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July 14, 2021 RE: in Re Stuckey Revocable Trust STATE of MICHIGAN COURT of APPEALS

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July 14, 2021 RE: in Re Stuckey Revocable Trust STATE of MICHIGAN COURT of APPEALS DT: July 14, 2021 RE: In re Stuckey Revocable Trust STATE OF MICHIGAN COURT OF APPEALS Happy Birthday Elizabeth Hobbs and Jessica McKenna of Kemp Klein. Their combined birthday is July 31st. On July 13, 1908, a unique incident occurred. The New York Giants were playing the St. Louis Cardinals.i Fred Tenney, then on first and his teammate pitcher, Dummy Taylor is on third. In an effort to draw a throw to second to allow Dummy to steal home, Fred steals second. Catcher, Bill Ludwig is non pulsed and doesn’t throw. Tenney then imitates Germany Schaefer and steals first. Ludwig still does nothing. Tenney then steals second again. Taylor dies on third, but the Giants, with you guessed it, Fred Merkle of Merkle’s’ Boner Fame, prevail. Major League baseball is experimenting with the independent Atlantic league on stealing first base. Not as Fred Tenney did it but in a new refreshing way. On a ball a catcher does not catch in flight and there is no one on base, the batter can run to first and can be thrown out if he commits and the throw to first beats him and achieves first base if it doesn’t. Lloyd McClendon, the Pirate manager was irritated at an ump calling his runner out. Lloyd was ejected. He picked up first base and stole it. He took it to the club house. i Purists should note I am correct despite “The Baseball Chronology” saying the Cards played Boston on that date. Caveat: MCR 2.119, MCR 7.212 and 7.215 take effect May 1, 2016 on Propriety of citing unpublished cases RE: In re Stuckey Revocable Trust • Trustee Duty – and Power. Impartiality Among Beneficiaries • Special Value v Market Value This case surfaced when scrivener appointed two siblings as Co-Trustees. When their personal interests conflicted, a decision on the sale of real estate ended in deadlock. The lower Court gave the parties time to agree and upon their failure to do so, appointed a retired Probate Judge as sole trustee. Not relying on trustee powers, the successor approached the Probate Court for approbation which was granted. Appellant raised many issues of error in the lower Court and more on Appeal. Of interest in the Opinion of affirmance is a fine delineation of how to be an impartial trustee which practitioners should learn. 1. Look to good of the whole – “What is best for the trust and trust beneficiaries”. 2. As the successor trustee testified “between two beneficiaries, one had to lose.” 3. Set forth a due diligence basis to support your decision. The Court also points out that despite supervision, the trustee retains power to act emanating out of the document “except as provided by Court Order or other law.” MCL 700.7201(2). [I would have added specifically MCL 700.7105(2)]. The Court seems to limit “Special Value” as a guiding factor in determining how much and to whom sentimental value rather than pecuniary. The Court cites MCL 700.1503(2)(H) but lays emphasis on non-appearing word “sentimental.” Here the facts may have supported Appellant being an owner of adjoining property if properly pleaded. It is noteworthy that 700.1503 deals with portfolio management and not disposition. Also note, the precedent used to support the analysis is foreign. If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS In re ROBERT M. STUCKEY AND BERNICE G. STUCKEY REVOCABLE TRUST. CHARLES H. MIEL, successor trustee of the UNPUBLISHED ROBERT M. STUCKEY AND BERNICE G. June 17, 2021 STUCKEY REVOCABLE TRUST, No. 354190 Appellee, Montcalm Probate Court LC No. 2018-033079-TV v PATRICIA S. WYBENGA, Appellant. Before: BOONSTRA, P.J., and MARKEY and SERVITTO, JJ. PER CURIAM. Appellant Patricia S. Wybenga (Patricia)1 appeals by right the probate court’s order authorizing the successor trustee of the Robert M. Stuckey and Bernice G. Stuckey Revocable Trust (the Trust), Charles H. Miel (Miel), to sell a portion of the Trust’s real estate to Robert A. Stuckey (Robert).2 We affirm. I. PERTINENT FACTS AND PROCEDURAL HISTORY Robert M. and Bernice G. Stuckey (Bernice) were married and had seven children: Sandra J. Stuckey (Sandra), Sharon G. Fowler (Sharon), Judith N. Stuckey (Judith), Gregory W. Stuckey 1 Because several of the beneficiaries of the trust have the same surname, we will refer to all beneficiaries by their first names. 