualification is being determined: (a) is a distributee or permissible distributee of trust income or principal; (b) would be a distributee or permissible distributee of trust income or principal on termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions; or (c) would be a distributee or permissible distributee of trust 78 income or principal if the trust terminated on that date.” Section 736.0110(1), Florida Statutes (2015). 175. Additionally, the Florida Trust Code affords the Florida Attorney General the authority to assert the rights of a qualified beneficiary with respect to a charitable trust having its principal place of administration in Florida. This authority recognizes the Florida Attorney General’s responsibility to represent the interests of the public at large in the charitable trust. Section 736.0110(3), Florida Statutes (2015). 176. The 1980 Settlement Agreement, under which both the Florida Attorney General and the Delaware Attorney General were separate parties, demonstrates that as to the Trust, each official was representing separate and distinct interests. In fact, the 1980 Settlement Agreement states as much. The Florida Attorney General, representing the interests of the public at large, could not and cannot simultaneously represent the interests of the Delaware Beneficiaries, whose special status is not enjoyed by the public at large, on questions that relate to the particular rights of Delaware Beneficiaries. 177. Moreover, the 1980 Settlement Agreement confirms that the Delaware Beneficiaries are entitled under the Trust to specific treatment not enjoyed by the public at large. The 1980 Settlement Agreement echoes the Will’s “first consideration” directive in stating “Trustees agree that at no time will more than fifty percent (50%) annually of the funds distributed by the Trust to Nemours be spent outside the State of Delaware.” (Ex. B, 1980 Settlement Agreement, ¶ F(3) at 5 (emphasis added).) This minimum threshold requiring that no less than fifty percent (50%) annually of the funds distributed by the Trust to Nemours be spent within Delaware supplements but does not replace the overriding requirement that the Delaware Beneficiaries still receive “first consideration.” (Ex. B, 1980 Settlement Agreement, ¶ F(4) at 5.) 79 178. By reason of the foregoing, each of the Florida Attorney General and the Delaware Attorney General have separate and distinct rights under the 1980 Settlement Agreement which each, as separate parties and separate signatories to the agreement, are entitled and obligated to enforce for their separate and distinct constituencies. This dynamic creates an inherent conflict which prevents the Florida Attorney General from representing at the same time the interests of the Delaware Beneficiaries and the public at large with respect to questions that relate to the rights of Delaware Beneficiaries, including how benefits from the Trust are intended to flow in light of the “first consideration” and “properly provided for” requirements, and in light of the provisions in the 1980 Settlement Agreement designed to protect Delaware interests. 179. The claims asserted by the Trustees in their Complaint, and those asserted by the Delaware Attorney General here, present clear conflicts between the interests of the Delaware Beneficiaries and the interests of the public at large, including potential Trust beneficiaries in states other than Delaware. Both sets of beneficiaries—those within Delaware and those without—are entitled to impartial, unconflicted representation of their interests with respect to the matters presented in this action, which is implied in the Florida Trust Code itself. 180. Here, with respect to this specific Trust, this divergence necessarily contemplates more than one person or entity being able to assert the rights of a qualified beneficiary for purposes of the Florida Trust Code. The Florida Attorney General, consistent with her common law status as the legal representative of the “public at large” with respect to charitable trusts, can assert the rights of qualified beneficiaries under the Florida Trust Code with respect to issues affecting the public at large, without regard to residence, as well as potential Trust beneficiaries residing in states other than Delaware. However, the Delaware Attorney General, consistent with the Gebelein Court’s recognition of his status as the lawful representative of the Delaware 80 Beneficiaries, must be able to assert the rights of qualified beneficiaries under the Florida Trust Code with respect to the Delaware Beneficiaries. 181. Granting the Delaware Attorney General status to assert the rights of a qualified beneficiary would be in addition to, and not in substitution for, the parallel right of the Florida Attorney General to assert such rights. 182. There is a real and present dispute between the Delaware Attorney General, and the Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General, as to whether, solely for purposes of this specific Trust, the Delaware Attorney General, as the lawful, authorized representative of the Delaware Beneficiaries is entitled to assert the rights of a qualified beneficiary, as that term is defined in the Florida Trust Code. 183. The Delaware Attorney General is in doubt and uncertain of his right to assert the rights of a qualified beneficiary, and there is a bona fide, actual, present, and practical need for a declaration as to the Delaware Attorney General’s right to assert the rights of a qualified beneficiary. 184. The Trustees, Nemours, the Florida State Attorney, and the Florida Attorney General are all of the other parties that have an interest in this declaration of rights sought by the Delaware Attorney General. WHEREFORE, the Delaware Attorney General demands judgment against Counterclaim Defendants and Crossclaim Defendants, declaring, for the purposes of this specific Trust, that the Delaware Attorney General, as the lawful and authorized representative of the Delaware Beneficiaries, is entitled to assert the rights of a qualified beneficiary, as that term is defined in the Florida Trust Code. 81 COUNT NINE — BREACH OF TRUST AND REQUEST FOR AN ACCOUNTING (Failure To Provide Accurate And Timely Information On And To Account For The Activities Of The Trust) 185. This is an action for relief against the Trustees, arising by reason of breaches of trust, seeking an accounting of the Trust and other supplemental relief based upon the equitable right of a beneficiary to an accounting, and Sections 736.0813 and 736.1001, Florida Statutes (2015). 186. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 115, 117, 146 through 149, 162 through 165, and 172 through 181 above. 187. In their administration of the Trust the Trustees are bound by the following duties, among others: a. The duty to administer the Trust in good faith and in accordance with its terms and purposes and the interests of the beneficiaries. Section 736.801, Florida Statutes (2015). b. The duty to administer the Trust solely in the interests of the beneficiaries. Section 736.802, Florida Statutes (2015). c. The duty of impartiality. Section 736.803, Florida Statutes (2015). d. The duty of prudent administration. Section 736.804, Florida Statutes (2015). 188. The Trustees have breached the foregoing duties in their administration of the Trust, and by reason thereof, and pursuant to Sections 736.0105(2)(s), 736.0105(2)(t), and 736.0813, Florida Statutes (2015), the Trustees owe the Delaware Beneficiaries a duty to inform and account. 82 189. The Trustees’ duty to inform and account includes the requirement to provide an annual trust accounting which sets forth, in writing, inter alia: all cash and property transactions; all significant transactions affecting administration during the accounting period, including compensation paid to the Trustees and the Trustees’ agents; gains and losses realized during the accounting period; all receipts and disbursements; identification and valuation of trust assets; each known non-contingent liability; significant transactions that do not affect the amount for which the Trustees are accountable; and allocation of receipts, disbursements, accruals or allowances between income and principal when the allocation affects the interest of any beneficiary of the trust. Section 736.08135(2)(a)-(f), Florida Statutes (2015). 190. Implicit in this duty to account and inform is the requirement that the Trustees provide accurate and timely accountings which are consistent with generally accepted accounting principles and other applicable financial reporting standards. 191. The Trustees have failed, inter alia, to account to the Delaware Attorney General, as the representative of the Delaware Beneficiaries, for the net income of the assets of the Trust as of December 31 for at least the years 2005 to the present, such that the Delaware Attorney General cannot determine whether the Trust has paid to Nemours, on or before April 15 of each year, the higher of (1) the net income of the Trust or (2) an amount equal to three percent (3%) of the fair market valuation of the assets as of December 31 of each consecutive year after 1979 pursuant to Section C of the 1980 Settlement Agreement (the “Proper Nemours Distribution”). 192. The Trustees have failed to account properly for expenses incurred by the Trust to renovate, remodel, and operate the Mansion and Gardens by paying for those expenses out of Trust principal or Trust income before determining the amount of Trust income available for distribution to Nemours, and have instead improperly allocated those expenses to Delaware after 83 making the annual distribution of Trust income to Nemours. Financial statements provided to the Delaware Attorney General by the Trustees show that all expenses for the Mansion and Gardens have been allocated to Delaware, including more than $8.8 million in 2005, more than $10.5 million in 2006, more than $29 million in 2007, more than $14 million in 2008, and more than $4 million in 2009. 193. The Trustees have failed in their obligations to inform and account to the Delaware Attorney General, as the representative of the Delaware Beneficiaries, and they have been unwilling or unable to answer important questions regarding the Proper Nemours Distribution, the allocation of Mansion and Gardens expenditures, and other accounting matters pertaining to the Trust and Nemours. 194. The Trustees’ failure constitutes a breach of the Trustees’ duty to inform and account under Sections 736.0813(1)(d) and 736.08135(2), Florida Statutes (2015), which impairs the ability and authority of the Delaware Attorney General to effectively monitor and enforce the terms of the Trust on behalf of the Delaware Beneficiaries. WHEREFORE, the Delaware Attorney General demands judgment against the Trustees and demands that the Court: a. Order the Trustees to inform and account and to administer the Trust in good faith and impartially, pursuant to Sections 736.1001(2)(a) and (j), and to provide a full accounting to the Delaware Attorney General, pursuant to Sections 736.0813, 736.1001(2)(a) and 2(d), Florida Statutes (2015), as well as a beneficiary’s equitable right to an accounting, of the net income and fair market value of the assets of the Trust as of December 31 of each calendar year from 2005 through the date upon which a judgment shall be entered hereon; 84 b. Order the Trustees to provide a full accounting to the Delaware Attorney General, pursuant to Sections 736.0813, 736.1001(2)(a) and 2(d), Florida Statutes (2015), as well as a beneficiary’s equitable right to an accounting, of the income received by Nemours from the Trust for calendar years 2005 through the date upon which a judgment shall be entered hereon, with said accounting to include a clear enumeration of all disbursements for the renovation and operation of the Mansion and Gardens, and the allocation of and underlying detail for such disbursements, pursuant to Sections 736.813(d) and 736.08135(2), Florida Statutes (2015); c. Order that such accounting be conducted by an accounting firm agreed upon by all parties to this action; d. Order the Trustees to pay a corrective distribution to Nemours from the Trust, pursuant to Section 736.1001(3)(a), Florida Statutes (2015), together with interest, if and when such accounting confirms that the Trustees have failed to pay the Proper Nemours Distribution for each affected year, with said corrective distribution to be in the amount equal to the difference of what was paid from the Trust to Nemours for the years accounted for and the amount of the Proper Nemours Distribution, as determined by such accounting; e. Order the Trustees to pay a corrective distribution for the benefit of Delaware Beneficiaries, pursuant to Section 736.1001(3)(a), Florida Statutes (2015), together with interest, if and when such accounting demonstrates that the Trustees improperly allocated to Delaware expenses incurred by the Trust to renovate, repair, and operate the Mansion and Gardens, with said corrective distribution to be in an amount 85 equal to the sum paid for Mansion and Gardens renovations which was allocated to Delaware each affected year; and f. Order such other and further relief as this Court deems just and proper pursuant to Section 736.1001(2)(j), Florida Statutes (2015). COUNT TEN — BREACH OF CONTRACT AND REQUEST FOR AN ACCOUNTING (Breach Of 1980 Settlement Agreement For Failure To Spend At Least 50% Of Annual Distribution Of Trust Income In Delaware And Request For An Accounting) 195. This is an action against the Trustees and Nemours for breach of the 1980 Settlement Agreement, seeking damages in an amount exceeding $15,000.00, exclusive of interest and costs, and for an accounting as a result of the Trustees’ and Nemours’ breach of the 1980 Settlement Agreement. 196. The Delaware Attorney General realleges and incorporates herein his allegations in paragraphs 1 through 110, 113 through 114, and 117 above. 197. Under the 1980 Settlement Agreement, the Trustees are obligated each year to “pay over to . . . Nemours” the higher of “the net income of the Trust, or the statutory amount of three percent (3%) of the fair market valuation of the assets [of the Trust].” (1980 Settlement Agreement, ¶ C at 3.) Nemours, as the recipient of those funds, owes an obligation to the Delaware Beneficiaries to see that at least 50% of the Trust’s net income is expended within Delaware. (Id., ¶ F(3)-(4) at 5.) 198. The Delaware Beneficiaries are dependent on the Trustees and Nemours to spend at least 50% of the Trust’s annual distribution of net income within Delaware. 199. The Trustees and Nemours have breached the 1980 Settlement Agreement by failing to account properly for expenses incurred by the Trust to renovate, remodel, and operate the Mansion and Gardens, and by improperly allocating those expenses to Delaware after making 86 the annual distribution of Trust income to Nemours. Financial statements provided to the Delaware Attorney General by the Trustees show that all expenses for the Mansion and Gardens have been allocated to Delaware, including more than $8.8 million in 2005, more than $10.5 million in 2006, more than $29 million in 2007, more than $14 million in 2008, and more than $4 million in 2009. This has caused Nemours’ expenditure of the Trust’s annual distribution of income within Delaware to fall below 50% of the Trust’s annual distribution amount, in violation of the 1980 Settlement Agreement. 