Doris Duke Trust
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JAMES B. DUKE

TO

NANALINE H. DUKE AND OTHERS, TRUSTEES

 

INDENTURE AND DEED OF TRUST OF PERSONALTY

ESTABLISHING

THE DORIS DUKE TRUST

DECEMBER 11, 1924.

 

WITH ADDITIONS THERETO BY WILL OF

JAMES B. DUKE

PROBATED ON OCTOBER 23rd, 1925.

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        THIS INDENTURE made in quadruplicate this 11th day of December, 1924, by and between JAMES B. DUKE, residing at Duke Farms, near Somerville, in the County of Somerset and State of New Jersey, United States of America, party of the first part, and NANALINE H. DUKE, of Somerville, N. J., GEORGE G. ALLEN, of Hartsdale, N. Y., WILLIAM R. PERKINS, of Montclair, N. J., WILLIAM B. BELL, of New York City, N. Y., ANTHONY J. DREXEL BIDDLE, JR., of New York City, N. Y., WALTER C. PARKER, of New Rochelle, N. Y., ALEX H. SANDS, JR., of Montclair, N. J., WILLIAM S. LEE, of Charlotte, N. C., CHARLES I. BURKHOLDER, of Charlotte, N. C., NORMAN A. COCKE, of Charlotte, N. C., EDWARD C. MARSHALL, of Charlotte, N. C. and BENNETTE E. GEER, of Greenville, S. C. as trustees and their successors as trustees under and in accordance with the terms of this Indenture, parties of the second part,

WITNESSETH:

        That for and in consideration of the sum of One Dollar cash in hand paid and the love and affection which the said party of the first part has for his daughter Doris Duke and the other beneficiaries hereinafter designated and in order to effectuate the trusts hereby created, the first party has bargained, sold, assigned, transferred and delivered, and by these presents does bargain, sell, assign, transfer and deliver, the following property, to wit:

2,000 Shares of the Stock of Duke Power Company, a corporation organised and existing under the laws of the State of New Jersey.

$35,000. Cash.

unto said trustees and their successors as trustees hereunder, in trust, to be held, used, managed, administered and disposed of, as well as all additions and accretions thereto and all incomes, revenues and profits thereof and therefrom, for the purposes and in the manner and upon the terms herein expressly provided, and not otherwise, namely:

FIRST.

        The trust established by this Indenture is hereby denominated The Doris Duke Trust, and it shall exist and continue so long as, but in no event longer than, any one or more of the following persons, namely:

DORIS DUKE, daughter of the party of the first part;

MARY DUKE BIDDLE, wife of Anthony J. Drexel Biddle, Jr. and daughter of Benjamin N. Duke, the brother of the party of the first part;

MARY DUKE BIDDLE and ANTHONY J. DREXEL BIDDLE III, the two children of said Mary Duke Biddle;

ANGIER BUCHANAN DUKE, JR. and ANTHONY NEWTON DUKE, the two children of Angier Buchanan Duke, deceased, who was the son of said Benjamin N. Duke;

MARY LYON STAGG, widow of James E. Stagg and daughter of Mary E. Duke Lyon, who was a sister of the party of the first part;

ELIZABETH STAGG HACKNEY, wife of John Mallory Hackney, and MARY WASHINGTON NICHOLSON, wife of Sterling B. Johnston Nicholson, the two children of said Mary Lyon Stagg;

JOHN MALLORY HACKNEY, JR. and JAMES STAGG HACKNEY, the two children of said Elizabeth Stagg Hackney;

STERLING JOHNSTON NICHOLSON, JR. and MARY WASHINGTON NICHOLSON, the two children of said Mary Washington Nicholson;

CLARA ELIZABETH LYON McCLAMROCH, wife of Roland Prince McClamroch, GEORGE LEONIDAS LYON, JR. and MARY DUKE LYON, the three children of George Leonidas Lyon, deceased, who was a son of said Mary E. Duke Lyon;

E. BUCHANAN LYON, MARION NOELL LYON, LAURA ELIZABETH LYON and WASHINGTON DUKE LYON, the four children of E. Buchanan Lyon, deceased, who was the son of said Mary E. Duke Lyon;

BAXTER LAURENCE DUKE, MABEL DUKE GOODALL, wife of H. R. Goodall, and PEARL DUKE BACHMANN, wife of Nathan L. Bachmann, the three children of Brodie Leonidas Duke, deceased, who was a half-brother of the party of the first part;

MABEL DUKE GOODALL, child of said Mabel Duke Goodall.

