Can we connect the dots

Fix (bigger)

Shut out Anthony O'Connell using "lawyer fix"
Connecting the dots

What ever the "Lawyer-fix" created remains today and remains a secret. My best guess is that it is a document signed by Jean O'Connell that would block me from qualifying as co-trustee; but she did not know that it would block me from qualifying as co-trustee because she had been led to believe that it was a usual and customary document that had to be signed by the executor about non-resident co-trustees such as me. Please remember that this is shrouded in secrecy so I have no choice but to guess.

Ambiguity

I base my guess on the continued ambiguity between (1) I could not qualify and (2) I needed a resident co-trustee:

1986.01.28 (From the "Agreement" dated January 28, 1986, in part)
"WHEREAS, under the Will of the late HAROLD A. O'CONNELL, which Will has been admitted to probate among the records of the Circuit Court of Fairfax County, certain property was left to ANTHONY M. O'CONNELL, Trustee, upon the terms and conditions of the trust set forth in the aforesaid Will;
WHEREAS, ANTHONY M. O'CONNELL is not a resident of the Commonwealth of Virginia and HERBERT ANDERSON HIGHAM has qualified as Co-Trustee in this case;

1988.04.21 (Deed for homeplace, in part)
"Whereas by Deed of Partition recorded in Deed Book 4026 at Page 454, the property was reconveyed to Harold A. O'Connell as to an undivided one-half interest and to Jean M. O'Connell, as to an undivided one-half interest, whereas, Harold A. O'Connell died testate May 26, 1975, and by his Last Will and Testament recorded in Will Book 201 at Page 96, devised his interest to his executor Anthony M. O'Connell, Trustee; whereas Anthony M. O'Connell, Trustee, could not qualify and Herbert A. Higham, Trustee, was appointed to act in his place and stead."

2007.06.14 10:21am (Lisa Overton to Bill Lynch, Anthony O’Connell, Steve Blizzard, and Lisa Overton, in part)
"Having said that however, when I look at the documents you attach, you did in fact sign the deed as a Trustee, the qualification simply required that a Co-trustee also sign since you were not a resident of Virginia. /// Perhaps they should have been more clear and said that Mr. Higham was appointed WITH you as co-trustee and not in your place. There is no requirement for a Trustee under a land trust to be a Virginia resident; therefore it is a non issue in this case.”

I do not understand how:
"/// whereas Anthony M. O'Connell, Trustee, could not qualify and Herbert A. Higham, Trustee, was appointed to act in his place and stead."
could mean anything but:
" /// whereas Anthony M. O'Connell, Trustee, could not qualify and Herbert A. Higham, Trustee, was appointed to act in his place and stead."

Surprise; could not qualify as Trustee, 1986

1986.04.25 (Edward White to Henry Mackall, in part)
"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."

1986.01.86 (Henry Mackall to Anthony O'Connell) (Item on statement for services,)
"5/1/86 HCM To Courthouse - to qualify the trustees in Court"

1986.05.08 (Henry Mackall to Anthony O’Connell and H.A. Higham, in part)
"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."

Surprise; could not qualify as Trustee, 1988

1988.04.21 (Deed for homeplace, in part)
"Whereas by Deed of Partition recorded in Deed Book 4026 at Page 454, the property was reconveyed to Harold A. O'Connell as to an undivided one-half interest and to Jean M. O'Connell, as to an undivided one-half interest, whereas, Harold A. O'Connell died testate May 26, 1975, and by his Last Will and Testament recorded in Will Book 201 at Page 96, devised his interest to his executor Anthony M. O'Connell, Trustee; whereas Anthony M. O'Connell, Trustee, could not qualify and Herbert A. Higham, Trustee, was appointed to act in his place and stead."

Would I qualify as Trustee during a settlement on a sale of Accotink?

One of the grantors in the 1992 deed for Accotink is "ANTHONY MINER O’CONNELL, Trustee Under the Last Will and Testament of Harold A. O’Connell". I do not understand why I cannot get a position from those in control on whether they recognize that I did, or whether I did not, qualify as co-trustee u/w of H. A. O'Connell. I do not understand why whatever the "Lawyer fix" created remains a secrect. It's been twenty-five years now. This is one of the reasons the sale of Accotink has been on hold.

Turning point

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, recognized that I was not the sort of person Joanne Barnes and Edward White had led him to believe, 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; a here we are 26 years later being co-trustees together thing. 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 problem that had to be corrected before we could qualify.

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.