200. The Trustees and Nemours have breached the 1980 Settlement Agreement by failing to account properly for expenditures made outside of Delaware, particularly expenditures made in New Jersey and Pennsylvania, by improperly allocating to Delaware expenditures made by Nemours in the Delaware Valley (i.e., Pennsylvania, New Jersey, and Maryland) instead of separately allocating and reporting those expenditures on a state-by-state basis. This has caused Nemours’ expenditure of the Trust’s annual distribution of income within Delaware to fall below 50% of the Trust’s annual distribution amount, in violation of the 1980 Settlement Agreement. 201. The Trustees and Nemours have breached the 1980 Settlement Agreement by failing to account properly for “Corporate and Shared Services” expenses incurred by Nemours, by having Nemours, in its financial statements, allocate to Delaware a disproportionate amount of those expenses. For example, financial statements provided by the Trustees to the Delaware Attorney General show that between 2005 and 2010 “Corporate and Shared Services” totaling more than $102 million were attributed to the State of Delaware’s share of the annual distribution from the Trust, compared to just over $19 million allocated to Florida during the same period. No amounts appear to have been allocated to New Jersey or Pennsylvania in this timeframe. This has caused Nemours’ expenditure of the Trust’s annual distribution of income 87 within Delaware to fall below 50% of the Trust’s annual distribution amount, in violation of the 1980 Settlement Agreement. 202. The Trustees and Nemours have also breached the 1980 Settlement Agreement by favoring charitable activities for the benefit of residents of Florida and other states while the needs of the Delaware Beneficiaries remain unmet and not fully addressed. 203. The Delaware Beneficiaries have been damaged by the Trustees’ and Nemours’ breaches. WHEREFORE, the Delaware Attorney General demands judgment against the Trustees and Nemours and demands that the Court: a. Order the Trustees and Nemours to provide a full accounting to the Delaware Attorney General of the disposition of all income received by Nemours from the Trust for calendar years 2005 through the date upon which a judgment shall be entered hereon, with said accounting to include a clear enumeration of (i) all disbursements for the renovation and operation of the Mansion and Gardens, and the allocation of and underlying detail for such disbursements; (ii) all disbursements expended within Delaware, Florida, New Jersey, Pennsylvania, and any other states, and the allocation of and underlying detail for such disbursements; and (iii) all disbursements for “Corporate and Shared Services” by Nemours, and the allocation and underlying detail for such disbursements; b. Order that such accounting be conducted by an accounting firm agreed upon by all parties to this action; 88 c. Order the Trustees and Nemours, based on the results of such accounting, to pay to the Delaware Attorney General, for the benefit of the Delaware Beneficiaries, an amount equal to the aggregate of: 1. The expenses incurred by the Trust to renovate, repair, and operate the Mansion and Gardens that were allocated to Delaware each affected year; 2. The expenditures of Trust income made by Nemours outside of Delaware, including those made in New Jersey and Pennsylvania, that were allocated to Delaware each affected year; and 3. The difference between the amount of “Corporate and Shared Services” expenses actually allocated to Delaware and Delaware’s proportionate share of such expenses; and d. Order such other and further relief as this Court deems just and proper under the circumstances. COUNT ELEVEN —REFORMATION OF THE TERMS OF THE TRUST TO CONFORM TO MR. DUPONT’S INTENT 204. This is an action to reform the Trust pursuant to the common law of trusts and principles of equity, or Section 736.0415, Florida Statutes (2015), or both. 205. The Delaware Attorney General realleges and incorporates by reference the allegations in paragraphs 1 through 110, 113 through 115, 117, 146 through 149, 162 through 165, and 172 through 181 above. 206. Section 736.0415, Florida Statutes (2015), provides that a trust may be reformed to conform the terms to the settlor’s intent: 736.0415 Reformation to correct mistakes. Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that 89 both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument. 207. The Delaware Beneficiaries, and the Delaware Attorney General on their behalf, as interested persons within the meaning of the Florida Trust Code, are entitled to seek reformation of the Trust in order to accomplish Mr. duPont’s clear intent. 208. The Trust, as modified by the 2004 Order, fails to conform to and materially diverges from Mr. duPont’s intent in the following material respects, as may be demonstrated by clear and convincing evidence: a. The distribution to be made annually by the Trust to Nemours is stated to be three percent (3%) of the fair market value of the Trust as of January 1 of each year, as opposed to the actual income of the Trust, and thus the Trust does not unequivocally require that all income of the Trust be distributed for the fulfillment of the Trust’s charitable purposes, subject to the requirements of Florida law. b. The controlling board of Nemours is no longer comprised of members of which no less than three-fifths are residents of Delaware. c. The Trust no longer requires that the trustees in all events include a corporate trustee. 209. Additionally, the definition of “crippled children,” as set forth in the 1980 Settlement Agreement, now limits its application to children under the age of eighteen (18) years as opposed to children under the age of twenty-one (21) years. 210. To the extent that the terms of the Trust, within the meaning of the Florida Trust Code, no longer reflect Mr. duPont’s intent—as reflected in the Will, or as established by the 90 1971 Final Judgment and the 1980 Settlement Agreement—with regard to any of the matters for which declaratory relief is sought in the preceding counts, whether as a result of the 2004 Order or otherwise, the terms of the Trust must be reformed in order to accomplish Mr. duPont’s clearly-expressed intent. WHEREFORE, the Delaware Attorney General demands judgment against all Counterclaim Defendants and Crossclaim Defendants, and demands that the Court reform the terms of the Trust to conform to Mr. duPont’s clearly-expressed intent, to the extent it is necessary to do so in order to effectuate any request for declaratory relief herein regarding the meaning and interpretation of the Will. Dated: September 1, 2015. AKERMAN LLP By: /s/ John B. Macdonald John B. Macdonald Florida Bar No. 230340 Primary Email: john.macdonald@akerman.com Secondary Email: maggie.hearon@akerman.com Allison M. Stocker Florida Bar No. 84472 Primary Email: allison.stocker@akerman.com Secondary Email: maggie.hearon@akerman.com 50 North Laura Street, Suite 3100 Jacksonville, FL 32202 Telephone: (904) 798-3700 Facsimile: (904) 798-3730 OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE Matthew F. Lintner, Director, Fraud & Consumer Protection Division (Delaware Bar No. 4371) Christian Douglas Wright, Director, Consumer Protection Unit (Delaware Bar No. 3554) Joelle E. Polesky, Deputy Attorney General (Delaware Bar No. 3694) 91 Delaware Department of Justice 820 North French Street Wilmington, DE 19801 (302) 577-8400 Attorneys for Matthew P. Denn, Attorney General for the State of Delaware {34530436} 92 CERTIFICATE OF SERVICE I hereby certify that on this 1st day of September, 2015, I served a true and correct copy of the foregoing by email on: Edward F. Koren, Esq. Primary Email: ed.koren@hklaw.com Secondary Email: aileen.perlman@hklaw.com Daniel K. Bean, Esq. Primary Email: daniel.bean@hklaw.com Secondary Email: sadie.snyder@hklaw.com Sarah Butters, Esq. Primary Email: sarah.butters@hklaw.com Secondary Email: karen.folden@hklaw.com Ben Z. Williamson, Esq. Primary Email: ben.williamson@hklaw.com Secondary Email: kathleen.griffith@hklaw.com Holland & Knight LLP 50 N. Laura Street, Suite 3900 Jacksonville, FL 32202 R. Eric Bilik, Esq. Primary Email : ebilik@mcguirewoods.com Secondary Email: sdye@mcguirewoods.com Emily Y. Rottmann, Esq. Primary Email: erottmann@mcguirewoods.com Secondary Email: aabbott@mcguirewoods.com McGuireWoods, LLP 50 N. Laura Street, Suite 3300 Jacksonville, FL 32202 Blaine H. Winship, Esq. Special Counsel Office of the Attorney General, State of Florida The Capitol, Suite PL-01 Tallahassee, FL 32399-1050 Primary Email: blaine.winship@myfloridalegal.com Dennis I. Belcher, Esq. McGuireWoods, LLP One James Center 901 East Cary Street Richmond, VA 23219-4030 Primary Email: dbelcher@mcguirewoods.com /s/ John B. Macdonald Attorney Exhibit A IN RE THE ESTATE OF ALFRED I. DUPONT, DECEASED. films and: marred @npg anh Emral [If the fullnmittg: Will and Tettament dated November 19th, 1932. Codicil dated March ?#1933. Second Codicil dated January 15th, 1935. Order of Probate dated May 24th, 1935. Letters Testamentary dated May 24th, 1935. A: the Same Appear of Record and Among the Files of the Court of the County Judge, Duvnl County, Florida. Certificates of Clerk and Judge of said Court. Exhibit A :.;um.wm 45' V. .h . e; was. s. .. Am. 5me my 331:3; A Gina-r..- Nh, v. ORDER ADMITTING TO PROBATE, ORDER FOR LETTERS, OATHZIOF EXECUTOR, LETTERS TESTAMENTARY BOOK 3, Page Err - i, 714 IN THE COURT OF THE COUNTY IN AND FOR DUVAL COUNTY, FLORIDA. IN PROBATE. IN RE THE ESTATE OF ALFRED I. DUPONT, Deceased. LETTERS TESTAMENTARY TO ALL WHOM THESE PRESENTS SHALL COME, GREETING: WHEREAS, Alfred I. duPont, late of the County of State of Florida, died on the 29th da}r of April, 1935, leaving a Last Will and Testament and two Codicils which, having been satisfactorily proven, were on the 24th day of May, 1935, duly admitted to probate and record in this Court. And as by said?Last Will and Testament and Codicils it appears that Jessie Ball duPont, Reginald S. Huidekoper, and Edward Ball were thereby nominat- ed, constituted and appointed Executors of said Last Will and Testament and Codicils, and that the said Jessie Ball duPont, Reginald S. Heidekoper and Edward Ball having prayed the Court to grant Letters Testamentary thereon to them as such Executors and having in due form of law taken the prescribed oath and performed all other acts necessary to their legai quali?cation as s?ch ExecutOrs, NOW. THEREFORE, KNOW YE, that I, J. OLLIE EDMUNDS, County Judge in and for the County afore- said, by virtue of the power and authority by law in me vested, do hereby declare the said Jessie Bali duPont. Reginald S. Huidekoper and Edward Ball duly quali?ed by the laws of said State to act as Executors of the .said last Will and Testament and Codicils and with full power, - Exhibit A . . ff mm; A- Heir. . rm! 2- ?run Irrzt 95-11313?- wet-n4. "ff-Eh" my arr-3.4; p.13?, 176-; 3,794, 391- n- fame: ADMITTENG TO PROBATE, OMB FOR LETTERS. EXECUTOR, LETTERS TESTAMENTABY BOOK 3, age by the provisions of law and by virtue of these presents, to administer all and singular the goods, chattels, rights, credits, lands, tenements, hereditaments and property of the said Alfred I. duPont; and to ask, demand, sue for. recover and receive the same; to pay the debts in which the said Alfred I. anont steed bound so far as the assets shall extend and the law direct, and duly entitled to have and hold for the purposes directed in and by said last Will and Testament and Codicils all of the estate of the said Alfred I. duPont, during the legal continuance of said administration, until the same shall expire by virtue of the provisions of said last Will and Testament and Codi-' oils, or until the power and authority hereby granted shall be duly revoked according to law. IN TESTIMONY WHEREOF, I have hereunto set my hand and ?xed-the seal of the Court of the County Judge of the County aforesaid, at Jacksonville, Duval County, Florida, this 24th day of May, 1935. OLLIE EDMUNDS County Judge of Duval COunty, Florida. (SEAL) COUNTY OF BE IT BEMEMEBERED, That on this 24th day of May, A. D. 1935, I duly recOrded the foregoing Letters Testamentary in the public records of said County. J. OLLIE EDMUNDS County Judge of Duval County, Florida. STATE OF (SEAL) Exhibit A u-uu- ?nun-rm- term . Ate-4?1?? frh?fvz' . pi~r~ .r uwv-H anew-?W. ,vr-.-- .lr xiv-r11:- - 4-4411 urmcr?rr-C??fzf?; i, - .. - .. ALFRED I. DUPONT is LAST WILLS AND TESTAMENTS BOOK 5, Page 42 I, ALFRED I. DUPONT, now of Duval County, near the City of Jacksonville, State of Florida, do make, pub- lish and declare this my Last Will and Testament, hereby revoking any Will or Wills, Codicil or Codicils thereto, by me at any time heretofore made. ITEM 1. It is my will and desire that all bequests, devises and legacies, including all annuities herein created and directed to be paid, shall be paid to the bene?ciaries thereof free and clear of all taxes chargeable upon, or in? cident to the passing of my estate or the settlement there? of, generally known as inheritance or transfertaxes, whether assessable against my estate, or the bene?ciary or bene?ciaries, by any State, County or Municipality, or under the laws of the United States, not including, how- ever, any tax or taxes which may be due by the bene? ?ciary or bene?ciaries receiving any bequest or devise as a tax on the income of such bene?ciary or bene?ciaries, and I direct that my Executors shall pay all such taxes and any other taxes which may be a charge against my estate at such times as shall be deemed by them most bene?cial to my estate, within the time limited by law, and for that purpose I hereby direct and empower my said Executors to use any of my securities which may belong to my estate as collateral security for the purpose of borrowing money for the payment of said taxes, provided in the judgment of my said Executors it shall not be deemed expedient to sell or otherwise dispose of said securities, with the understanding that all other provisions of this my Will, and the vesting of any be- quests, legacies or devises hereinafter provided for, shall be subject to the use by my Executors of the said seen- rities as herein provided. ITEM I give and bequeath unto the persons here- inafter named in this Item, the following: Exhibit A A all-VB: ,fll?: Jodi A qty?mime ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 43 Unto Mrs. Madeline duPont Ruo?, now resid- mg at- Municb Germany, Five Thousand (5,000) shares of the common capital stock of Aimours Securities, Inc. Unto Mrs. Bessie duPont Huidekoper, now re- siding at 1707 ew Hampshire Avenue, Wash~ ington, D. CL, Five Thousand (5,000) shares of the common capital stock of Almours Secu- rities, Inc. Unto Victorine E. duI?ont Dent, now residing near Philadelphia, Five Thou- sand (5,000) shares of the common capital stock of Almours Securities, Inc. Unto Alfred Victor anont, now residing near 'Wilmington, Delaware, Five Thousand (5,000) shares of the common capital stock of Ahnours Securities, Inc. The four bequests in the foregoing paragraphs and are to the four children of my ?rst mar- riage, and the bequests to each of them above set forth, together with such provisions as I have heretofore made for them, I consider ample. I make no provision in this my Will for Alicia Amory Maddox Glendenning, the daughter of my former Wife, Alicia Bradford, for the reason that I consider she is amply provided for under the Will of her mother. (9) Unto Isabelle Ball Baker, the wife of the Rev? erend N. Addison Baker, now residing in Richmond, Virginia, One Thousand (1,000) shares of the common capital stock of Almours Securities, Inc. Unto Mrs. Elsie Ball Bowley, the wife of Major~General Albert J. Bowley, now residing at Scho?eld Barracks, Hawaii, One Thousand (1,000) shares of the common capital stock of Almours Securities, Inc. Unto Thomas Ball, now residing in Los Angeles, California, the brother of my wife, One Thousand (1,000) shares of the common capital stock of Almours Securities, Inc. Unto Edward Ball, now residing in Jackson? ville, Florida. the brother of my wife, Five Thousand (5,000) shares of the common capital stock of Almours Securities, Inc. This bequest is made in lieu of all fees and commissions which he should receive as Executor and/or Trustee under this Will or in connection with my Estate and is in full settlement of such fees and commissions. Exhibit ?rem?:5 1 est-w - r: E?r?Ii-Wp cranes-Pr- A, .