Skill

I don't understand why Henry Mackall did not tell Joanne Barnes to send Jean O'Connell the final estate account as the family asked, or why he made it appear that the accountants's agenda was Jean O'Connell's agenda.

The most important thing to find out, and as soon as possible, is whether it is members of your family or the accountants who are creating the conflict and confusion that covers the accounting trails. Is it the family or is it the accountants who make it appear as if it is the family? This is pivotal. Secrecy is fatal to the family and essential to the accountants.

Family's agenda

I was expecting the family's agenda to be carried out:

(1985.05.08+ (Jean OConnell's memo of her phone call to Joanne Barnes)
"So Kaiser-Hilton.  Joanne - 549-7800
 My son Tony called.  He said he wanted very much to be the full trustee with an agent to receive notices and processes from the court & commissioner as in the May 8th letter.  Would First thing is to have the final accounting based on same figures as in the 1st accting.  Send it to me- do I have to sign it"
(Editing note: The following was apparently what Joanne Barnes told Jean OConnell)
call- will do draft of final acting. Deed to property-convey to court.  Needs how much

I was expecting the family's agenda to be carried out:

Accountant's invisible agenda

I did not know of the accountant's agenda, and each step came as a surprise over the approximately next fourteen months:

(1985.05.08+ (Jean OConnell's memo of her phone call to Joanne Barnes)
"So Kaiser-Hilton.  Joanne - 549-7800
 My son Tony called.  He said he wanted very much to be the full trustee with an agent to receive notices and processes from the court & commissioner as in the May 8th letter.  Would First thing is to have the final accounting based on same figures as in the 1st accting.  Send it to me- do I have to sign it"
(Editing note: The following was apparently what Joanne Barnes told Jean OConnell)
call- will do draft of final acting. Deed to property-convey to court.  Needs how much

The accountant's did not tell me their agenda so each step came as a surprise over the approximately next fourteen months. I thought the accountant's agenda was Jean O'Connell's agenda because (1) the accountants made it appear as Jean O'Connell's agenda and (2) who would have thought otherwise? imagination.

Needs how much

1985.08.16   (Joanne Barnes to Jean O’Connell)
"RE: Estate of Harold M. O'Connell
Dear Mrs. O’Connell:
Your son requested that I furnish him copies of the Court Accountings that had been filed for the Estate.  I have sent them on to him today.  I am also enclosing a copy of the schedule which I believe reflects the fraction of the estate’s one-half interest in each property to which you and the Trust are entitled.   If the transfers are made in these percentages, you would then own 56.475% of each property (50% owned individually plus 12.95% of one-half interest in a property.  If you and the Trust chose at some time in the future to exchange all or part of an interest in a property,  I believe it should be done based on the then current fair market value of the properties.  In such case,  I would recommend that you have the properties appraised by a qualified real estate appraiser.  With regards to your request that I serve as co-trustee of the Trust with your son, I regret that I must decline to be either co-trustee or act as agent to receive notices and processes for him.   Please call me and we can discuss this further.
Very truly yours,
Joanne L. Barnes
Cc: Mr. Anthony M. O’Connell

1986.01.27   (Edward White to Jean O'Connell) (No copy to another) (I did not know of this letter until I found it in my mother's papers after her death on September 15, 1991)
"At long last we have a signed Agreement concerning the funding of the Trust.  The Agreement is enclosed. The only difference between this Agreement and the previous agreement which I had drafted is the change in the percentages of ownership between you and the Trusts.  Originally, Ms. Barnes had computed the ownership of the Trust at 43.525.  She and Mr. Mackall and I now agree that the figures should be 46.0994.  The Agreement also contains a provision in paragraph 5 that will be reimbursed for the principal of all real estate taxes on that property.      
Mr. O'Connell was unwilling to agree to pay interest on the real estate tax advancements.  While I am at a loss to understand his attitude, I am of the opinion that we would be best served by signing the Agreement as is.
Ms. Barnes has computed that through 1984 you paid taxes in the amount of $13,841.24.   Please sign the Agreement and return it to me as soon as possible, and I will forward it to Mr. Mackall for the Co-Trustees signature and filling with the Commissioner of Accounts.  At that point the trust will then be funded and the responsibility for filing accounts and inventories will be that of the Trustees.  
We can then have Ms. Barnes complete the final accounting for the Estate and the matter will be closed.
Sincerely, Edward J. White"

Deed to property-convey to court.

