Residential Management Services Trust, Robert Hogue, Trustee - Page 14




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          part, that “A Successor-Trustee may be appointed by the current                
          Trustee or Trustees, a court of competent jurisdiction, or by                  
          consensus with the and [sic] Beneficiaries if the First Trustee                
          resigns with 30 days notice.”  (Emphasis added.)  However, Robert              
          Hogue has failed to establish that the altered trust instrument                
          supersedes the 1994 trust instrument in which paragraph Eighth                 
          provides, in pertinent part, that “A Successor-Trustee may be                  
          appointed by a court of competent jurisdiction or by consensus                 
          with the Trust Managers and Beneficiaries if the First Trustee                 
          resigns with 30 days notice”.  As it pertains to the question of               
          whether Robert Hogue is Residential Management’s trustee, we                   
          conclude that the 1994 trust instrument controls our disposition               
          of this case.                                                                  
               According to the 1994 trust instrument, Residential                       
          Management was purportedly created on May 24, 1994, and Douglas                
          J. Carpa was purportedly appointed “trustee”.  Douglas J. Carpa                
          then resigned and purportedly appointed Robert Hogue successor                 
          trustee on July 15, 1997.  However, the 1994 trust instrument did              
          not grant Douglas J. Carpa the authority to appoint a successor                
          trustee.  As a result, Robert Hogue would have this Court rely,                
          not on the 1994 trust instrument, but on the altered trust                     
          instrument to find that Douglas J. Carpa had unilateral authority              
          to appoint Robert Hogue successor trustee.                                     
               In support of his contention, Robert Hogue testified that he              






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