-.J gs 7w, ET ALFRED I. LAST WILLS AND TESTAMENTS BOOK 5, Page 4-1: The sum of One Thousand Dollars to each and every one of the employees who is in my employ and/or in the employ of Almours Securities, Inc. and/or in the employ of any of its subsidiaries at the time of my death and who at such time has been so employed continuously for a period of one year or more next preceding the date of my death in the Jacksonville or in the Wilmington o??ice, and/or in con? nection with or on my yacht, and/or in connection with my former home, Nemeurs,? either in the house or outside and/or in connection with my present home, Epping Forest, near Jacksonville. Florida, either in the house or outside, provided that this bequest shall not apply to any one who has otherwise been provided for under this my Will, and that no person taking under this paragraph shall take more than One Thousand Dollars though employed both bY me and by one or more of said corporations and in more than one of the capacities above stated. ITEM 3. In addition to the contents of the Mansion House, and other buildings and structures known 'as ?Nemeurs? which at the time of our marriage and since that time I gave to my beloved wife, Jessie Ball duPont, I give and bequeath unto my said wife, Jessie Ball dul?ont, absolutely, all of the household goods, household equipment and silver and plate of every description owned by me at the time of my demise, wheresoever located and situated; also all works of art owned by me at the time of my decease, whersOever located and situated; also all automobiles, yachts, horses, wagons, carriages, harness and all equipment, tools and ?xtures used in connection therewith or in the upkeep, cultivation and maintenance of the places which I may own or maintain for my personal use, wheresoever located and situated, .and also all my jewelry, clothing and articles of personal use, where- soever located and situated at the time of my decease, it being my intention that my said wife shall have all such personal belongings as I may own at the,t'une of my demise. ITEM 4. The title to our home known as ?Epping Forest," situate in Duval County, Florida, is vested in an estate by the entireties in my beloved wife, Jessie Ball duPont, and my-self, and therefore upon the death of either it will by Operation of law pass to the survivor, but should my wife pre-decease me and the title to this property thereby become and be vested fin me at the time of my death, than and in such event I give and devise the same, together with all tenements, heredita. ments and appurtenances thereunto appertaining, unto Almeurs Securities, Inc., and its successors and assigns, in fee simple forever. Page-3 Exhibit A .?ilmM? ?were: ~19 .wtv-ca: 2M 6 3* w, . sew??. "Fwd ?tr-raw .-, 4,375..? has .11 .. six-M . j; P17: rf ?rt-1r wens-0.795.: re: ,?jmw us- ?rewrwz ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 45 ITEM 5. Subject to the legacies and bequests here? inabove set forth, I give, devise and bequeath the entire rest, residue and remainder of my property and estate, real, personal or mixed, in esse and in future, whereso- ever the same may be situated, of which I may die seized and possessed and which may belong to me at the time of my death, or which may be subject to my disposal by Will, unto The Florida National Bank of Jacksonville, - a banking corporation organized and existing under the laws of the United States of America, with its principal place of business in Jacksonville, Florida, to my wife, Jessie Ball duPont, to John F. Lanigan, now of Miami, Florida, and to Edward Ball, now residing at acksou? ville, Florida, as Trustees, and unto their successors in trust, to have and to hold said Estate forever, but IN TRUST for the following uses and purposes. If the said John F. Lauignn is not living, or is for any reason unable to act as one of my said Trustees or should resign, then I nominate and appoint my son?in-law, Elbert Dent, of Philadelphia, to act as Trustee in the place and stead of the said John F. Lanigan, and if the said Edward Ball is not living or is for any reason unable to act as one of my said Trustees or should resign, then I nominate and appoint N. Addison Baker, of Miami, Florida, to act as Trustee in the place and stead of said Edward Ball. I direct that in case an}r individual Trustee of my estate shall die Or cease to act, the survivors of my said Trustees shall have all the powers hereinabove given to my said Trustees, and such survivors shall at once select a Trustee in the place of the one so dying, or ceasing to act, and the person so selected shall exercise all the pervers given herein to one of my Trustees, pro- vided that a reputable corporate Trustee shall always be one of my Trustees. In case The Florida National Bank of Jacksonville fails or refuses to accept and act under the Trust herein created upon the terms herein set forth, then the other three Trustees are hereby empowered and directed to select and appoint some other trust company or bank. either in the State of Florida or elsewhere, to act as Trustee under the provisions of this my LastWill in place of The Florida National Bank of Jacksonville; and such other Page-4 Exhibit A ?ft?f r: af?rm-m; Afr-?3, tr,ng ?Hanna?? up. . . . 1 :33; (a "rein-:1? ear-earl a? . yorker, :9 is \w sib?ff?r'f A: - -, .L.L 2:21 Terr .ret 53131325"? - .. ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 46 trust company or bank to have all the powers and be charged with all the duties and responsibilities given to or placed upon The FIOrida National Bank of Jackson- ville under this my Will, and to receive such compensa- tion as may be determined by my individual Trustees. It is my Wish that in the event that the three indi- vidual Trustees, or their successors or substitute Trustees herein named, or the survivor or survivors of them, as distinguished from the corporate Trustee herein named or its corporate successor or any succeeding cor? porate successor or successors thereof, should at any time deem it expedient that the corpOrate Trustee be changed, then. they shall have the power, from time to time and as often as they consider it advisable so to do, to select another trust company or bank, either in the State of Florida or elsewhere, as the corporate Trustee, whereupon the corporate Trustee as hereinabove indi. cated, namely, The Florida National Bank of Jackson- ville or its corporate successor, or any succeeding cor- porate successor or successors thereof, shall relinquish and give over all rights as corporate Trustee to the newly selected bank or trust company, and all rights and duties given to The Florida National Bank of Jacksonville or its corpOrate successors or any succeeding corporate suc- cessor or successors thereof, shall cease and determine, and the same shall be taken. over by the new corporate Trustee chosen by the individual Trustees as hereinahove set forth, the compensation of the new corporate Trustee in each instance to be determined by the individual Trustees. ITEM 6. It is my will and desire that my said Trustees and their successors shall take possession and shall have entire management and control of the corpus of my estate duringr such time as it is in their keeping and in the administration and management of my said trust estate my Trustees shall have the following powers, which may be exercised at their discretion, namely: To continue to hold any securities or other assets left by me, as well as investments made by them, so leng as they shall deem it advisable so to do, without liability for any loss that may result therefrom. age-5 -. Exhibit A ?H's-3'1 77:51.11? 3'1 . swap-s. 3. 1, - 1 :wyrn ?we: 1:133" $116755; dues? - ?7?31l?l?fjn -. Amy-51 a- . it 'z-rrtj. era-rwis-r?r If" ,fgjn-ej ?Marc?307% {?15155} 2- . r. 2w Fry"? ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 4' To invest and reinvest the assets of my estate, or the proceeds of any sale or disposition thereof, in any corporate stocks, bonds, or other securities, or in any other investments, either real or personal, or both, from time to time, not con?ning such investment or reinvest. ments to what are de?ned by the laws of any State as legal trust fund investments, with power to buy stocks and bonds and other securities at a premium to be paid out of and charged against the principal of the trust estate, andwith power in their discretion to cause the securities, which may, from time to time comprise the - trust estate, or any part or parts thereof, to be registered in their names as Trustees, or in the individual name of their nominee, or to take and keep the same unregistered and retain them or any part or parts thereof in such con- dition that they will pass by delivery, without liability for any loss that may result therefrom. To borrow money from time to time, for any pur- pose in the administration or distribution of my estate or to continue and renewr any loan made lifetime, or to, or by my said Executors or Trustee as in their judgment shall seem wise and expedient, and for that purpose to give, execute and deliver such assign- ments and transfers, obligations, notes, pledges, bonds and mortgages and renewals thereof, and other instru- ments or papers, from time to time, as they may deem necessary or proper, without liability on the part of any such purchaser, lender or mortgagee, to see to the appli- cation of the purchase moneys or of the moneys loaned. To sell, either at public or private sale and either clear of encumbrances or subject thereto, or upon ground water purchase money mortgage, and further to mortgage and re?mortgage, pledge, assign, and re- assign, lease and release, any or all of the assets, real or personal, of my estate, of which I shall die seized or pos- sessed, or which may in any manner or way come into the possession of my said Executors or Trustees, or of which the title may be vested in them or to which they shall be entitled, at any time whatsoever, for such price or prices, sum or sums and upon such term or terms as my said Executors or Trustees as the case may be, she." Page-6 Exhibit A xr?A Av- gw w. wwc-Are-?- i. . - .-, {infra??sh": .1. ,3 .- "To ?Frazer earn-.9 9 wry-a m: tin-,1 ALFRED I. DUPONT LAST WILLS ANDTESTAMENTS BOOK 5, Page 48 deem wise and expedient,and to give,execute,and deliver good and suf?cient deeds, assignments, transfers, powers, bonds, mortgages, pledges, leases, authorities, and other assurances and instruments in the law as in their dis- cretion may be deemed necessary or proper in the prom less, and to re-execute any of their powers herein granted from time to time as may be found necessary or advis- able in the administration of my estate, without any lia~ bility or responsibility upon the part of the purchaser or purchasers, mortgagee or mortgagees, pledgee or pledgees, obliges or obligees, assignee or assignees, lessee or lessees thereof to see to the application of the pur? chase moneys, or of the borrowed, bond, mortgage or pledge moneys. To take over properties in foreclosure and to buy in assets held as collateral in case of default upon any obligations held by my estate, and, in their discretion, to retain the same, and further to enter into and become a party to any concerted action or plan, reorganization or otherwise, and sign agreements in reference thereto, with the intention of liquidating, conserving, bettering or saving any of the assets of my estate, and for that purpose to make deposit and exchange of securities and other property and pay charges, assessments and ex- penses in connection therewith. To carry on any business enterprise in which I am interested in my lifetime, either individually or as a co-partner, or to enter into an incorporation of the same and accept corporate stock in lieu of any individual in- terest, at such valuation or valuations, or to sell out my said interest at such price or prices, as in the judgment ot? my said Executors or Trustees shall seem fair and adequate. To make such contributions and to pay such as- sessments upon any assets of my estate which they shall be called upon to meet, as in their judgment they may deem wise and expedient. To do every and all things that they may deem best for the conservation, protection and betterment of my estate, as fully and completely as I might do, person? ally, were I alive and able to act for myself. To pay all expenses incurred in the administra- tion, conservation or protection of my estate, out of the principal or income, including Page-7 Exhibit A 3. ray-?mg; ?n?w1 Lz?kyrt?ler ?seem-Hung? mgr-4 . r. v- rising-r. :75? .. . . . {?ame-m: .L-?wrwl y? .gr?u i. . ..A .. Ween-w 1r ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 49 accounting, whether ?nal or otherwise. To replace and rebuild, out of the prooeeds of any insurance carried for protection against such des- truction, any property destroyed by ?re or other destruc- tive elements, and further in their discretion to add to and augment such insurance fund out of the principal funds, real or personal, of my estate, should such further funds be necessary in the judgment of said Trustees. And further, to remodel and to rebuild any im- proved property that may be necessary in their judg- ment for the best interests of my estate,or to build upon and improve any unimproved property belonging to my estate, out of the principal of my estate. In the absence of suf?cient extra funds needed in such instances, to bor~ row the required sums upon bond and mortgage, or other obligations, as above set forth, and to renew such loans and obligations as may be necessary from time to time. Upon the raising of the question as to Whether an item of charge or discharge be principal or income, the decision of my said Trustees upon such point shall be ?naL In general to exercise the same powers in deal- ing with, and disposing of the real estate, securities and other property which shall at any time constitute a part of the'principal of my estate, that an individual, owning the same absolutely, would have, except as herein other- wise expressly provided. . (D) To subscribe and pay for stock in corporations and hold the same as a part of my estate, and to vote any stock held by them at any meeting of the stockholders of said corporations. (0) I further authorize my Executors and Trustees to compromise and settle all claims in favor of, or against my estate. I order and direct that there shall be paid from and by my estate to my Trustees for their services as such, the following: 1. To The Florida National Bank of Jacksonville the sum of Two Thousand Dollars per annum during the period of time that it is serving as my cor~ porate Trustee. Page~8 Exhibit whey-71v gm fut-g - ?244- 2- v4? hm?, pf, urn-I 7331's;- a: res?3.1?: . .