Was the original plan that I would never be allowed to qualify? The deed of April 21, 1988, says, in part: "/// whereas Anthony M. O'Connell, Trustee, could not qualify and Herbert A. Higham, Trustee, was appointed to act in his place and stead." This is the last position from the powers that be.

Reference

(1)
1974.04.11 (Will of H. A. O'Connell, page 10, recorded in Will book 201 page 105, in part)
"(b) I appoint my said wife, JEAN M. O'CONNELL, to serve as sole Executrix hereof. In the event that my sais wife fails to become or ceases to be Executrix hereof for any reason, I appoint ANTHONY M. O'CONNELL as the substitute Executor hereof.
(c) I nominate and appoint as Trustee of any trust herein ANTHONY M. O'CONNELL.
(d) So far as I may lawfully do so, I direct that no bond or other security shall be required of any Executor or Trustee serving hereunder for the faithful performance of duties in any jurisdiction."

(2)
Jean O'Connell's memos on big yellow envelope three:

"Bond fee- Lawyer fix so
bond pd when sold.
nominal amt now."

"Clerk 691-2224
691-4193- give
fiduciary no. 21840
(Procedure
Come in - surety bond-)
(Va resident with)
Patty Moat ot"

(3)
1986.04.25   (Edward White to Henry Mackall)
(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 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.
Sincerely"

(4)
1986.01.86 (Henry Mackall to Anthony O'Connell) (Item on statement for services,)
"5/1/86 HCM To Courthouse - to qualify the trustees in Court"

(5)
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”

(6)
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”

(7)
1986.05.21 (Edward White to Jean O'Connell) (No copy to another)
"Enclosed is an Order for your endorsement allowing the Trustees to serve without a cash bond. This is needed to save everyone the cost of the bond.
Please endorse it and return it to me.
Sincerely"

(8)
1986.06.23 (Henry Mackall to Anthony O’Connell and H. A. Higham)
"You have officially qualified as Trustees under the Last Will and Testament of Harold A. O'Connell. You have given bond in a penalty of $842,000.00 without surety. Enclosed are copies of the following documents:
1. Certification of Qualification issued June 20, 1986.
2. Order entered June 11, 1986 by Judge Middleton.
3. Petition filed on behalf of Mr. O’Connell requesting authority for the Trustees to qualify without surety.
4. Agreement dated January 28, 1985 between the Trustees and Jean O’Connell.
5. Eighteen page notice to Fiduciaries together with Inventory and Accounting forms and fee schedule. The sole asset initially is the undivided interest in the two parcels of real estate. This should be reflected on the Inventory filed in Mr. McCandlish’s Office. Mrs. O’Connell will now be able to file her final accounting as Executrix to notify me when this account is filed. Statement for services is also enclosed.
Sincerely, Henry C. Mackall”

Enclosure 2: (Certificate):
COMMONWEALTH OF VIRGINIA
Circuit Court of Fairfax County
CERTIFICATE OF QUALIFICATION
State of Virginia
County of Fairfax, to-wit: Fiduciary No. 21840
I, WARREN E . BARRY, Clerk of the Circuit Court of the County of Fairfax, Virginia, the same being a Court of Probate and of Record and having a seal, do hereby certify that it appears of record in my office pursuant to law that ANTHONY M. O'CONNELL & HERBERT ANDERSON HIGHAM have been duly appointed TRUSTEES under the Last Will and Testament of : HAROLD A. O'CONNELL and that they have qualified as such by taking the oath presctibed by law and by entering into and acknowledging a bond in the penalty of EIGHT HUNDRED FORTY TWO. THOUSAND
Dollars, wlthout surety.
I further certify that the said appointment and qualification is still in full force and effect and has not been revoked.
IN TESTIMONY WHEREOF I have hereunto
set my hand, and affixed the seal of said Court
hereto, at Fairfax, Virginia this 20th day of June, 1986
WARREN E. BARRY., CLERK
By Patricia L(?) Moat
Deputy Clerk