1985.10.23   (Edward White to Jean O'Connell) (No copy to another) (I did not know of this letter until I found it in my mother's papers after her death on September 15, 1991)
"Enclosed is the Agreement [which Mr. Mackell and I discussed.  If it meets with your approval, I would appreciate your signing it and returning it to me so that I might forward it to him for the signatures of the Co-Trustees.  This document should serve both as the Agreement and as the receipt by the Trustees for the Trust property.
Sincerely, Edward J. White

1985.10.29   (Edward White to Henry Mackall) (No copy to another) (I did not know of this letter until Henry Mackall sent me a copy on August 29, 1995)
"Enclosed is an Agreement along the lines of that discussed by us previously, which my client has signed. 
Ms. Jo Ann Barnes, of Bruner, Kane & McCarthy Accountants, previously has furnished Mr. O'Connell with the numerical data which explains the derivation of the percentages reflected in the Agreement. 
If you have any additions or corrections to it, please let me know.
Sincerely, Edward J. White"

will do draft of final acting.

1986.04.10   (Edward White to Joanne Barnes, copy to Jean O'Connell )
"I have agreed with Anthony O'Connell's attorney that we will provide them with a draft of the final accounting in the Harold O'Connell Estate.  This, I think, will allay all of the suspicions that have arisen on the other side in this matter. 
If you could commence preparing that, I would appreciate it.   I am enclosing a copy of the nearly signed Agreement, by which the Trustees agree to take possession of the percentage interest of the property.  
Thank you. Sincerely, Edward J. White"

 1986.04.25   (Edward White to Henry Mackall, copy to Jean O'Connell)
"Enclosed is the draft by Ms. Barnes of the Final Accounting.   I have taken the liberty of correcting a typographical error on the distributions to reflect 53.9006% vice 3.9006%.   I would appreciate it if you would forward this to Mr. O'Connell and clarify with him his intention to qualify on May 1st.    If he does not agree or requests further delaying tactics, I feel that I have no other recourse in serving my client than to seek to have him removed as a Trustee.  This matter is costing Mrs. O'Connell dearly with the delay.

Correspondence

1985.06.25   (Henry Mackall to Anthony O’Connell)
" I received your letter with the enclosures regarding your father' s estate and the trust referred to in the Will.  From looking at the documents you sent me, it appears that the trust created by the Will was devised a 92.2% interest in each of the real estate interests included in the estate.  Because the estate interest was only 50%, this would mean that the interest of the trust in each parcel of real estate is 46.1%.  Your mother has apparently paid all of the real estate taxes from the date of your father's death and the trust would owe her 46.1% of those taxes.  It seems to me that a final account would be very simple, merely reflecting the ownership percentages as distributions.  No formal deed would be required . Obviously if either you or your mother wanted to sell, the other would have to agree.  I notice from your letter to Joan Barnes you state that the trust should contain all of one or the other of the two properties.  Is there some reason why you do not wish to have the 46.1% interest in each of the properties in the trust?   
As soon as you advise me on this and on the response you receive from Ms. Barnes, I will have my associate, Amy Blanchard, contact your mother to see if we can’t get this resolves
Sincerely, Henry C. Mackall”

1985.07.08   (Henry Mackall to Anthony O’Connell)
"I have spoken with Ms Barnes who agreed with my suggestion that a final account be filed by your mother reflecting the trust's ownership of an undivided percentage interest in the real estate. Funds advanced by your mother to pay the trust's share of the real estate taxes would be treated as a liability of the trust to be repaid when the realty is sold.  She advised me that the percentages were not exactly as earlier calculated because of a slight difference in some jointly owned property.  She is sending me a new computation which I will forward when it arrives.  
In the letter your mother received from Mr. McCandlish, mention was made of your being able to qualify without a co-trustee if you appointed an agent on whom process might be served. I assume he was talking about Section 26-59 of our Code which deals with non-resident fiduciaries.  I don’t believe it is applicable to your situation.  Because of this and because of it would make your mother more comfortable, I discussed with Ms. Barnes the idea of her qualifying as a co-trustee with you. She has agreed. You’re your mother is the sole beneficiary of the trust during her lifetime and is willing to forego any income from the trust there seems no need to sell the land.  It has proven to be a good investment and your mother seems willing and able to continue to pay the real estate taxes as they accrue.  The Will contains a waiver of bond for the trustee so that expense can be avoided.  After an initial account there will only be a requirement to file one every three years showing no activity.  When land is sold this situation will change but, at least for now, there will be little expense.   I think we can plan for you to come east at a time when Ms. Barnes is available so the two of you can qualify as trustees.  The estate can be closed with little effort.
Sincerely, Henry C. Mackall”