- . ?um-v :47 it" ALFRED a. DUPONT LAST WILLS AND BOOK 5, Page 50 2. To each of the individual Trustees, or their successors, with the exception of Edward Ball who is elsewhere herein otherwise provided for and who therefore receives no cash, the sum of Five Thousand Dollars per annum for their services as Trustees. Should at any time a question arise in the minds of my Trus~ tees concerning the propriety of doing, or refraining from doing, any? thing in the discharging of their duties as Trustees, then the decision of the majority of my Trustees must rule. Should a majority decision be impossible, then the ruling of the corporate Trustee must be ?nal. ITEM 7- I Will and direct that my Trustees shall pay out of the net income of my Trust Estate to the persons hereinafter named in this Item, the annuities hereinafter mentioned upon the terms and con- ditions set forth in the separate paragraphs of this Item, said annuities to commence at the time of the date of my death and to be payable by my Trustees (or by my Executors during the period between the date of my decease and the time of the discharge of my Executors and the assumiption by my Trustees of their duties), viz: Unto Adelaide Camille Denise duPont, being so known, the sum of Five Thousand Dollars per annum until she at- tains the age of twenty one years; and thereafter the sum of Ten Thousand Dollars per annum until she attains the age of twenty ?ve years;'and thereafter the sum of Twenty Thousand Dollars per annum until she attains the age of thirty years; and thereafter the sum of Thirty Thousand Dollars per annum for and during the term of her natural life; and upon her death, if she die before attaining the age of thirty years, to pay an annuity in the ?xed sum of Twenty Thousand Dollars or upon her death after attaining the age of thirty years to pay the maximum annuity aforesaid, to?wit, the sum of Thirty Thousand Dollars 000.00) to her child, if there be one child living at the time of her death, and to her children, share and share alike, if there be more than one child living at the time of her death, for and during the terms of their natural lives, or for and during the term of twenty one years, whichever period he the shorter, the annuity'or share of said annuity payable to any child, however, to cease and terminate upon the death of said child and to re- vert to my residuary estate, it being my will and desire, how. ever, that the said annuity shall not lapse in the event of said Adelaide Camille Denise duPont dying during my lifetime, but in the event that the said Adelaide Camille Denise duPont should die in my lifetime and leave to survive her a child, or children, then the entire annuity (that is Twenty Thousand Dollars or Thirty Thousand Dollars,as the case may be,depend- Page-9 . u. Exhibit A . grain?r,? .Aw-fI?e-rv- 1.21- - var-2'. "he a ., .1 swam,? punts-.1 pp .14 a? v- 3 :25" v: a amen-?: ?re-"Ln. n- - ALFRED I. DUPONT LAST WILLS AND TESTAMENT BOOK 5, Page 51 ing on whether or not her death occurs before or after she attains the age of thirty years) to be paid to her child, if there be one child, and to her children share and share alike, if there be more than one child, for and during the terms of their natural lives, the said annuity, however, or the share of said annuity payable to any child to cease and terminate at the death of said chtildc entitled thereto hereunder and to revert to my residuary es a e. Only such portion of the said annuity of Five Thousand Dol- lars shall be paid to the said Adelaide Camille De- nise duPont during her minoritv as is determined by my wife, Jessie Ball duPont, her guardian, or any subsequent legally appointed guardian. The unpaid balance of the annuity, if any, is, during her minority, to be set apart and held in trust by my Trustees herein appointed (or by my Executors during the period between the date of my decease and the time of the dis- charge of my, Executors and the assumption by my Trustees of their duties) in a separate trust. with all of the powers of investment and re-investment given to my Executors and Trus? tees herein as to the major est-ate, with the right to disburse to the said Adelaide Camille Denise duPont from time to time such portions thereof, it any, as may be designated by said guardian, and with the duty to distribute or pay to her when she attains the age of twenty one years all of the assets in- cluded in said separate trust. In case of her death before that time all assets included in this separate trust shall revert to my residuary estate. Unto Maurice duPont Lee, now residing at Brookside Drive, Rockridge, Greenwich, Connecticut, the sum of Fifteen Thou- sand Dollars per annum for and during the term of his natural life, and after the death of the said Maurice du- Pont Lee oneehalf of the said annuity, to wit, the sum of Seven Thousand Five Hundred Dollars shall be paid to his wife Geraldine Shaw Lee, for and during the term of her natural life, and the other one-half, to-wit, the sum of Seven Thousand Five Hundred Dollars shall, it and while there be living issue of his body and ot? the body of his said wife, he paid to such issue or the survivor or survivors of such issue share and share alike, if there be more than one, for and during the life of the said Geraldine Shaw Lee and during the life or lives of such issue or the survivor or survivors of such issue. Should the said Maurice duPcnt Lee predecease his said wife and should there be no living issue of their bodies during any period thereafter during her lifetime, then, for that period, the $7,500.00 which would have been paid to such issue shall be paid to the said Geraldine Shaw Lee. After the death of the said Maurice duPont Lee and his said wife the said annuity of 000.00 shall be paid to their child, the issue of their bodies, if there be one child living at such time, and to their children share and share alike, if there be more than one child living at such time, for and during the terms of their natural lives or for and during-the term of twenty-one years, whichever period he the shorter, the annuity or share of the said annuity payable after that time to any child. however, to cease and terminate upon the death of said child and to revert to my residuary estate, it being my will and desire, however, that said annuityr shall not lapse in the event of the said Maurice duPont Lee dying during my lifetime, but in the event that the said Maurice duPont Lee should die during my lifetime leaving to survive him Page~10 Exhibit A s. . rte,? mi, ?greys-r ?mm-v era-(w- I. ?i't ?rrA-A .?wwl-frr f. 1: ire. mfg-set: Ana-nan I. DUPONT LAST WILLS AND TESTAMENTS BOOK Page 52 his wife, the said Geraldine Shaw Lee, then and in that event the said $15,000.00 annuity, for and during the term of her natural life and if and while there is no living issue of said marriage, shall be payable to the said Geraldine Shaw Lee, but if there be issue the said annuity shall be payable one-half as aforesaid to the said Geraldine Shaw Lee for and during the termof her natural life and the other one-half as aforesaid to the child or children living during her lifetime, and should the said Geraldine Shaw Lee and the said Maurice duPont Lee both die during my lifetime, then and in that event the said annuity of $15,000.00 shall be paid for and during the terms of their natural lives to the said child or children of the said Maurice duPont Lee who shall survive him, the entire annuity to be paid ?to said child, if there be but one child, or share and share alike, if there be more than one child; the annuity, however, or the share. of said annuity payable to any childafter the death of both the said Maurice duPont Lee and his said wife shall cease and determine at the death of the child entitled thereto hereunder and revert to my residuary estate. Unto Ruth Brereton Silver, now residing; at 904 West Eleventh Street, Wiln?ngton, Delaware, the sum of Twelve Hundred Dollars per annum, for and during the term of her natural life. Unto Mary E. Brereton, now residing at 904.- West Eleventh Street, Wilmington, Delaware, the sum of Twelve Hundred Dollars 200.00) per annum, for and during the term of her natural life. Unto S. Frank Mathewson, Route 5, Cambridge, Maryland, the sum of Twelve Hundred Dollars per annum, for and during the term of his natural life, and I further direct that my said Executors and Trustees permit the said S. Frank Mathewson, who is and has been the caretaker of my property in Dorohester County, Maryland, to occupy the house in which he has lived for several years, and to use the farm buildings, the same to be so occupied and used by him free of charge as a home during the term of his natural life, and if on the death of the said S. Frank Mathewson he is survived by his wife, Anna Evans Mathewson, to pay said annuity, to?Wit, the sum of Twelve Hundred Dollars per annum, to his said wife for the term of her natural life, and to permit her to occupy said house and use the farm buildings, the same to be so occupied and used by her free of charge as a home during the term of her natural life. Unto Thomas Horncastle of the Estate of Nemours, Brandywine Hundred, New Castle County, and State of Delaware, the sum of Twelve Hundred Dollars per annum, during the term of his natural life. Unto James Dolan, of the Estate of Nemours, Brandywine Hun? dred. New Castle County, and .State of Delaware, the sum of Twelve Hundred Dollars per annum, during the term of his natural life. Page-11 Exhibit A -. duff? Mfr." . rm: 3. pong-?mg yet A, A A - :s?i Z?Tr?rv?m .1 i'i-r'e-rxm-ver ALFRED I. DUPONT LE LAST WILLS AND TESTAMENTS BOOK 5, Page 53 Unto T. W. Mathewson, 190 Breck?s Lane, Christiana Hun- (1) (In) dred, New Castle County, and State of Delaware, the sum of Twelve Hundred Dollars per annum, for and dur? ing- the term of his natural life. Unto Andrew Fullerton, of the Estate of Nemours, Brandy- wine Hundred, New Castle County, and State of Delaware, the sum of Twelve Hundred Dollars per annurn, for and during the term of his natural life. Unto Robert Hardwiek, of the Estate of Nemours, Brandy~ wine Hundred, New Castle County, and State of Delaware, the sum of Twelve Hundred Dollars per annum, for and during the term of his natural life. Unto Thomas Montgomtary, now residing on Breck?s Lane, Christiana Hundred, New Castle County, and State of Dela- ware, the sum of Twelve Hundred Dollars per annum, for and during the term of his natural life. Unto Walter Newman, caretaker of Nemours, Delaware, the sum of Twelve Hundred Dollars per annum, for and during the term of his natural life. Unto Thomas Weber Jakes, now residing at 2901 West Sixth Street, Wilmington, Delaware, the sum of Twelve Hun. dred Dollars per annum, for and during the term of his natural life, and after the death of the said Thomas Weber Jakes the said annuity, towit, the sum of Twelve Hundred Dollars per annum, shall be paid unto his present wife for and during the term of her natural life. Unto Miss Mary G. Shaw, now residing in Wilmington, Delaware, the sum of Twelve Hundred Dollars per annum, for and during the term of her natural life. Unto Mrs. Irene Walsh, of Jacksonville, Florida, the sum of Twelve Hundred Dollars per annum, for and during the term of her'natural life. Unto Miss Margaret 13. Hanby, daughter of Dr. Charles M. Hanby, of Wilmington, Delaware, the sum of TWelve Hundred Dbllars per annum, for and during the term of her natural life. This annuity she is to have regardless of whether or not she receives anything under the contingent arrangement made for her bene?t under the Trust Agree ment entered into between Alfred I. duPont, Jessie Ball duPont and The Florida National Bank of Jacksonville. Page-12 Exhibit A -- err-p.14 in, {5.5.1 v.17 .3. re:- retreat-2:2: 2-ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 54 Should I, by vii-tile of an Instrument made subsequent to the date of the signing of this my Last Will and Tests- ment, make provisions for those bene?ciaries as cited under Item 2 relating to bequests, and under Item 7 re- lating to annuities, which provisions shall be equal to or greater than those hereinabove stipulated, then such be? qUests and such annuities as made in this my Last Will and Testament, and which have been duplicated or made in greater amount in said subsequent Instrument to this my Will, shall become void. It is my will and desire that the legacies, bequests or annuities, as set forth in this Item, or any Item of this my said Will, shall be for the sole, separate and exclu- sive use and bene?t of the person entitled thereto,so that the same shall not be in any manner pledged, appropri~ ated,disposed of or parted with by anticipationorbefore the same shall have accrued and become payable; nor shall the same be subject to execution, attachment or se~ questration for any debts or liabilities whatsoever of the person entitled thereto under this my Will, but each and every payment shall be made by my Executors or Trustees to the bene?ciaries of the said legacies, bequests or annuities personally,and the receipt or other acknowl- edgement of the respective bene?ciaries of the legacies, bequests or annuities as set forth in this Item or any other Item of this my said Will, when so paid, shall be the su??icient and only discharge of my Executors or Trustees for such payment. It is also my will and desire, and I hereby direct, that if any person entitled to any legacy, bequest or annuity under the terms of this Will, shall directly or indirectly contest?or dispute the probate of this Will 0r institute or become a party to instituting any proceedings or act in the interest of any person who shall institute any pro- ceedings, suit, or action, for the purpose'of abrogating, setting aside, breaking or changing the effect of this Will wholly or in part, then and in that event, the legacy, be- quest,or annuity declared in favor of such person by this my Will, or provided for herein, shall immediately thereupon be revoked, cease and determine and become wholly void and of no effect. Page~13 Exhibit A qu?pn Eng-5,; r. a 4r: Roi?rap wry-.5 .13: is: u; w- 1w:v:wv-v 5w Mam-gym ue-mr??c-t-w-V-a?vn .n -: messy?lune? H?rtrv, -v r- arm-v. .4 at 3- . pm.? 2733?: - Prawns-revs- . A n. uv' tum-LS" ALI-nan I. DUPONT in LAST WILLS AND TESTAMENTS BOOK 5, Page 55 I make no provision in this my Will for my sister Mrs. Marguerite duPont Lee, of Washington, D. 0., nor for my brother, Mr. Maurice duPont, now living in New York City, nor for any of his family, nor for my sister?s two sons and their families, except such provision as has been made under Paragraph Item 7 hereof, for the reason that ample provision has been made for'them in a certain Trust Agreement entered into between Alfred I. duPont, Jessie Ball duPont and The Florida National Bank of Jacksonville. It is stated in said Trust Agree- ment that if any bene?ciary entitled to take under the terms thereof, whether such bene?ciary be an individual, partnership, association or corporation, and notwith- standing the fact that such bene?ciary'may or may not be named or designated in this Will as being entitled to any bene?t or interest hereunder, shall: directly or indirectly contest or dispute the probate of this Will, or institute or become a party to instituting any proceedings or act in the interest of any person Who shall institute any pro? ceedings, suit or action, for the purpose of abrogating, setting aside, breaking or changing the effect of this Will, Wholly or in part, then and in such event any provisio: or bene?cial interest of or for such bene?ciary, created by or included in the terms of said Trust Agreement, shall immediately thereupon be revoked, cease and de- termine and become wholly void and of no effect. ITEM 8. I will and direct that my said Trustees (or my Executors during the period between the date of my decease and the time of the discharge of my Executors and the assumption by my Trustees of their duties) shall, as aforesaid, collect and receive the rents, pro?ts, issues, interests and income from my residuary estate, here- tofore and hereinafter designated and referred to as ?income,? and after deducting any and all proper and reasonable expenses, and the annuities hereinbefore cre- ated, or such of them as shall not have terminated under the terms and conditions attached to each of them, shall pay over, in quarter-annual payments, the net ?income? therefrom to my said Wife, Jessie Ball duPont, for and during the term of her natural life, and upon the death of my said wife, then that my said Trustees shall proceed as follows: Pagal? Exhibit A starts twat-stv Wars-2 :q?x I-r "FI?ef-Gri??e?. 1-. 