MARTHA DULANEY BACHMANN, child of said Pearl Duke Bachmann;

who may be living at the time of the execution of this Indenture, shall remain alive, and for and during the period of twenty-one years next and immediately ensuing and succeeding the death of the last survivor of the aforesaid persons, unless sooner terminated by other provisions hereinafter contained.

SECOND.

        Each trustee herein named, as well as each trustee selected hereunder, shall be and remain a trustee so long as this trust may exist and such trustee shall live and continue mentally and physically capable of performing the duties of a trustee hereunder, subject to resignation and to removal as hereinafter stated. The number of trustees within two years from the date of this Indenture shall, by vote of the trustees at any meeting, be increased to and thereafter remain at fifteen, except that during the time that said Doris Duke is one of the trustees of the trust which has this day been established by the party of the first part by Indenture bearing even date herewith and thereby denominated The Duke Endowment and the number of trustees of said last mentioned trust shall be fifteen, the B. S number of trustees under this trust shall be and remain at fourteen.

        Subject to the terms of this Indenture, the trustees may adopt and change at any time rules and regulations which shall govern in the management and administration of the trust and trust property.

        Meetings of the trustees shall be held at least ten times in each calendar year at such time and place and upon such notice as the rules and regulations may provide. Other meetings of the trustees may be held upon the call in writing of the chairman or a vice-chairman or any three trustees given in accordance with the rules and regulations, at such place and time and for such purposes as may be specified in the call. A majority of the then trustees shall constitute a quorum at any such meeting, but less than a majority may adjourn any such meeting from time to time and from place to place until a quorum shall be present. The affirmative vote of the majority of a quorum shall be necessary and sufficient at any such meeting to authorize or ratify any action by the trustees hereunder, except as herein otherwise expressly provided. Written records, setting forth all action taken at said meetings and the voting thereon, shall be kept in a permanent minute book of the trustees, and shall be signed by each trustee present at the meeting.

        The trustees shall select annually from their number a chairman and two vice-chairmen, and a secretary and a treasurer, who need not be trustees. Such officers shall hold office for one year and thereafter until their respective successors shall be selected. The compensation of the secretary and treasurer shall be that fixed by the trustees.

        The trustees shall establish an office, which may be changed from time to time, which shall be known as the principal office of this trust, and at it shall be kept the books and papers other than securities relating to this trust.

        By the affirmative vote of a majority of the then trustees any officer, and by the affirmative vote of threefourths of the then trustees any trustee, may be removed for any cause whatever at any meeting of the trustees called for the purpose in accordance with the rules and regulations.

        Vacancies occurring among the trustees from any cause whatever (for which purpose an increase in the number of trustees shall be deemed to cause vacancies to the extent of such increase in number of trustees) may be filled by the remaining trustees at any meeting of the trustees, and must be so filled within six months after the vacancy occurs; Provided that no person shall remain or become a trustee hereunder who shall not be or at once become a trustee under the trust which has been this day created by the party of the first part by Indenture bearing even date herewith and which denominates said trust The Duke Endowment.

        Each trustee shall be paid at the end of each calendar year one equal fifteenth part of three per cent of the incomes, revenues and profits received by the trustees upon the trust properties and estate during such year, provided that if any trustee by reason of death, resignation, or any other cause, shall have served during only a part of such year, there shall be paid to such trustee, if alive, or if such trustee be dead then to the personal representatives of such trustee, such a part of said one-fifteenth as the time during which said trustee served during such year shall bear to the whole of such year, such payment to be in full for all services as trustee hereunder and f or all expenses of the trustees, In the event that any trustee shall serve in any additional capacity (other than as chairman or vice-chairman) the trustees may add to the B. foregoing compensation such additional compensation as the trustees may think such trustee should receive by reason of serving in such additional capacity.

        No act done by any one or more of the trustees shall be valid or binding unless it shall have been authorized or until it shall be ratified as required by this Indenture.

        The trustees are urged to make a special effort to secure persons of character and ability, not only as trustees, but as officials and employees.

THIRD.

        For the purpose of managing and administering the trust, and the properties and funds in the trust, hereby created, said trustees shall have and may exercise the following powers, namely:

        To manage and administer in all respects the trust hereby created and the properties and funds held and arising hereunder, in accordance with the terms hereof, obtaining and securing for such purpose such assistants, office space, force, equipment and supplies, and any other aid and facilities, upon such terms, as the trustees may deem necessary from time to time.