Enclosure 4: (The following version is the version at Book 381 pages 1577 -1578)
"THIS AGREEMENT, made this 28 day Jan, 1986 by and between JEAN M. O'CONNELL and ANTHONY M. O'CONNELL and HERBERT ANDERSON HIGHAM, Trustees, provides:
WHEREAS, under the Will of the late HAROLD A. O'CONNELL, which Will has been admitted to probate among the records of the Circuit Court of Fairfax County, certain property was left to ANTHONY M. O'CONNELL, Trustee,
upon the terms and conditions of the trust set forth in the aforesaid Will;
WHEREAS, ANTHONY M. O'CONNELL is not a resident of the Commonwealth of Virginia and HERBERT ANDERSON HIGHAM has qualified as Co-Trustee in this case;
WHEREAS, the corpus of the Trust, as presently constituted, consists of a 46.0994 percent ownership of two parcels of real estate located in Fairfax County, Virginia, the first being known as 6541 Franconia Road, and is the residence of JEAN M. O'CONNELL, the second being fifteen (15) acres of land located in Accotink Station, identified as Map Reference number 090-4-01-0017;
WHEREAS, it is the desire of the parties to fund the Trust as set forth in the Will and to provide security for JEAN M. O'CONNELL, and stability for the Trust;
IT IS HEREBY AGREED that in re-turn for mutual promises as consideration for this agreement, the parties agree to the following:
1. The Co-Trustees, by their signatures hereupon, acknowledge receipt of the 46.0994 percent ownership of the two parcels referred to above.
2. JEAN M. O'CONNELL hereby agrees that she is the owner of the remaining 53.9006 percentage interest of the two parcels referred to above.
3. JEAN M. O'CONNELL hereby agrees that she will at all times pay the real estate taxes and other costs of maintaining these two parcels of property.
4. The Trustees hereby agree that during the life of JEAN M. O'CONNELL, they will not sell or attempt to sell by partition or otherwise, either of the two tracts of property without the written permission of JEAN M. O'CONNELL.
5. The Trustees agree that if either property is sold during the life of JEAN M.. O'CONNELL she will be reimbursed from the sale proceeds the principal of all real estate taxes on that property paid by her which are attributable to the percentage ownership of the Trust.
In all other respects, the parties hereto agree that they are bound by the terms of the Wil1 and Trust established therein.
JEAN M. O'CONNELL (seal)
ANTHONY M. O 'CONNELL (seal)
HERBERT ANDERSON HIGHAM (seal)"

(9)
1988.04.21 (Deed for homeplace, in part)
"AND BEING the same property conveyed to Harold A. O'Connell and Jean M. O'Connell, his wife, as joint tenants with the common law right of survivorship by deed recorded in Deed Book A-13 at Page 37. Whereas by Deed of Partition recorded in Deed Book 4026 at Page 454, the property was reconveyed to Harold A. O'Connell as to an undivided one-half interest and to Jean M. O'Connell, as to an undivided one-half interest, whereas, Harold A. O'Connell died testate May 26, 1975, and by his Last Will and Testament recorded in Will Book 201 at Page 96, devised his interest to his executor Anthony M. O'Connell, Trustee; whereas Anthony M. O'Connell, Trustee, could not qualify and Herbert A. Higham, Trustee, was appointed to act in his place and stead."