1mm" r; ?er-rw Phr- scan754?? err; ?pry-r; ?17 ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 56 ITEM 9. My Trustees shall cause to be incorporated a corporation for charitable purposes, to be designated and known as ?The Nemours Foundation? (provided such a corporation shall not have been incorporated dur- ing my lifetime, and in the event that such corporation shall have been incorporated in my lifetime all the pro visions of this Will concerning the said corporatiozi shall apply to the corporation as incorporated), and my said Trustees shall by proper conveyance convey unto the said corporation, in fee simple forever, the entire prop- erty, together with the buildings and structures thereon situate in Brandywine Hundred, New Castle County, State of Delaware, known as ?Nemeurs,? if the title thereto stands at the time of my death in my name, and if the title to ?Nemesrs? is held by a corporation, the steel: of which is held by me or by a corporation which is controlled by. me at the time of my death, than my said Trustees shall assign and transfer all the stock of such corporation to ?The Nemours Foundation,? or such cor- poration for charitable purposes as shall have been in- corporated during my lifetime, and my said Trustees in their discretion may have the corporation holding the title to ?Nemours? duly wound up and dissolved, and cause the legal title to ?Nemours? to be conveyed to ?The Nemours Foundation,? or such other corporation as may, in lieu thereof, be incorporated in my lifetime, and my said Trustees are hereby directed to pay over, at convenient intervals, to the said corporation, the net income of my said estate, subject to the annuities and legacies hereinabove mentioned, for the purpose of main- taining the said Estate of ?Nemours? as a charitable institution for the care and treatment of crippled chil- dren, but not of incurables, or the care of old men or old women, and particularly old couples, ?rst consideration, in each instance, being given to bene?ciaries who are res- ideuts of Delaware, the one or more of which said chari- table purposes, however, being left to the decision of my said Trustees, with the understanding that the following rules and regulations shall be included among those im- posed by the Board of Managers controlling said insti- tution: Page-15 .. Exhibit A awn-afar. .4. 5 1am ,?LJm-u -. . .u-wv gang-1 way??er T?n-?f?r?ir? 1. 74., I . UM .- - Amman I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 57 ?The Nemours FOundation? shall be created and maintained as a memorial to my great, great grand? father, Pierre Samuel duPont de Nemours, and to my father, Elenthere Ir?n?e duPont de Nemours, and a proper tablet shall be erected in the present mansion to so indicate. The Mansion House on the Estate of ?Nemeurs? - shall not be used for housing or hospital purposes of said institution, but buildings may be erected at any point on the Estate of ?Nemours? suitable for such purposes and as shall be selected by the Board of Managers. The rooms of said Mansion shall be used for the re? ception of visitors and their entertainment; also for ex- ecutive and administrative purposes, should my Trustees so decide, but mainly for the purpose of providing a library and exhibiting to the public interesting and val- uable literature, works of art and any articles of historic and artistic interest for the advancement of education, and maintained, as far as possible, in their present con- dition. My Trustees are speci?cally instructed that it shall be their duty, ?rst, to care for the mansion and grounds and gardens surrounding ?Nemours? in order that they be maintained for the pleasure and bene?t of the public in their present condition and the grounds improved from time to time, as their funds warrant; it being my par- ticular desire that this memorial to my great, great grandfather, Pierre Samuel anont de Nemours, and to my father, Eleuthere Ire'ne'e duPont de Nemours, be not permitted to deteriorate, but that it shall consistently be- Come more beautiful and attractive to those who view it as time passes. Only after faithftu carrying out the above instructions shall my Trustees be warranted in. using any portion of the capital or income of my estate for additional charitable purposes. My Trustees shall arrange for the admission of the public to the Mansion and other buidings and the grounds at such times and under such rules and regulations as they. may provide. The Board of Managers hereinbefore referred to shall consist of five, members, men or women, and shall be ap- pointed by my said Trustees for terms of Page-16 Exhibit A whoit? Instr-1 hp fw-?afgveft?: ., -0, . 7?7} - . v'u . ?nudge, i, ALrnaD I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 58 one, two, three, four and ?ve years respectively, and at the expiration of the term of each Manager ?rst ape pointed, a Manager shall be appointed by my said Trus- tees for a term of ?ve years; three of said Managers shall be residents of the State of Delawareresidents of the State of Dela- ware. My said Trustees shall have full power to ?ll all va- cancies, whether the same shall occur by death, resigna- tion or otherwise, and shall have full charge of the mana- agement and policy of the said Foundation, and shall have full power to employ and discharge such superin- tendents, physicians, professional advisers or assistants, employees and agents as shall be required for the preper management and conduct of the said Foundation. The said members of the Board of Managers shall be each entitled to a salary of One Thousand Dollars per annum, during their term of of?ce, except for Resident Physician, who if a member of the Board of Managers, may receive more. The said Trustees shall have the right, at any time, however, to remove any member of said Board of Man- agers, and shall not be required to specify the cause for such removal. The said Trustees shall have power to take and set apart from the principal of my estate a fund not to or ceed One Million Dollars or so 'much thereof as may be necessary, to be applied and expended inthe erection and equipping of buildings for the, pur- poses of said Foundation, which shall be located at a reasonable and proper distance from the Mansion House. Should it become necessary to erect any additional build- ings for the purposes of said Foundation, such buildings must be erected, if deemed wise to do so, from the income from my estate or bequests or gifts from others, and not from the capital of my estate, so that in no event shall the capital of my estate be diminished by using any por~ tiou thereof for the erection and equipping of buildings upon the said estate, beyond the said sum of One Million Dollars herein appropriated for that object. Page-17 Exhibit A ?can. - 32' m-t st?mc?rm?rm-tsn i ,w i sit" f?f: WW stator.? rm "5 39, ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 59 (A) In case after my death my said wife, Jessie Ball duPont, shall desire to create a charitable corporation or institution for the purposes and objects covered by the directions herein given for the creation of the said ?The Nemours Foundation,? then my said Trustees shall pay over to the said ?The Nemours Foundation,? out of the principal of my said estate, any sum or sums not exceeding One Million Dollars which my said wife during her lifetime may direct, and trans for to said corporation said ?Nemours? Estate or any portion thereof for the use of said corporation, if my said wife shall so direct, provided, however, that the prin? cipal of my estate transferred under the directions of my wife to ?The Nemours Foundation,? or used for the purposes of said Foundation during her lifetime, taken together with any amounts of principal transferred to ?The Nemours Foundation,? or used for the purposes of said Foundation by my Trustees after her death, shall not in any case exceed the aggregate maximum sum of One Million Dollars plus the said property itself known as ?Nemours.? (B) The trustees under this my Will shall annually, in January, make a full statement and report in writing to my wife, Jessie Bali duPont, during her lifetime, and shall also tri-ennially, in January, in the Court having jurisdiction thereof, ?le their accounts, showing a true and accurate condition of the estate and of the principal investments and income thereof. (C) The Board of Managers of ?The Nemours Foundation? shall annually, in January, make a full statement and report in writing to the Trustees appointed by this my Will of the receipts and expenditures of the said Board of Managers in conducting and managing the said Foundation. . ITEM 10. I further direct that, after the death of my beloved wife, Jessie Ball duPont, if the net income of my estate should in any year or years exceed the sum or some sui?cient to properly provide for the conduct and operation of said ?The Nemours Foundation,? and in particular in the care and maintenance of my old home ?Nemours? which, under the terms of this Will, passes to ?The Nemours Foundation,? and for reserves 'for ex- tensions, repairs, Page-18 Exhibit A Teams.59.: .17: ire-ermch ~45 ?l??tp .3357, -.-, ,1 raw-:vc? Faraway:- I- w; l- I-msarwer-ryv rte-r 1n r. +41%an LqJ-?l .141 776:5. . MW, Amman I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 60 replacements, alterations, additional equipment, addi- tional buildings, additions to buildings or other necessary improvements and any and all future needs of such Foundation, such surplus incorne may from time to time be used by the Board of Managers of said ?The Nemours Foundation,? my Trustees concurring, in contributions to other worthy charitable institutions designated by said Board and approved by my Trustees as may be conv ducted for the care of, or the care and treatment of, or the care and education of crippled children, or the care of old men, or of old women, or of old couples, or any one of such purposes. It is my wish that the people of Delaware needing the care of such institutions shall be properly provided for before contributions are made to institutions of any other state or states, but said Board, my Trustees concurring, is hereby given full power to determine what constitutes the necessary reserves for ?The Nemours Foundation? and What constitutes proper provision for the Delaware institutions. The decision of a majority of the Board in all cases where the Board under the provisions of this Will is given power to act shall constitute the decision of the Board, if all members are given an opportunity to be heard. ITEM 11. I hereby nominate, constitute and appoint my wife, Jessie Ball duPont, John F. Lanigan, now of Miami, Florida, and Edward Ball, now of Jacksonville, Florida, Executors of this my Will, but in the event that the said John F. Lanigan is not living, or should resign or is unable to act as Executor for any cause whatsoever, then in his place and stead I hereby nominate and ap- point N. Addison Baker, of Miami, Florida, and in the event that the said Edward Ball is not living, or should resign or is unable to act as Executor for any cause what soever, then in his place and stead I hereby nominate and appoint my son-in-law, Elbert Dent, of Philadelphia, and it is my will and desire, and I hereby direct that they shall be permitted to qualify to serve as such Executors, as aforesaid, in any State of the United States, or in any foreign country, without either of them being required to give bond or security, in any manner whatsoever, for the proper performance of their duties as such Page-19 Exhibit A pew tangent-n A . ?mar . ?up, . Practise-after?: rem-?r 1?10?) rag?4A5 egg->14. pi?n (Margy-mgr.- m??uijgw-rI-t awry-a ram wire-rota? n?rtvw-ww-u A A . 3? . -.- arm: .- -r renew; ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 61 Executors. In case of the failure to qualify or death or resignation of any one or more of the aforesaid Execu- tors and/or of the successor or successors designated to succeed any certain Executor, the surviving Executor or Executors and/or successor or successors designated to Substitute for certain Executors who may not qualify or who may die or resign shall have all of the powers to act, alone or together, as the case may be, which are here- in given to my three Executors jointly. During the period of their administration of my Estate my Executors shall have, and they are hereby given, all of the powers given anywhere in this Will to my Trustees. It is also my will and desire, and I hereby direct, that my said Trustees hereinbefore named, or any suc- cessor, shall be permitted to qualify and serve as such Trustees, as aforesaid, in any State of the United States, or in any foreign country, without the said Trustees being required to give bond or security, in any manner whatsoever, for the proper performance of their duties as such Trustees. I authorize and direct that each of my with the exception of EdWard Bell, who, being herein otherwise provided for, shall receive no he paid for their services the sum of One Hundred Thousand Dollars payable one-half at the end of the ?rst full year?s service beginning at the time my Will is probated, one-fourth at the end of the next year, one- eighth at the end of the next year, one~siXteenth at the end of the next year, and so on in like decreasing proper; tion until my Executors are discharged, at which time the total unpaid balance shall be paid. In the event that an Executor shall die or resign during any year he shall receive for his services the pro- portiouate part of what he would have received for the whole year which the number of days that he served bears to three hundred sixty ?ve. Any Executor succeeding another shall receive only that proportion of the One Hundred Thousand Dollars total base fee for the period during which he has served which would have been received by the Executor ?rst appointed had he served over that period. Each Executor shall Page-20 Exhibit A -. mummy: tel-51?? ne?xs-c v: u?xs 3r:- wnwv?mw' ?aw, my. . . ,i-V ?Pu1.4- 97:1 went. .