        To hold, use, manage, administer and dispose of each and every of the properties which at any time, and from time to time, may be held in this trust, and to collect and receive the incomes, revenues and profits arising therefrom and accruing thereto, provided that said trustees shall not have power (except by the affirmative vote of each trustee and then only in response to the most urgent and extraordinary necessity) to dispose of the whole or any part of the share capital (or rights of subscription thereto) of Duke Power Company, a New Jersey corporation, or of any subsidiary thereof, except by way of distribution of the funds and properties of this trust as and when the same shall cease and terminate.

        To invest any funds from time to time arising or accruing through the receipt and collection of incomes, revenues and profits, sale of properties, or otherwise, provided the said trustees may not lend the whole or any part of such funds except to said Duke Power Company, nor may said trustees invest the whole or any part of such funds in any property of any kind except in securities of said Duke Power Company, or of a subsidiary thereof, or in bonds validly issued by the United States of America, or by a State thereof, or by a district, county, town or city, which has a population in excess of fifty thousand people according to the then last Federal census, which is located in the United States of America, which has not since 1900 defaulted in the payment of any principal or interest upon or with respect to any of its obligations, and the bonded indebtedness of which does not exceed ten per cent of its assessed values. Provided further that whenever the said trustees shall desire to invest any such funds the same shall be either lent to said Duke Power Company, or invested in the securities of said Duke Power Company or of a subsidiary thereof, if and to the extent that such a loan or such securities are available upon terms and conditions satisfactory to said trustees.

        To utilize each year in accordance with the terms of this Indenture the incomes, revenues and profits arising and accruing from the trust estate for such year in defraying the cost, expenses and charges incurred in the management and administration of this trust and its funds and properties, and in applying and distributing the net amount of such incomes, revenues and profits thereafter remaining to and for the objects and purposes of this trust.

        Said trustees shall have and may exercise, subject to the provisions of this Indenture, any and all other powers which are necessary or desirable in order to manage and administer the trust and the properties and funds thereof and carry out and perform in all respects the terms of this Indenture according to the true intent thereof.

        Any assignment, transfer, bill of sale, deed, conveyance, receipt, check, draft, note, or any other document or paper whatever, executed by or on behalf of the trustees, shall be sufficiently executed when signed by the person or persons authorized so to do by a resolution of the trustees duly adopted at any meeting and in accordance with the terms of such resolution.

FOURTH.

        The trustees hereunder each year shall pay, apply and distribute two-thirds of the net amount of the incomes, revenues and profits received from the funds and properties in this trust during such year up to and until the time when final payment and distribution is directed to be made of the one-third of the funds and properties of this trust under the terms of the "FIFTH" division of this Indenture and the whole of the net amount of the incomes, revenues and profits, if any, received from the funds and properties in this trust during such year from and after such time (1) to the said Doris Duke so long as she shall live, and (2) after the death of said Doris Duke per capita, in equal portions, to and among the lineal descendant or descendants of the said Doris Duke who may be living at the time of the making by the trustees of each particular payment and distribution thereof under this division of this Indenture so long as this trust shall continue and a lineal descendant of said Doris Duke shall be living, but in no event longer than the last day of the said period of twenty-one years mentioned and described in the "FIRST" division of this Indenture. Upon the said last day of said period of twenty-one years mentioned and described in the "FIRST" division of this Indenture, or upon it so happening that at any time theretofore neither said Doris Duke nor any lineal descendant of said Doris Duke shall be living, whichever of said contingencies shall first happen, this trust shall cease and terminate as to, and the trustees shall thereupon forthwith pay and distribute, two-thirds in value at that time of all the funds and properties then held in this trust in the event that the final payment and distribution of the one-third of the funds and properties of this trust shall not have been made prior to said time under the "FIFTH" division of this Indenture, or the whole of the funds and properties at said time held in this trust in the event that final payment and distribution prior to said time shall have been made of the one-third of the funds and properties of this trust under the terms of the "FIFTH" division of this Indenture (1) per capita, in equal portions, to and among the lineal descendant or descendants of the said Doris Duke then living, if any such there shall be; or (2), if there be no such lineal descendant then living, then into the trust which has been created and established by the party of the first part by Indenture bearing even date herewith wherein the trust thereby created is denominated The Duke Endowment, provided that no payment or distribution under this division of this Indenture shall be made of any accumulation of incomes, revenues and profits which may have been made by virtue of the "SIXTH" division of this Indenture and/or of any incomes, revenues and profits of any such accumulation.

FIFTH.