1985.07.11   (Henry Mackall to Joanne Barnes)
" "Following my phone conversation with you, I reported to Mr. O'Connell that you and I had agreed on a procedure which could be followed in connection with closing the Estate of his father and I recommended that procedure to him.  He has just advised me by phone that the procedure is not acceptable.  As a result of our phone conversation I am no longer representing him.
Sincerely, Henry C. Mackall”

1985.07.11   (Henry Mackall to Anthony O’Connell)
"For services rendered from June 20, 1985 through July 11, 1985 in accordance with the attached computer printout;   . . . . . . . . . . . . . . . . . .   $ 360.00 "

1985.08.20   (Henry Mackall to Anthony O’Connell)
"I am sorry you did not understand the distribution from your mother's estate to the trust.   According to the Will, your mother was to receive from all sources (jointly owned property and other assets passing outside the Will and from her share of the probate estate) 50%.  In order to determine exactly how much goes into the trust, you must look at the estate tax return.  The original computations you furnished me (Ms. Barnes told me there were minor changes in these figures) showed a net probate estate of $82,809.00.  This included the two half interests in real estate valued at $43,681.00 and $37,500.00, respectfully or a total of $ 78,181.00.  The share of your mother was one-half of the net estate (gross Estate for tax purposes less debts and expenses) which amounted to $148,614.00.  Her interest was therefore $74,307.00.  She received $63,580.00 outside the Will.  She therefore was entitled to an additional $10,727.00 from the probate estate leaving the trust with the remaining $72,082.00.   
Taking a $72,082.00 interest in the real estate worth $78,181.00 equates to a .921988718% interest in that real estate. Since the real estate in question was only a half-interest, this equates to a .460994% interest in the whole.  In my opinion that is what the trust should now have.  In my letter to you of June 25th I rounded off the interests to show the trust with 46.1% interest in each of the two parcels of real estate.  As you will see, the trust does not get all but only 92.2% of the two remaining assets of your father’s estate.
I am sorry I did not make this clear in my earlier correspondence.  Please let me know if I can be of further help.
Sincerely, Henry C. Mackall”

1985.10.07   (Henry Mackall to Anthony O’Connell)
"Thank you for your letter of September 23 regarding your father's Estate.  I will be happy to try to help you.  I have serious problems with the limitations you wish to place on me.  I believe a great deal can be accomplished by free and open discussion between counsel and I cannot see any harm in throwing out possible alternatives during such a discussion.  I cannot hang up each time a new subject comes up in order to get instructions.  I never commit a client to any particular course without his approval but I might well discuss actions which later turn out to be unacceptable to the client.
Your plan sounds fine but you cannot insist on it and be certain it will be adopted.  There is no problem with funding the trusts as suggested.  It seems the only practical way. 
I do not know anything about Mr. Higham.  I think your mother’s wishes must be considered since she is a beneficiary.  I know the Court will consider her desires before it makes an appointment.
I see no reason why the intended final account has to be reviewed and approved before it is filed.  If it is wrong, objections can be made before the Commissioner of Accounts.  If we reach an agreement I assume the account will be drawn as we discussed earlier and that we’ll have some input.  If you want me to help further please let me know.
Sincerely, Henry C. Mackall”

The following two letters are what did me in:

This is the first time that I was told that there was an "Agreement".

1985.11.04    (Henry Mackall to Anthony O’Connell).
"I have today received executed agreement signed by your mother which would, I believe, carry out the desires you expressed to me in our last conversation.  If this agreement meets with your approval please make arrangements to come here and qualify with Mr. Higham as Trustees of the Testamentary Trust.  When you do so this agreement can be executed and will become binding.  I have both the original and copy signed by your mother in my file and enclose herewith a copy.  If you have any problem with this please let me know.
Sincerely, Henry C. Mackall”

This is the first time that I was told that there was an "Agreement".