- Vans." . v; .7775 LAST WILLS AND TESTAMENTS BOOK 5, Page 62 receive the fee, or proportion thereof, herein provided to be received by him or her over the period that he or she serves, and no Executor shall receive any part of the fee herein provided to be paid to any other Executor except where he be the successor of such other executor and receive as such the proportionate share of the original Executor?s fee which is herein provided to be paid to his successor. No successor of Edward Ball shall receive any part of his legacy, the same being an outright legacy to him covering also his services as Executor and Trustee, but any successor to EdWard Ball shall receive the same proportion of the base fee of One Hundred Thousand Dollars which any other Execu- tor would receive over the same period. I hereby absolve my said Executors and Trustees from any liability to my estate, or to the bene?ciaries hereunder, for any loss to them or to my said estate so long as they act honestly and in good faith. ITEM 12. I hereby nominate and appoint my beloved wife, Jessie Ball duPont, as Guardian of Adelaide Camille Denise duPont, to be vested with all such powers and control as such guardianship confers. She shall serve Without bond. It is my will and desire, and I hereby direct, that my Last Will and Testament shall be probated and recorded in the City or County of my legal residence at the time of my death. IN WITNESS WHEREOF I have hereunto set my hand and seal this 19th day of November in the year of our Lord, one thousand nine hundred thirty two (1932). Alfred I anont (SEAL) Page?21 Exhibit A {may . m5;- fri??h?wi?v??t ?wright.? 0 Avian? {e'rn'vw~'yr~xr1: r7." new. suit. r. p: - .A-rr- 4 - LAST WILLS AND TESTAMENTS BOOK 5, Page 63 The foregoing instrument, consisting of twentyr two pages, including this one, at the date hereof, to-wit: the 19th day of November, A. D. 1932, was signed, sealed and published by the said ALFRED I. DUPONT as, and declared to be, his Last Will and Testament in the pres- ence of us, who at his request and in his presence, and in the presence of each other, have subscribed our names as Witnesses hereto. S. B. Jennings of Jacksonville Fla. R. Pearce Markham of Jacksonville Fla. Raymond D. Knight of Jacksonville, Fla. STATE OF FLORIDA BE IT REMEMBERED that COUNTY OF on May 134935 I duly re- corded the foregoing Last Will and Testament in the public records of Duval County, Florida. J. OLLIE EDMUNDS, County Judge By T. V. Cashen, Jr., Clerk County Judges Court (Seal) Page-22 Exhibit A 45?: miz-u - Ar~_ ?~?mm4ryw Irv-mm awn-v: err-war-- 4.45:, z: via-w v-rrvvu m? we: tru- rhr-vv?r?m ?aws-m 1- r-T r?m? a 71'. v.13, in?rm?am??u? - AL 9A.: "av-rt:- 1- gain" a, ALFRED I. DUPONT LAST WELLS AND TESTAMENTS BOOK 5, Page 64 0 I I TO LAST WILL AND TESTAMENT OF ALFRED I. DUPONT. I, AEFRED I. of Duval County, near the City of Jacksonville, State of Florida, do hereby make, publish and declare this Codicil to my Last Will and Testament dated the 19th day of November, A. D. 1932. ITEM 1. Having become impressed, after a study of my said Will and deliberate consideration of world con- ditions, that I have not in my Will properly protected . the interests of my wife, Jessie Ball duPont, against pos- sible eventualities, and desiring that she shall receive, to commence at the time of the date of my death, an annuity of Two Hundred Thousand Dollars or such part thereof as shall be available each year out of current net income for the payment thereof, before any of the annuities mentionedin Item 7' and sub-paragraphs there? of lettered to inclusive are paid either in Whole or in part, this regardless of the provisions in Item 7 of my Will that the annuities therein provided for shall be paid and desiring that such annuity to my wife should be paid to her ?rst out of the net income from my residuary or trust estate and that the other annuities mentioned in said Item 7' and said sub?paragraphs thereof shall be conditional upon there being funds from the net income from my residuary or trust estate after paying; the annuity of Two Hundred Thousand Dollars 000.00) to my wife and that such other annuities should be second, subject and subordinate to the said annuity to her, and desiring that said annuity to her shall not be cumulative and that said other annuities likewise shall not be cumulative but that they shall be paid in full dur- ing each year as provided, if current net income, after she has been paid in full for the current year, is available for that purpose, and that if suf?cient residue net income for that purpose is not available that then said other an- nuities shall be paid prorata out of the remainder of the Exhibit ?xture: I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 65 current net income available for that purpose, I do here- by, to the ends aforesaid, revoke and annul Item 8 of my said Last Will and Testament and substitute therefor, the same to be taken as though originally included therein, an Item numbered reading as follows: 8. I will and direct that my said Trustees (or my Executors during the period between the date of my decease and the time of the discharge of my Executors and the assumption by my Trustees of their duties) shall, as aforesaid, collect and receive the rents, pro?ts, issues, interest and income from my residuary or trust estate, heretofore and hereinafter referred to as ?income?, and, after deducting any and all proper and reasonable ex- penses, pay over, in quarter?annual payments, unto my wife, Jessie Ball duPont, the sum of TWO Hundred Thou- sand Dollars per annum, or such part there? of each year as shall be available in such year for pay- ment thereon out of net income derived during the cur- rent year, for and during the term of her natural life. This annuity shall commence at the time of the date of my death. The said annuity shall be paid in full each year by my Trustees or Executors as aforesaid before any of the annuities mentioned in Item 7 and subpara- graphs thereof lettered to inclusive are paid either in whole or in part, this regardless of the provision in Item 7 of my Will that the annuities therein provided for shall be paid and the other annuities men? tioned in said Item 7 and the said subparagraphs thereof shall be conditional upon there being available funds from the net income, derived during the current year, from the residuary or trust estate, after paying the annuity of Two Hundred Thousand Dollars to my wife, and such other annuities shall be second, subject and Subordinate to the said annuity to her. The said an- nuity to her shall not be cumulative and said other an- nuities also shall be non-cumulative and they shall be paid by my Trustees or Executors as aforesaid in full during each year as provided, only in the event that suf? ?cient net income is available each year for that purpose after her Page-2 Exhibit A 174as: ?scum; .v . in. 1 .- arms-pram. (v.17 rim-wen: Ibdl?vgl?d. at? LAST WELS AND TESTAMENTS BOOK 5, Page 66 annuity has been paid in full for the current year, and if suf?cient residue for that purpose is not available then said other annuities shall be paid primate, each year that there is a shortage, out of the remainder of the net income available in such year for that purpose, and each year, after deducting the said expenses and paying the said annuity of Two Hundred Thousand Dollars 000.00) in full, out of net income received during the cur- rent year as aforesaid for such purpose, and after paying the said other annuities, or such of them as have not been terminated under the terms and conditions attached to each of them, in full, out of the net income for the current year; they shall pay over the remainder, if any, of the net income from my said residuary or trust estate, to my said wife, Jessie Ball anont, for and during the term of her natural life, and upon the death of my said Wife then that my said Trustees or Executors as aforesaid, always ?rst paying each year, in full or prosrata, out of current net income as aforesaid, the said other annuities then ac- crued and thereafter accruing, or such of them as have not been terminated under the terms and conditions at? tached to each of them, shall proceed as follows I hereby ratify and confirm my said Will in all other respects, except that I give my Executors and Trustees authority, in their absolute discretion and without lia- bility for errors in judgment, to make, in whole or in part, in any year, the payments on annuities provided for in Item 7 of my Will before the afOresaid Two Hun? dred Thousand Dollar annuity provided for my wife has actually been paid to her in any year, if in their judgment su?cient income will be available in the current year for payment to her in full of said annuity. .IN WITNESS WHEREOF I have hereunto set my hand and seal this 4th day of March in the year of our Lord one thousand nine hundred and thirty three. Alfred I. duPont (SEAL) Page-3 - . . . . Exhibit A . - Earp durumcraft-??nr??mt?. 5? - ,c-K?wt-V M's-u. a Wr-nikay?h. LAST WILLS AND TESTAMENTS BOOK 5, Page 57 The foregoing instrument consisting of four pages, including this one, at the date hereof, to-wit: the 4th day of March, A. D. 1933, was signed1 sealed, published and declared by the said ALFRED I. DUPONT as and for Codicil to his Last Will and Testament dated the 19th day of November, A. D. 1932 in our presence as witnesses, who, at his request and in his presence and in the pres? ence of each other, have hereunto subscribed our names as witnesses thereto at Jacksonville, Florida. Raymond D. Knight of Jacksonville, Florida S. B. Jennings of Jacksonville Fla Chas Morent of Jacksonville Fla STATE OF FLORIDA BE IT REMEMBERED that COUNTY OF DUVAL on May 13-1935 I duly re? corded the foregoing odicil in the public records of Dnvel County, Florida. J. OLLIE EDMUNDS, County Judge By T. V. Cashen, Jr., Clerk County Judges Court (Seal) Page?4 Exhibit A ?rst?: err.? 2? Hm seesaw-Amer. ?1 rec-7? cw 444-, Amman I. DUPONT LAST AND TESTAMENTS BOOK 5, Page 68 SECOND CODIOIL TO LAST WILL AND TESTAMENT OF ALFRED I. DUPONT. I, ALFRED I. DUPONT, now of Duval County, State of Florida, my home, known as ?Epping Forest?, being near the Cityr of Jacksonville, do hereby make, publish and declare this Second Codicil to my Last Will and Testament dated the 19th day of November, A. D. 1932 as the same was amended by the first Codicil thereto dated the 4th day of March, 1933. ITEM 1. I do hereby alter and amend Item 5 of my said Last Will and Testament by substituting for John F. Lanigan, therein named as one of my Trustees, my son- in-law, Reginald S. Huidekoper, of Washington, D. C., to serVe in his place and stead; and I further alter and amend said Item by substituting for N. Addison Baker, who, under the conditions therein?n?Med, is designated as one of my Trustees, Dr. Francis P. Gaines, who is the President of Washington 86 Lee University, of Lexington, to serve in his place and stead, so that the said Item 5 of my said Last Will and Testament as hereby altered and amended, the same to be taken as though originally so written, shall read as follows; 5. Subject to the legacies and bequests here- inabove set forth, I give, devise and bequeath the entire rest, residue and remainder of my property and estate, real, personal or mixed, in esse and in future, whereso- ever the same may be situated, of which I may die seized and possessed and which may belong to me at the time of my death, or which may be subject to my disposal by Will, unto The Florida National Bank of Jacksonville, 8. bank? ing corporation organized and existing under the laws of the United States of America, with its principal place of business in Jacksonville, Florida, to my Wife, Jessie Ball duPont, to my son-in~1aw, Reginald S. Huidekoper, now residing at Washington, D. C., and to Edward Ball, now residing in Jacksonville, Florida, as Trustees, and unto their successors in trust, to have and to hold said Estate forever, but IN TRUST for the following uses and pur- poses. If the said Reginald S. Huidekoper is not living, or is for any reason unable to Exhibit A wmClzaritable Trusts. 7 Exhibit Page 2 381 So. 2d 1075, 1979 Fla. App. LEXIS 16350, The state attorney generalzrnay enforce a charita- ble trust. Unlike a private trust, Where there are identi?- able bene?ciaries who are the equitable owners of the trust property, the bene?ciaries of a charitable trust are the public at large. Whereas bene?ciaries of a private trust have the power to maintain a suit to enforce the trust, the public must act through some public of?cial to maintain such a suit. 1 Civil Procedure Justiciabiliijy Standing General Overview Estate, Gift Trust Law Trusts Charitable Trusts An entity other than the attorney general can be a proper party to bring suit to enforce a charitable trust. Trustees have been permitted to bring suit against co- trustees, and persons or organizations having a special interest in a trust or a special status under a trust instru- ment are considered to have standing to enforce the trust. In other areas Florida courts have recognized that a party alleging a special interest, an interest beyond that general interest possessed by the public at large, has standing to bring suit. Civil Procedure Parties Intervention [Motions to Intervene Civil Procedure Appeals Standards of Review Abuse of Discretion - A determination by a trial judge on a motion to intervene should not be disturbed unless it clearly ap~ pears that the trial court abused its discretion. COUNSEL: John 13. Corrigan, of Corrigan, Werber Moore, Jacksonville, Richard S. Gebelein, Atty. Gen, Vincent .T. Poppiti, State Sol. State of Delaware. Wil~ mington, Del, for appellant. Fred H.