        The trustees hereunder each year shall pay, apply and distribute one-third of the net amount of the incomes, revenues and profits received from the funds and properties in this trust during such year up to and until the time when final payment and distribution is directed to be made of the two-thirds of the funds and properties of this trust under the terms of the "FOURTH" division of this Indenture, and the whole of the net amount of the incomes, revenues and profits, if any, received from the funds and properties in this trust during such year from and after such time, per capita, in equal portions, to and among each of the following persons, namely: said MARY DUKE BIDDLE, the wife of Anthony J. Drexel Biddle, Jr.; said MARY DUKE BIDDLE and ANTHONY J. DREXEL BIDDLE III, the children of said Mary Duke Biddle; said ANGIER BUCHANAN DUKE, JR. and ANTHONY NEWTON DUKE, children of Angier Buchanan Duke, deceased; said MARY LYON STAGG, the widow of James E. Stagg; said ELIZABETH STAGG HACKNEY, the wife of John Mallory Hackney and MARY WASHINGTON NICHOLSON, the wife of Sterling Johnston Nicholson, children of the said Mary Lyon Stagg; said JOHN MALLORY HACKNEY, JR. and JAMES STAGG HACKNEY, children of the said Elizabeth Stagg Hackney; said STERLING JOHNSTON NICHOLSON, JR. and MARY WASHINGTON NICHOLSON, children of the said Mary Washington Nicholson; said CLARA ELIZABETH LYON McCLAMROCH, the wife of Roland Prince McClamroch, GEORGE LEONIDAS LYON, JR. and MARY DUKE LYON, children of George Leonidas Lyon, deceased; said E. BUCHANAN LYON, MARION NOELL LYON, LAURA ELIZABETH LYON and WASHINGTON DUKE LYON, children of E. Buchanan Lyon, deceased; said BAXTER LAWRENCE DUKE, MABEL DUKE GOODALL, the wife of H.R. Goodall, and PEARL DUKE BACHMANN, the wife of Nathan L. Bachmann, children of Brodie Leonidas Duke, deceased; said MABEL DUKE GOODALL, the child of the said Mabel Duke Goodall; and said MARTHA DULANEY BACHMANN, the child of said Pearl Duke Bachmann, and each and every of the lineal descendants of each and every of said persons, which persons and/or descendants may be living at the time of the making by the trustees of each particular payment and distribution thereof under this division of this Indenture so long as this trust shall continue and any one of said persons or a lineal descendant of any one of said persons shall be living, but in no event longer than the last day of the said period of twenty-one years mentioned and described in the "FIRST" division of this Indenture. Upon the said last day of said period of twenty-one years mentioned and described in the "FIRST" division of this Indenture, or upon it so happening that at any time theretofore neither any one of said persons nor any lineal descendant of any one of said persons shall be living, whichever of said contingencies shall first happen, this trust shall cease and terminate as to, and the trustees shall thereupon forthwith pay and distribute, one-third in value at that time of all the funds and properties then held in this trust in the event that the final payment and distribution of the two-thirds of the funds and properties of this trust shall not have been made prior to said time under the "FOURTH" division of this Indenture or the whole of the funds and properties at said time held in this trust in the event that final payment and distribution prior to said time shall have been made of the two-thirds of the funds and properties of this trust under the terms of the "FOURTH" division of this Indenture (1) per capita, in equal portions, to and among the lineal descendant or descendants then living of each and every of said persons, if any such there shall be, or (2), if there be no such lineal descendant then living, then into the trust which has been created and established by the party of the first part by Indenture bearing even date herewith wherein the trust thereby created is denominated The Duke Endowment, provided that no payment or distribution under this division of this Indenture shall be made of any accumulation of incomes, revenues and profits which may have been made by virtue of the "SIXTH" division of this Indenture and/or of any incomes, revenues and profits of any such accumulation.

SIXTH.