2 For ease of reference, we will refer to Robert A. Stuckey as Robert, and to Robert M. Stuckey as Robert M. -1- (Gregory), Jane S. Kerr (Jane), Patricia, and Robert. Robert M. and Bernice executed a revocable trust in July 2000, and appointed Robert and Patricia to be successor co-trustees. Bernice died in August 2000, and Robert M. died in February 2011. After their parents’ deaths, Robert and Patricia began administering the Trust, but frequently they could not agree on how to manage trust assets. The primary assets of the Trust were real estate parcels. In October 2018, Robert petitioned the probate court to supervise the Trust to the extent necessary to resolve the conflict between the co-trustees. In response to the petition, Patricia agreed that the primary assets remaining to be distributed were real property parcels and that she and Robert had been unable to agree on their sale; she further agreed that the probate court should supervise the Trust’s administration. The response asked the probate court to order that the real property be listed with a broker with terms agreed upon in advance. The response also sought to have the trial court “Order the performance of the contract unilaterally entered into by Co-Trustee Robert A. Stuckey with the Trust property neighbor regarding a septic issue” or otherwise “resolve this outstanding contract and real estate issue.” Attached as an exhibit to Patricia’s response was a letter from Robert to Darlene Schilling (Schilling), dated December 13, 2011. In the letter, Robert wrote that the Trust “would like to offer to you for sale the 100’ x 100’ piece of land to the south of your mother’s property in the South Shore Plat” for $6,000. He wrote that it was a condition of the purchase that Schilling pay for the boundary survey and any revisions to the plat that may be necessary. The letter suggested that Robert knew that Schilling wanted to purchase the property for the installation of a septic system for her neighboring property. However, he wrote that Schilling could not begin construction of the septic system before the “agreement” was in place.3 The probate court held a hearing on the petition in November 2018, and entered an order concerning the continued administration of the Trust on December 6, 2018. The probate court ordered Robert and Patricia to list all the parcels with a realtor within 28 days and ordered the sale of the property for as near as possible to twice the state equalized value. The court did not specifically address the issue of the agreement with Schilling. In July 2019, Patricia petitioned the probate court for instructions, alleging that the Trust had entered into a listing agreement for the 22 parcels still owned by the Trust with a realtor, Richard Adgate (Adgate). Adgate had sold four properties for $64,200, and the remainder had offers that the Trust had not yet accepted. More specifically, Patricia alleged that she and her husband had offered to purchase the parcels that were known as the “Rocky Field Farm” for $210,000, but that Robert had refused to allow the Trust to accept the offer. Patricia also stated in her petition that Schilling was unhappy with the purchase of the 100- by-100-foot parcel for which she had paid $6,000. The parcel was apparently too small to legally construct a septic system on the property, and Schilling was purportedly threatening to sue for the return of her $6,000. The petition alleged that Schilling had offered to purchase a full acre of land 3 Patricia’s response did not clarify precisely what the dispute was concerning the property sold to Schilling, or what sort of performance she sought; she did elaborate somewhat in her petition for instruction in 2019. -2- for her septic system for $10,000, as long as she received credit for the $6,000 already paid, but this offer remained unaccepted by the Trust. The petition asked the probate court to instruct the co-trustees regarding sale of any unsold real estate owned by the Trust.4 In July 2019, the probate court entered an order compelling Robert and Patricia to agree on terms of sale for the remaining parcels within 60 days. The court ordered that if they could not agree, it would remove them as trustees. Robert and Patricia were unable to agree on the terms of the sale; and so, on October 11, 2019, the probate court removed them as trustees and appointed Miel, a retired judge, to serve as the sole trustee. In May 2020, Miel petitioned the probate court for authority to sell the Trust’s real estate. 1 The petition stated that six parcels had been listed for sale and had not sold in more than 1 /2 years; accordingly, Miel asked for permission to reduce the prices. The petition also stated that Sharon and Sandra had offered to purchase the parcel designated as “Parcel C” of Rocky Field Farm for $40,000, and that Robert and Judith had offered to purchase “Parcel A” of Rocky Field Farm for $22,375.
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