- Kent and William L. Burden, of Kent, Sears, Durden Kent, n. Earl Zehrner, or Bedell, Bedell,? Dirt? mar Zehmer, T. Edward Austin, Jr., A. August Que? 7 Sada, In, of Wildt, Quesada, Brock Skinner, Clande Ogilvie, Jacksonville, for; appellees. Robert L. Shevin, Atty. Gen, Randy Schwartz, Asst. Atty. Gen, amicus curiae. JUDGES: Before uans, Acting Chief Judge. ERVJN, J., and MASON, ERNEST E., Associate Judge, cencur. OPINION BY: MILLS OPINION [*1076] MILLS, Acting chief Judge. The Attorney General of Delaware (Delaware) ap? peals from ?an order of the trial court dismissing his amended complaint against the trustees of the duPont Trust with prejudice and from an order denying Dela? ware's motion to intervene in a separate suit involving the duPont Trust. The appeals were consolidated for review. Alfred l. duPont died testate on 29 April 1935, and his will created the duPont Trust. Under the terms of the trust, after Mrs. duPont's death, the net income of the trust was to be paid over "at convenient intervals" to the Nemours Foundation ?for the purpose of maintain? ing 'Nemours' as a charitable institution for the care and treatment of crippled children, but not of incurables, or the care of old men or old women, and particularly old couples, first consideration, in each instance, being given to bene?ciaries who are residents of Delaware. . . It was further provided that: . . if the net income of my estate should in any year exceed the sum or sums suf?cient to properly provide for the conduct and operation of said "The Ne? mours Foundation?, . . . such surplus in- come may from time to time be used . . . in contributions to other worthy charitable institutions as may be cenducted for the care of, or the care and treatment of, or the care and education of crippled chil~ Sh" Ii. Elle (tare of all men. or of old Uri \r l_-i Uiil (whilx'f?u ill, .illx Hill: Hi such purposes. It is my wish that the peo? ple of Delaware needing the care of such institutions shall lie propel 1y provided for before contributions are made to institu? tions of any other state or states. . . DelaWare ?led a complaint against the trustees of the duPont Trust as trustees and as members, of?cers and directors of the Nemours Foundation, and against certain of . the trustees individually; The complaint Sought injunctive relief, the removal of some of the trus- tees, the appointment of a temporary trustee, sureliargcs and other relief. The complaint was dismissedwithci? prejudice for failure tostate a cause of action. Delaware ?led an amended complaint. Count I of the amended complaint seeks judicial construction of the trust provisions pursuant to Section 73 7.20], Florida Statutes (1977), and asks the court to declare among other things that the charitable purpose of the duPont Trust. has been defeated Count II alleges continuing EXhibit Page 3 381 So. 2d 1075, *g 1979 Fla. App. LEXIS 16350, violations of Section 73 8.12, Florida Statutes (1977), from 1970 ?to the present by the trustees holding unpro- ductive assets, speci?cally the [*1077] stock in St. Joe Paper Company and shares of Florida National Bank of Florida, Inc. Count 111 alleges the Trustees? failure to administer the trust diligently for the bene?t of the bene- ?ciaries. Count IV alleges con?icts of interest in viola? tion of Section 73 7.403, Florida Statutes (1977). Count charges the trustees with willfully subverting the intent of the duPont Trust by refusing the Board of Man- agers of Nemours' requests for funds when the money is available. Count VI alleges additional wrongful acts of the trustees in order to obtain control of the trust. Count VII alleges that the bene?ciaries are suffering irreparable harm as a result of the alleged mismanagement of the trust. The trial court dismissed the amended complaint with prejudice, holding that Delaware did. not have stand- ing to bring the suit. The trial court also pointed out that the amended complaint raised substantially the same questions of law as were raised in the original complaint which was dismissed for failure to state a cause of action. The ?rst question to be resolved by this appeal is whether Delaware has standing to maintain a suit against the duPont trustees. Delaware contends that the Attorney General of Delaware, as the lawful representative of Delaware bene? ?ciaries, has standing to maintain a suit to enforce a charitable trust where the trust speci?es that the primary bene?ciaries are to be residents of Delaware. The Trus? tees I argue that The bene?tFaith?s of :r chariialile trust Vililli." till?- .3 have no starn?lnig in . .. and that only the Attorney General of Florida or a trustee of the trust has the right to enforce charitable trusts being administered in flotilla, unlch tin; ii 11.31. in? strumth or the Florida Legislature provides otherwise. 1 The term "Trustee" refers to Trustees Ball, Belin, Coldewey, Thornton, Florida First Na- tional Bank of Jacksonville, Jacksonville Na- tional Bank, and The Nemourleoundation. Trus? tee Dent ?led a separate brief - supporting Dela? ware's standing to bring suit. As a general rule, only the Attorney General may enforce. a charitable trust. Unlike a privatetrust, where there are identi?able bene?ciaries who are the equitable owners of the trust property, the bene?ciaries of a charitable trust are the public at large. Whereas beneficiaries of a private trust have the power to main- tain a suit to enforce the trust, the public must act through some public of?cial to maintain such a suit. "The purpose of vesting in some public official such as the Attorney Gen? eral the exclusive power to begin proceed?i lugs to enforce charitable trusts is obvious. The persons affected by such trusts are usually some or all of the mem? bers of a large and shifting class of the public. If any member of this class who deemed himself quali?ed might begin suit, the trustee would frequently be sub- jected to unreasonable and vexatious liti- gation. Often no given individual can prove that he will necessarily bene?t from the charity. All may be prospective or possible bene?ciaries, but no one can be said to be a certain recipient of aid. In ul? timate analysis it is the public at large which bene?ts, and not merely the indi? viduals directly assisted. Obviously, there is good reason for vesting in a single au~ thority the discretion and power incident to the enforcement of such trusts, rather than in leaving the matter to the numer? ous, changing, and uncertain members of the group directly to be aided.? Bogart, Trusts and Trustees, 2d Ed. Revised 4l1 r?r?x However, it has been recognized that an en? tity other than the Attorney General can. be a proper party to bring suit to enforce a charitable trust Trustees: heir: i1 germinal it: luring: nllii par-As? . 1, sons or organizations having a special interest in a trust or a special status under a trust instrument are Cuiib?lrlc?i'utl to have standing to enforce the trust. Trusts and Trustees, 2d Ed. Revised, 412, 413, 414 . (1977), isch, Freed, Schlacht'er,' Charities and Charita? ble Foundations, 713, 718, 719 (1974); Scott on' Trusts, 3d Ed. 391 (1967). 'In'other areas Florida courts have recognized that a. party alleging a special interest, an interest beyond that general interest pos- sessed by [*1078] the public .?at large, has standing to bring suit. See United States Steel Corp. v. Save Sand Key, 303? Sa-Zd 9' (Flat 1974). The reason for requiring a special interest is the same, reason for the general rule that only the Attorney General may bring suit to enforce a charitable trust: "If it?were otherwise there would be no A end to potential litigation. against a given .. Exhibit Page 4 381 So. 2d 1075, 1979 Fla. App. LEXIS 16350, defendant, whether he be a public of?cial or otherwise, brought by individuals or residents, all possessed by the same gen? eral interest - . . Askew v. Hold the Bulkhead-Save our Bays, 269 Sold 696 (Fla. 1972)- We believe that the people of Delaware have a spe~ cial interest in the enforcement of the duPont Trust- The terms of the trust give the people of Delaware 3 special status not enjoyed by the public at large. The Attorney General of Delaware represents the people of Delaware and is the proper party to bring suit on their behalf. We therefore reverse the trial court and hold that the Attorney General of Delaware has standing to main? tain this action. We also hold that the amended complaint states a cause of action. Generally, the complaint alleges activi? ties which indicate that the trustees have violated Section 738.12, that they have failed to administer the trust for the bene?t of the bene?ciaries and have failed to treat the trust assets as would aiprudent trustee, and that Trus? tees Ball, Belin, Coldewey and Thornton have con?icts of interest which prevent them from acting in the best interest of the trust. We affirm the trial court's order denying Delaware's motion to intervene in the Florida First National Bank of Jacksonville 12. Austin case. A determination by a trial judge on a motion to intervene should not be dis? turbed unless it clearly appears that the trial court abused its discretion. Wagisch v. Tiger, 193 So.2d 187 (Fla. 4th DCA 1966). We remand the State of Delaware v. Ball, at case to the trial court for further action consistent with this opinion. ERVIN, J., and MASON, ERNEST 13., Associate Judge, concur. Exhibit EXHIBIT 9 ExhibitH? IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR COUNTY, FLORIDA. CASE NO.: DIVISION: CV-I J.C. BELIN and NATIONSBANK, N.A., as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont, deceased, Plaintiffs, VS. HARRY L. SHORSTEIN, State Attorney in and for the Fourth Judicial Circuit of the State of Florida; W.L. THORNTON and ALFRED DUPONT DENT, as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. dupont, deceased; THE NEMOURS FOUNDATION, a not for profit corporation organized under the laws of Florida; and ROBERT A. BUTTERWORTH, as Attorney General of the State of Florida, Defendants. FINAL JUDGMENT RECEWED 7 $94 JACKSONVKLE This Cause is before the Court upon the application of all the 'parties for the entry_of final judgment. .In support of such application, the parties have submitted a Stipulation of FaCts and proposed Conclusions of Law executed by all parties and their counsel of record. Also submitted, in support of their application for final judgment, is an Agreement of the Parties reached during Court ordered mediation which sets forth the deviation from the Will sought by the parties, and for which Court approval is requested, together with specified actions to be taken by the Trustees to implement such agreement. The Court has reviewed the Stipulation of Facts and Conclusions of Law and finds that the representations set forth therein are reasonable and, therefore, adopts them as its own. Accordingly, and on the basis of the Stipulation of Facts and Conclusions of Law, the Court finds and concludes as follows: STATEMENT 9E FACTS HISTORY OF THE TRUST 1. Alfred I. duFont, a resident of Duval County, Florida, died on April 29, 1935, leaving a Last Will and Testament and two (collectively; the ?Will?), which were admitted to galleria thereto probate by the County Judge of Duval County, Florida, by order dated May 24, 1935.? 2. I The Ekecutors of the Estate of Alfred I. duPont (the "EState") administered'that Estate, paid the debts of the Estate, made distribution ofthe assets of the Estate in accordance with -the provisions of the Will and Codicils, and were discharged as Exhibit . executors by order of the County Judge of Duval County, Florida, dated December 30, 1939. 3. The Will,_in Item 5, provided for the Creation of the Alfred I. duPont Testamentary Trust (the "Trust?), which Trust was to receive the entire residuary estate. It appointed three individual Trustees of the Trust, Mrs. Jessie Ball duPont, Mr. duPont?s widow; Mr. Edward Ball, Mr- duPont?s brother?in?law; and Mr. Reginald Huidekoper, Mr. duPont?s son?in?law. The corporate Trustee was the Florida National Bank of Jacksonville. Mr. duPont was the primary shareholder in The Florida National Bank of Florida? and, therefore, controlled the management and operation of that bank. Except for the specific annuities set out in the Will, Mrs. duPont was the sole beneficiary of the Trust during her lifetime. 4. The Trustees of the Trust received the residuary estate from the executors under the Will in 1939. S. 'The individuals and the bank designated under the Will to serve as Trustees caused the creation of The Nemours Foundation 1 1? 7 . i my?? . ;\i4ii :Ji-ruilgiFlorida. The Trustees were named to serve as directors on the .Board of Directors of Nemours. 6. h?The individual Trustees received, under the provisions of" Item 6'of the Will?-compensation in the amount of $5,000 per annum, -and the corporate Trustee received $2,960 perannum. Also under Ithe provisions of Item Slof the Will, each_member of the Board of Managers Of Nemours received compensation of $1,000?per annum.'The . Exhibit Trustees and the members of the Board of Managers still receive only that compensation provided for in the Will. 7. . The 'Trustees, as IDirectors E?f Nemours, caused t1) be constructed, maintained, and operated by Nemours on the grounds of Nemours in Wilmington, Delaware, the Alfred I. duPont Institute, a charitable hospital operated for the care and treatment of crippled children. Mrs. duPont, after completion of the hospital, irrevocably assigned to Nemours an undivided 12 percent of her inCome from the Trust, front which the cost of operating the hospital at Nemours was provided. 8. Reginald S. Huidekoper died in 1943, and Elbert Dent, a son?in?law of Alfred I. duPont, pursuant to the provisions of Item 1. of the Second. Codicil tx3 Mr. duPont?s ?Will, succeeded Rh: Huidekoper as a Trustee of the Trust. 9. Mr. Elbert Dent died in May, 1965, leaving three Trustees, Jessie Ball duPont; Edward.Ball; and The Florida National Bank of Jacksonville, the corporate Trustee. The death of Mr. Dent leait tile tjvo JJE?NillLilb 31misi?,ii predicament. Mr. Dent had been the youngest individual Trustee. Mr. Ball was 78 years old, and years'old._ 10. At a specialmeeting of the Trustees of the TruSt helu.on' '?May 10, 1965, at Which all of the-Trustees were'presentg-the vacancy created by the death of leertDent was filled by the election-of William.B- Mills, as TrUstee- by a VOte of_all the surviving Trustees. . Exhibit . 11. The ages and infirmities of the surviving individual Trustees substantially limited their ability to continue management of the Trust assets and to oversee the operation of Nemours. Both Mr. Ball and Mrs. duPont had lived long beyond the life expectancy which they had at the time of Mr. duPont's death. Therefore, the Trustees, at the meeting of May 10, 1965, upon advice of counsel, also elected three additional individual Trustees: Tom S. Coldewey, .Alfred (3. Dent, and..A.L. Hargraves. Mr. Hargraves resigned as a Trustee, and his resignation was accepted in 1966. 12. The resignation of Mr. Hargraves, the declining health of Mrs. duPont, and health problems of two of the other individual Trustees, together with business problems and challenges facing the Trust and its corporate assets, caused concern to the Trustees. Thus, in December of 1967 two additional individual Trustees were elected: J.C. Belin and W.L. Thornton. This election increased the number of Trustees to seven individual Trustees and the corporate Trustee. PRIOR PROCEEDINGS 13, _The Will provides_in-Item 8,-et. seg., that upon the death ofqus. duPont, the-Trustees will pay all of the income of Ithe Trust, after the payment of the specific annuities, to Nemours. - The Trustees, upon the death of Mrs. duPOnt, filed CaSe-No,7le7001 'in the 'Circuit' Court. Of buval County, Florida, ?to Wreceive' Exhibit instructions as to the authorized use of the substantial additional funds previously paid to Mrs. duPont. 14. The Court issued its Final Judgment onEDecember 31, 1971, in which it defined the phrase "crippled children,? as used in the Will, as meaning "persons under twenty?one years of age, who by reason of a physical defect or infirmity, whether congenital or acquired by accident, injury, or disease, has been deprived of strength, activity, or capability for service or use, in any part of the human body" and found that the intention of Mr. duPont in his Will was to provide for and to require the establishment of a "charitable institution,? which was to be primarily and predominantly a hospital. The phrase "care of old men or old women and particularly old couples? was defined to include those over sixty five years of age who are in need of supportive or alleviating medical or para?medical care beyond mere food, clothing and shelter. 15. Trustee Mills, prior to June, 1976, had raised the ., f. Lilli?: icigg :1 OJ: .415 Jw; . ., Coldewey, Dent, and Thornton. The concern as to the legality of the elections_was compounded by the fact that a very substantial "new hospital: was fbeing constructed. at 'Nemours in .Wilmington, iDelaware, and contracts in excess of $60 million dollars fOr the' constructiOn of that hospital. were Ibeing ?negotiated by the ,Trusteesl _Therefore, on June 15, 1976, the TrusteeS'filed under_ Exhibit the continuing supervision of the court, a Petition for Further Definition and for Instructions to Implement Instructions. 