(10)
1992.10.16 (Deed for Accotink)
"THIS DEED IN TRUST UNDER LAND TRUST AGREEMENT, made this 16th day of October, 1992 by and between JEAN MARY O’CONNELL NADER and HOWARD NADER, husband and wife, SHEILA ANN O' CONNELL and PIERRE SHEVENELL, husband and wife, ANTHONY MINER O’CONNELL, divorced and not remarried, and ANTHONY MINER O’CONNELL, Trustee Under the Last Will and Testament of Harold A. O’Connell (collectively, “Grantors"); and ANTHONY MINER O’CONNELL, Trustee, of Fairfax County, Virginia (hereinafter sometimes collectively referred to as "Trustees" or "Grantees"):
W I T N E S S E T H:
That Grantors for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, do hereby grant and convey to the Grantees as trustees the hereinafter described parcel of real estate, situate and being in Fairfax County, Virginia, and being more particularly described on the attached and incorporated EXHIBIT A- ("Property").
TO HAVE AND TO HOLD the Property in fee simple, with the appurtenances thereunto belonging, upon the trusts and for the uses and purposes set forth herein and in that certain Land Trust Agreement dated as of 16th day of October 1992, which is incorporated herein by this reference.
Full power and authority is hereby granted to the Trustee and their successors and assigns to protect and conserve the property; to sell, contract to sell and grant options to purchase the Property and any right, title or interest therein on any terms; to exchange the Property or any part thereof for any other real or personal property upon any terms; to convey the Property by deed or other conveyance to any grantee, with or without consideration; to mortgage, pledge or otherwise encumber the Property or any part there of; to lease, contract to lease, grant options to lease and renew, extend, amend and otherwise modify leases on the Property or any part thereof from time to time, for any period of time, for and rental and upon any other terms and conditions; and to release, convey or assign any other right, title or interest whatsoever in the Property or any part there of.
No party dealing with the Trustee in relation to the Property in any manner whatsoever, and (without limiting the foregoing) no party to whom the Property or any part there of or any interest there in shall be conveyed, contracted to be sold , leased or mortgaged by the Trustee, shall be obliged (a) to see to the application of any purchase money, rent or money borrowed or otherwise advanced on the Property, (b) to see that the terms of this trust have been complied with, (c) to inquire into the authority, necessity of expediency of any act of any Trustee, or (d) be privileged to inquire in to any of the terms of the Trust Agreement. Every deed, mortgage, 1ease or other instrument executed by the Trustee in relation to the Property shall be conclusive evidence in favor of every person claiming and right, title or interest thereunder; (a) that at the time of the delivery thereof this trust was in full force and effect, (b) that such instrument was executed in accordance with the trusts, terms and conditions hereof and of the Trust Agreement and is binding upon all beneficiaries thereunder, (c) that the Trustee was duly authorized and empowered t o execute and deliver every such instrument, and (d) if a conveyance has been made t o a successor or successors in trust, that such successor or successors have been properly appointed and are fully vested with all the title, estate, rights, powers, duties and obligations of his, its or their predecessor in trust.
The Trustee shall have no individual liability or obligation whatsoever arising from his ownership, as trustee, of the legal title to said property, or with respect to any act done or contract entered into or indebtedness incurred by him in dealing with said property, or in otherwise acting as such trustee, except only so far as said Trust Property and any trust funds in the actual possession of the Trustee shall be applicable to the payment and discharge there of.
The interest of every beneficiary hereunder and under the Trust Agreement and of all persons claiming under any of them shall be only in the earnings, avails and proceeds a rising from the rental, sale or other disposition of the Property. Such interest is hereby declared t o be personal property, and no beneficiary hereunder shall have any right , title or interest, legal or equitable, in or to the Property, as ' such, but only in the earnings, avails and proceeds there of as provided in the Trust Agreement.
This deed is governed by and is to be read and construed with reference t o Section 55-17.1, Code of Virginia (1950 as amended) and now in force.
Except as here in after noted, the Grantors covenant that they have the right to convey the Property to the Trustee, that Grantors have done no act to encumber the Property, that the Trustees shall have quiet possession of the Property, free from all encumbrances, and that Grantors will execute such further assurances of the Property as may be requisite.
Howard Nader and Pierre Shevenell join in this Deed in Trust Under Land Trust Agreement for the sole purpose of consenting to the conveyance of the Property, and hereby forever convey, release and waive any marital rights or right to claim an elective share in such Property as part of their spouses' augmented estate pursuant to Code of Virginia, Section 64.1-13, et seq., as amended, and give no covenant or warranty of title to the property hereby conveyed."

(11)
2007.06.13 7.00am (Anthony O'Connell to Lisa Overton and Steve Blizzard)
"Would you please answer these questions?
(1) The attached copy of Ms. Overton's letter to my mother dated April 22, 1988, shows she handled the settlement for my 1988 sale. I was surprised to be told the day before settlement that I had to sign a deed that said I could not qualify as Trustee. The attached six documents show I qualified as Trustee in 1986. Where does it say in the Court records that I could not qualify as Trustee? I am concerned that something similar may happen again.
(2) Does Stewart Title find the following legal description in the real estate tax records for parcel 0904 01 0017 correct: "ACCOTINK STATION WB201 109 DB8307-1446 DB8845-1444 DB8845 -1449"? Please read the documents. Please give me a yes or a no.
(3) Why does Stewart Title allow someone not from Stewart Title to respond to questions for Stewart Title?
Anthony O'Connell , Trustee for parcel 0904 01 0017"

(12)
2007.06.14 10:21am (Lisa Overton to Bill Lynch, Anthony O’Connell, Steve Blizzard, and Lisa Overton) omit second page?
"Yes, that is me from 1988 -can't believe how old you are making me feel, and I can honestly tell you that I do not remember that specific 1988 case.
Having said that however, when I look at the documents you attach, you did in fact sign the deed as a Trustee, the qualification simply required that a
Co-trustee also sign since you were not a resident of Virginia. I do not recall which firm we were using in 1988 to prepare our deeds, we have used quite a few different firms in the past, but it looks as though in the derivation of title paragraph that you underline they simply tried to consolidate the statement of facts. Perhaps they should have been more clear and said that Mr. Higham was appointed WITH you as co-trustee and not in your place.
There is no requirement for a Trustee under a land trust to be a Virginia resident; therefore it is a non issue in this case.”