Mr. Mackall's following letter of November 25, 1985, made me frustrated. (After we qualify, then will correct "Agreement", (and then there will be a "bond problem" that will prevent us from qualifying), and then on 1986 there will be a still unidentified something that then can do final account (Not to mentionfinal account

1985.11.25   (Henry Mackall to Anthony O’Connell)
"I have discussed the percentage of the real estate which is owned by the Testamentary Trust under your father's Will with Mr. White and Ms. Barnes.  The correct figure is 46.0994%.  (1) When you and Mr. Higham qualify as Trustees, a final account can be filled and (2) the agreement with the revised percentages can be signed.  I have made changes in ink and you can initial those changes to reflect the correct percentages.
(3) As I have discussed with Mr. White and Ms. Barnes, the advances which your mother has made and will make to pay the taxes will be treated as loans to the Testamentary Trust which do not bear interest and which will be payable only when the properties are sold.  Ms. Barnes advises me that through 1984 the taxes paid for the benefit of the Trust on the percentage ownership which the Trust has have amounted to #13,841.24.  I have not checked her figures but understand that they all came from the annual accounting filed on behalf of the Estate. 
I am glad that this matter has been concluded successfully and look forward to seeing you when you come to qualify
Sincerely, Henry C. Mackall”

1985.12.04   (Henry Mackall to Anthony O’Connell)
"I received the message you left for me last Friday afternoon which was repeated in your letter of *November 29.  Mrs. O'Connell is the life time beneficiary of the Trust under which you will be acting.  She is therefore entitled as a matter of right, to use the property which constitutes the corpus of the Trust.  I have a great deal of concern over taking a position that she must pay for the right to use the Trust property.  This is particularly true since she is a co-tenant in her own right, owning 53.810%.  As such, she has a right to occupy the property irrespective of the Trust provisions.  
As things have been proposed, it would not be necessary for you and Mr. Higham to be in Court at the same time as Mrs. O’Connell.  In the event no agreement is reached, there will inevitably come a time when a confrontation in Court must take place.  I continue to believe this can be avoided.    
If we are unable to reach an agreement, I fear that Mrs. O’Connell will contest your request to act as Trustee.  The questions will then have to be determined by the Court.  I don’t know the nature of your disagreement with her but it seems clear that there is a direct conflict between you and her.  I frankly doubt that the Court would permit you to serve as Trustee in view of that conflict.  I believe your failure to agree that sums advanced by Mrs. O’Connell to pay real estate taxes due on trust property could lead to the kind of confrontation we have been trying to avoid.  From the figures you gave me with respect to the value of the real estate, the small amount of tax payments would not seem to be very important.  I think you ought to reconsider your position with respect to these taxes.  Please review this question and let me know your decision.   P.S.  Enclosed is a redrafted agreement for your review
Sincerely, Henry C. Mackall
P.S.  Enclosed is a redrafted agreement for your review. HCM”

*I did not keep a copy of this letter but after x months of delay and the surprise obstacle of the "Agreement", which I thought would be the last problem, I received news of two more the surprize obstacles: in Henry Mackall letter of x.x.x, I lost my temper (still think that this was my mother's idea)did say that

1986.02.13   (Henry Mackall to Anthony O’Connell)
"Enclosed is copy of agreement dated January 28, 1986 which has been signed by you and your mother.  All that remains is for you and Mr. Higham to qualify as Trustees and for Mr. Higham to sign the agreement.  I recommend that we do this at your earliest convenience.  
Please let me know when you will be coming to Fairfax for this qualification.  I will be out of town on the 6th and 7th of March and hope you will be able to schedule it some other time.  I can have someone else from my office go with you if we run into a conflict but I would prefer to do it myself.
Sincerely, Henry C. Mackall”

1986.02.24   (Henry Mackall to Anthony O’Connell)
"I have your letter of February 20, 1986 in which you state that other things must be done before you will come to Fairfax and qualify.  I am afraid we are having some difficulty in our communications.  There are no "new real estate titles " involved.  The property devised by the Will passed authomatically to the Trustees, subject to their qualification.  The only thing required to vest title in the Trustees is for the Trustees to come here and qualify. 
The final estate filings cannot take place until after the Trustees have qualified and the real property has vested in them.  
The next step in this procedure is for you and Mr. Higham to qualify.  When that takes place the whole thing can be finalized.
Sincerely, Henry C. Mackall”