16. The Petition for Further Definition asked the Court to confirm that Mr. duPont?s Will provides that the Trustees have the power to increase the number of individual Trustees to a number greater than three (3), or, in the alternative, to find that the Court, sitting as a Court of equity, has the power to ratify the election of those Trustees for the conservation, protection, and betterment of the Trust. In its opinion in Mills v. Ball, 380 So.2d 1134 (Fla. DCA 1980), the District Court held at page' 1141: ?The trial court found the election of the additional trustees to be valid under either or both of the alternatives stated above the broad powers of the Will gave the Trustees power to amplify their number, and (2) even if the Will did not grant the trustees such power, the court, under the evidence presented, was authorized to approve and ratify, and did approve and ratify, the appointment of the additional trustees. While we disagree with the former, we agree with the latter." The Court ratified the election of the four specific Trustees r" 1, 1,11 e1ected..by' the two surviving 14. pi?n (Margy-mgr.- m??uijgw-rI-t awry-a ram wire-rota? n?rtvw-ww-u A A . 3? . -.- arm: .- -r renew; ALFRED I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 61 Executors. In case of the failure to qualify or death or resignation of any one or more of the aforesaid Execu- tors and/or of the successor or successors designated to succeed any certain Executor, the surviving Executor or Executors and/or successor or successors designated to Substitute for certain Executors who may not qualify or who may die or resign shall have all of the powers to act, alone or together, as the case may be, which are here- in given to my three Executors jointly. During the period of their administration of my Estate my Executors shall have, and they are hereby given, all of the powers given anywhere in this Will to my Trustees. It is also my will and desire, and I hereby direct, that my said Trustees hereinbefore named, or any suc- cessor, shall be permitted to qualify and serve as such Trustees, as aforesaid, in any State of the United States, or in any foreign country, without the said Trustees being required to give bond or security, in any manner whatsoever, for the proper performance of their duties as such Trustees. I authorize and direct that each of my with the exception of EdWard Bell, who, being herein otherwise provided for, shall receive no he paid for their services the sum of One Hundred Thousand Dollars payable one-half at the end of the ?rst full year?s service beginning at the time my Will is probated, one-fourth at the end of the next year, one- eighth at the end of the next year, one~siXteenth at the end of the next year, and so on in like decreasing proper; tion until my Executors are discharged, at which time the total unpaid balance shall be paid. In the event that an Executor shall die or resign during any year he shall receive for his services the pro- portiouate part of what he would have received for the whole year which the number of days that he served bears to three hundred sixty ?ve. Any Executor succeeding another shall receive only that proportion of the One Hundred Thousand Dollars total base fee for the period during which he has served which would have been received by the Executor ?rst appointed had he served over that period. Each Executor shall Page-20 Exhibit -. mummy: tel-51?? ne?xs-c v: u?xs 3r:- wnwv?mw' ?aw, my. . . ,i-V ?Pu1.4- 97:1 went. .- Vans." . v; .7775 LAST WILLS AND TESTAMENTS BOOK 5, Page 62 receive the fee, or proportion thereof, herein provided to be received by him or her over the period that he or she serves, and no Executor shall receive any part of the fee herein provided to be paid to any other Executor except where he be the successor of such other executor and receive as such the proportionate share of the original Executor?s fee which is herein provided to be paid to his successor. No successor of Edward Ball shall receive any part of his legacy, the same being an outright legacy to him covering also his services as Executor and Trustee, but any successor to EdWard Ball shall receive the same proportion of the base fee of One Hundred Thousand Dollars which any other Execu- tor would receive over the same period. I hereby absolve my said Executors and Trustees from any liability to my estate, or to the bene?ciaries hereunder, for any loss to them or to my said estate so long as they act honestly and in good faith. ITEM 12. I hereby nominate and appoint my beloved wife, Jessie Ball duPont, as Guardian of Adelaide Camille Denise duPont, to be vested with all such powers and control as such guardianship confers. She shall serve Without bond. It is my will and desire, and I hereby direct, that my Last Will and Testament shall be probated and recorded in the City or County of my legal residence at the time of my death. IN WITNESS WHEREOF I have hereunto set my hand and seal this 19th day of November in the year of our Lord, one thousand nine hundred thirty two (1932). Alfred I anont (SEAL) Page?21 Exhibit {may . m5;- fri??h?wi?v??t ?wright.? 0 Avian? {e'rn'vw~'yr~xr1: r7." new. suit. r. p: - .A-rr- 4 - LAST WILLS AND TESTAMENTS BOOK 5, Page 63 The foregoing instrument, consisting of twentyr two pages, including this one, at the date hereof, to-wit: the 19th day of November, A. D. 1932, was signed, sealed and published by the said ALFRED I. DUPONT as, and declared to be, his Last Will and Testament in the pres- ence of us, who at his request and in his presence, and in the presence of each other, have subscribed our names as Witnesses hereto. S. B. Jennings of Jacksonville Fla. R. Pearce Markham of Jacksonville Fla. Raymond D. Knight of Jacksonville, Fla. STATE OF FLORIDA BE IT REMEMBERED that COUNTY OF on May 134935 I duly re- corded the foregoing Last Will and Testament in the public records of Duval County, Florida. J. OLLIE EDMUNDS, County Judge By T. V. Cashen, Jr., Clerk County Judges Court (Seal) Page-22 Exhibit 45?: miz-u - Ar~_ ?~?mm4ryw Irv-mm awn-v: err-war-- 4.45:, z: via-w v-rrvvu m? we: tru- rhr-vv?r?m ?aws-m 1- r-T r?m? a 71'. v.13, in?rm?am??u? - AL 9A.: "av-rt:- 1- gain" a, ALFRED I. DUPONT LAST WELLS AND TESTAMENTS BOOK 5, Page 64 0 I I TO LAST WILL AND TESTAMENT OF ALFRED I. DUPONT. I, AEFRED I. of Duval County, near the City of Jacksonville, State of Florida, do hereby make, publish and declare this Codicil to my Last Will and Testament dated the 19th day of November, A. D. 1932. ITEM 1. Having become impressed, after a study of my said Will and deliberate consideration of world con- ditions, that I have not in my Will properly protected . the interests of my wife, Jessie Ball duPont, against pos- sible eventualities, and desiring that she shall receive, to commence at the time of the date of my death, an annuity of Two Hundred Thousand Dollars or such part thereof as shall be available each year out of current net income for the payment thereof, before any of the annuities mentionedin Item 7' and sub-paragraphs there? of lettered to inclusive are paid either in Whole or in part, this regardless of the provisions in Item 7 of my Will that the annuities therein provided for shall be paid and desiring that such annuity to my wife should be paid to her ?rst out of the net income from my residuary or trust estate and that the other annuities mentioned in said Item 7' and said sub?paragraphs thereof shall be conditional upon there being funds from the net income from my residuary or trust estate after paying; the annuity of Two Hundred Thousand Dollars 000.00) to my wife and that such other annuities should be second, subject and subordinate to the said annuity to her, and desiring that said annuity to her shall not be cumulative and that said other annuities likewise shall not be cumulative but that they shall be paid in full dur- ing each year as provided, if current net income, after she has been paid in full for the current year, is available for that purpose, and that if suf?cient residue net income for that purpose is not available that then said other an- nuities shall be paid prorata out of the remainder of the Exhibit -, - ?xture: I. DUPONT LAST WILLS AND TESTAMENTS BOOK 5, Page 65 current net income available for that purpose, I do here- by, to the ends aforesaid, revoke and annul Item 8 of my said Last Will and Testament and substitute therefor, the same to be taken as though originally included therein, an Item numbered reading as follows: 8. I will and direct that my said Trustees (or my Executors during the period between the date of my decease and the time of the discharge of my Executors and the assumption by my Trustees of their duties) shall, as aforesaid, collect and receive the rents, pro?ts, issues, interest and income from my residuary or trust estate, heretofore and hereinafter referred to as ?income?, and, after deducting any and all proper and reasonable ex- penses, pay over, in quarter?annual payments, unto my wife, Jessie Ball duPont, the sum of TWO Hundred Thou- sand Dollars per annum, or such part there? of each year as shall be available in such year for pay- ment thereon out of net income derived during the cur- rent year, for and during the term of her natural life. This annuity shall commence at the time of the date of my death. The said annuity shall be paid in full each year by my Trustees or Executors as aforesaid before any of the annuities mentioned in Item 7 and subpara- graphs thereof lettered to inclusive are paid either in whole or in part, this regardless of the provision in Item 7 of my Will that the annuities therein provided for shall be paid and the other annuities men? tioned in said Item 7 and the said subparagraphs thereof shall be conditional upon there being available funds from the net income, derived during the current year, from the residuary or trust estate, after paying the annuity of Two Hundred Thousand Dollars to my wife, and such other annuities shall be second, subject and Subordinate to the said annuity to her. The said an- nuity to her shall not be cumulative and said other an- nuities also shall be non-cumulative and they shall be paid by my Trustees or Executors as aforesaid in full during each year as provided, only in the event that suf? ?cient net income is available each year for that purpose after her Page-2 Exhibit 174as: ?scum; .v . in. 1 .- arms-pram. (v.17 rim-wen: Ibdl?vgl?d. at? LAST WELS AND TESTAMENTS BOOK 5, Page 66 annuity has been paid in full for the current year, and if suf?cient residue for that purpose is not available then said other annuities shall be paid primate, each year that there is a shortage, out of the remainder of the net income available in such year for that purpose, and each year, after deducting the said expenses and paying the said annuity of Two Hundred Thousand Dollars 000.00) in full, out of net income received during the cur- rent year as aforesaid for such purpose, and after paying the said other annuities, or such of them as have not been terminated under the terms and conditions attached to each of them, in full, out of the net income for the current year; they shall pay over the remainder, if any, of the net income from my said residuary or trust estate, to my said wife, Jessie Ball anont, for and during the term of her natural life, and upon the death of my said Wife then that my said Trustees or Executors as aforesaid, always ?rst paying each year, in full or prosrata, out of current net income as aforesaid, the said other annuities then ac- crued and thereafter accruing, or such of them as have not been terminated under the terms and conditions at? tached to each of them, shall proceed as follows I hereby ratify and confirm my said Will in all other respects, except that I give my Executors and Trustees authority, in their absolute discretion and without lia- bility for errors in judgment, to make, in whole or in part, in any year, the payments on annuities provided for in Item 7 of my Will before the afOresaid Two Hun? dred Thousand Dollar annuity provided for my wife has actually been paid to her in any year, if in their judgment su?cient income will be available in the current year for payment to her in full of said annuity. .IN WITNESS WHEREOF I have hereunto set my hand and seal this 4th day of March in the year of our Lord one thousand nine hundred and thirty three. Alfred I. duPont (SEAL) Page-3 - . . . . Exhibit . - Earp durumcraft-??nr??mt?. 5? - ,c-K?wt-V M's-u. a Wr-nikay?h. LAST WILLS AND TESTAMENTS BOOK 5, Page 57 The foregoing instrument consisting of four pages, including this one, at the date hereof, to-wit: the 4th day of March, A. D. 1933, was signed1 sealed, published and declared by the said ALFRED I. DUPONT as and for Codicil to his Last Will and Testament dated the 19th day of November, A. D. 1932 in our presence as witnesses, who, at his request and in his presence and in the pres? ence of each other, have hereunto subscribed our names as witnesses thereto at Jacksonville, Florida. Raymond D. Knight of Jacksonville, Florida S. B. Jennings of Jacksonville Fla Chas Morent of Jacksonville Fla STATE OF FLORIDA BE IT REMEMBERED that COUNTY OF DUVAL on May 13-1935 I duly re? corded the foregoing odicil in the public records of Dnvel County, Florida. J. OLLIE EDMUNDS, County Judge By T. V. Cashen, Jr., Clerk County Judges Court (Seal) Page?4 Exhibit ?rst?: err.? 2? Hm seesaw-Amer. ?1 rec-7? cw 444-, Amman I. DUPONT LAST AND TESTAMENTS BOOK 5, Page 68 SECOND CODIOIL TO LAST WILL AND TESTAMENT OF ALFRED I. DUPONT. I, ALFRED I. DUPONT, now of Duval County, State of Florida, my home, known as ?Epping Forest?, being near the Cityr of Jacksonville, do hereby make, publish and declare this Second Codicil to my Last Will and Testament dated the 19th day of November, A. D. 1932 as the same was amended by the first Codicil thereto dated the 4th day of March, 1933. ITEM 1. I do hereby alter and amend Item 5 of my said Last Will and Testament by substituting for John F. Lanigan, therein named as one of my Trustees, my son- in-law, Reginald S. Huidekoper, of Washington, D. C., to serVe in his place and stead; and I further alter and amend said Item by substituting for N. Addison Baker, who, under the conditions therein?n?Med, is designated as one of my Trustees, Dr. Francis P. Gaines, who is the President of Washington 86 Lee University, of Lexington, to serve in his place and stead, so that the said Item 5 of my said Last Will and Testament as hereby altered and amended, the same to be taken as though originally so written, shall read as follows; 5. Subject to the legacies and bequests here- inabove set forth, I give, devise and bequeath the entire rest, residue and remainder of my property and estate, real, personal or mixed, in esse and in future, whereso- ever the same may be situated, of which I may die seized and possessed and which may belong to me at the time of my death, or which may be subject to my disposal by Will, unto The Florida National Bank of Jacksonville, 8. bank? ing corporation organized and existing under the laws of the United States of America, with its principal place of business in Jacksonville, Florida, to my Wife, Jessie Ball duPont, to my son-in~1aw, Reginald S. Huidekoper, now residing at Washington, D. C., and to Edward Ball, now residing in Jacksonville, Florida, as Trustees, and unto their successors in trust, to have and to hold said Estate forever, but IN TRUST for the following uses and pur- poses. If the said Reginald S. Huidekoper is not living, or is for any reason unable to Exhibit wm