1986.03.12   (Henry Mackall to Anthony O’Connell)
"I have your letter of March 3, 1986.  In Virginia there is no such thing as revising real estate deeds under the situation involving your father's estate.  I thought I had adequately covered this in one of my earlier letters.  The trustees, however, have not qualified and therefore cannot be said to own the property.  As soon as they qualify the property will retroactively be deemed to be owned by the Trustees. I wish you would come East so that you and Mr. Higham can appear in the Clerk's Office and qualify as Trustees.  Only then will a receipt signed by the two of you showing the property to have been received be effective.  At that point a final account can be filed by the Executrix who has actually had nothing to do with the real estate except by reason of the failure of the Trustees to qualify.  I fail to see that there is anything needed other than for you and Mr. Higham to qualify as Trustees and for Mr. Higham to sign the agreement. 
I am going to forward Mr. Higham a copy of this letter with the request that he sign the agreement and return it to me.  As soon as you both qualify I will deliver it to Mr. White.  Since the matter has been worked out in such a satisfactory way I think you should do what you must to conclude it.
Sincerely, Henry C. Mackall”

Wait outside

An interesting thing happened when the nominated trustees meet Henry Mackall in Fairfax, Virginia, on May 1, 1986, to qualify as co-trustees.

As we were walking to the Court House I thought it strange that Henry Mackall would not look at me as I was telling him how H. A. Higham was the quarterback and I was an end for the Lee High School [local] football team; and here we are 26 years later being co-trustees together. I looked at Henry Mackall several times to make sure I was seeing right, and he would not look back, he would not look me in the eye.

Then Henry Mackall told us to wait outside and he went in the Court House by himself. I thought, why was I required to come from Saint Louis, Missouri, to wait outside the Court House? When Henry Mackall returned he said that there was a bond problem that had to be corrected before we could qualify.

My best guess of what happened on May 1, 1986, after H. A. Higham and I meet Henry Mackall in Fairfax, and we all walked to the Court for H. A. Higham and I to qualify as co-trustees, is that Henry Mackal, after meeting me, and I'm guessing, recognized that I was not the sort of person Joanne Barnes and Edward White had led him to believe, I was, and that he decided to not go through with the original "Lawyer-fix" plan. Please remember that this is shrouded in secrecy so I have no choice but to guess.

I thought it strange that Henry Mackall would not look at me as I was telling him how H. A. Higham was the quarterback and I was an end for the Lee High School Football team; and here we are 26 years later being co-trustees together. I looked at Henry Mackall and he would not look back.

Then Henry Mackall told us to wait outside and he went in the Court by himself. Why I should come from Saint Louis to wait outside the Court? I think the original plan was that we (Or earlier Joann Barnes and I?) were to go with him and all be surprised by whatever the "lawyer-fix" created. When Henry Mackall returned he told us that there was a bond problem that had to be corrected before we could qualify.

Was the origibnal plan that Joanne Barnes and I would go to the Court to qualify and the "bond problem" would allow her to qualify but not Anthony O'Connell? Did Henry Mackall decide that the co-trustees's relationship of twenty-six years be too much to divide; too much to go through the plan? Or that H. A. Higham, who has done so much developement that streets are named after him. would notice things that the average person would not, when something was not right?

Henry Mackall's letter to Edward White on May 8, 1986, has a different tone with it's "I think it [petition] certainly should be entered and trust that I will not have any difficulty getting it done.", and H. A. Higham and I are sent a copy. This is the first time that I had gotten a copy of Henry Mackall's letter to Edward White; the first time I saw Edward White's address. That secrecy is broken.

***

1986.05.08   (Henry Mackall to Anthony O’Connell and H.A. Higham)
"Enclosed please find a copy of my letter to Mr. White together with copy of a proposed Petition and Order in connection with the bond problem we ran into when you attempted to qualify.  I have discussed this with Mr. White and expect no problem getting it entered.  If either of you have any objections to anything in either of these documents please let me know.
Sincerely, Henry C. Mackall”
(Enclosure to above)
1986.05.08   (Henry Mackall to Edward White)
"Enclosed is a copy of the Petition I plan to file in connection with the bond matter I discussed with you on the phone.  Also enclosed is the original and a copy of these documents please give me a call.  If you agree with what I am proposing please have Mrs. O'Connell sign the proposed Order and send it back to me with your endorsement.  I think it certainly should be entered and trust that I will not have any difficulty getting it done. 
Thank you for your assistance.
Sincerely, Henry C. Mackall”