        The trustees hereunder at any time and from time to time with respect to any beneficiary hereunder so long as such beneficiary shall be under twenty-one years of age (but in no event subsequent to the last day of the period of twenty-one years mentioned and described in the "FIRST" division of this Indenture), in the uncontrolled discretion of said trustees, may withhold and accumulate for such beneficiary the whole or any part of the incomes, revenues and profits of this trust which, except for such withholding and accumulation, would be paid and distributed to such beneficiary, but with respect to said Doris Duke and her lineal descendants the party of the first part requests especially, but does not require, that said trustees do so withhold and accumulate hereunder beyond such amounts as the trustees hereof may think should be paid to the said Doris Duke and/or to her lineal descendants in order to provide liberally for their current needs, Each such accumulation, as well as the incomes, revenues and profits thereof, shall be separately kept and handled by said trustees as respects accounting, investment of funds, and otherwise, and the whole of such accumulations, incomes, revenues and profits shall be fully and finally paid, applied and distributed by said trustees as follows, namely: (1) to the beneficiary from whom it was so withheld upon such beneficiary attaining the age of twentyone years, or upon the said last day of said period of twenty-one years mentioned and described in the "FIRST" division of this Indenture, whichever of said events shall first occur, if such beneficiary shall be then living; or (2), if such beneficiary shall not be then living, then upon the death of such beneficiary (a) in all respects in accordance with the laws and statutes of the State of New Jersey at the time of the death of such beneficiary to and among those persons who by said laws and statutes would inherit real estate then owned by such beneficiary and located in said State, had such beneficiary died intestate and a resident of said State, or (b), if there shall not be living at the time of the death of such beneficiary any person to whom payment and distribution may be made pursuant to subdivision (a) hereof, then into the trust which has been created and established by the party of the first part by Indenture bearing even date herewith wherein the trust thereby created is denominated The Duke Endowment; provided that the trustees hereunder, in their uncontrolled discretion, at any time and from time to time before the happening of any of said events, may pay and apply the whole or any part of any such accumulation, as well as of the incomes, revenues and profits thereof, to and for the support, education and maintenance of the beneficiary from whom the same may have been withheld, in which event said full and final payment and distribution under the foregoing provisions of this division of this Indenture shall be only of what may remain thereof at the time of the making of such full and final payment and distribution, This trust shall cease and terminate as respects each of said accumulations as well as the incomes, revenues and profits thereof, (1) as and when such payment and distribution thereof shall be made under the terms of this division, or (2), upon the last day of the said period of twenty-one years mentioned and described in the "FIRST" division of this Indenture, whichever of said events shall first occur.

SEVENTH.

        Subject to the other provisions of this Indenture, said trustees shall pay, apply, divide and distribute such incomes, revenues and profits at such time or times as may in their discretion be found best suited to the due administration and management of this trust.

        In the event that any stock dividend or rights shall be declared upon any of the stock held under this instrument, the said stock and rights distributed pursuant thereto shall for all purposes be treated and deemed to be principal even though the said stock dividend and/or rights shall represent earnings.

        No trustee hereby appointed and no trustee selected in pursuance of any powers herein contained shall be required to give any bond or other security for the performance of his, her or its duties as such trustee, nor shall any trustee be required to reserve any part of the income of any investment or security for the purpose of creating a sinking fund to retire or absorb the premium in the case of bonds or any other securities whatever taken over, purchased or acquired by the trustees at a premium.

        The term "subsidiary" as herein used shall mean any company at least fifty-one per cent of the voting share capital of which is owned by said Duke Power Company.

        The party of the first part hereby expressly reserves the right to add to the corpus of the trust hereby established by way of supplemental indenture and/or last will and testament and/or in any other manner whatever with like effect as if such additions had been originally incorporated herein.

        Said trustees are authorized and directed to pay all taxes, levies and assessments which may be validly imposed upon the trust estate or any part thereof or in respect thereto or which may be incurred in the exercise of any of the powers conferred by this Indenture, as well as the costs and expenses of administering this trust.

        Any payment or distribution made hereunder may be made by said trustees wholly or partly in money or property, and the judgment and decision of said trustees in this respect, as well as with respect to the kind, quantity and value of the property to be utilized for such purpose, and the amount and value, singly and in the aggregate, of the funds and properties of this trust at any time for such purpose shall be final and conclusive on all parties interested, said trustees being hereby constituted the sole arbiters of any and all questions and matters which may arise in and about the making of any such payment or distribution,

        Gifts, grants, payments, assignments, transfers and deliveries to or for any minor hereunder may be made by the trustees only to the proper and duly appointed guardian of such minor.

EIGHTH.

        This Indenture is executed by a resident of the State of New Jersey in said State, is intended to be made, administered and given effect under and in accordance with the present existing laws and statutes of said State, notwithstanding it may be administered and the beneficiaries thereof may be located in whole or in part in other states, and the validity and construction thereof shall be determined and governed in all respects by such laws and statutes.

        IN WITNESS WHEREOF, the said JAMES B. DUKE, at his residence at Duke Farms in the State of New Jersey, has subscribed his name and affixed his seal to this Indenture, consisting with this page, the preceding pages and the following page of sixteen pages, each page of which, except this page, he has identified by signing his name on the margin thereof, all on the day and year first above written,

(Sgd) James B. Duke (L.S.)

WITNESSES:
(Sgd) Clarence E. Case
(Sgd) Forrest Hyde
(Sgd) Clarence E. Mapes


STATE OF NEW JERSEY :
                                    : ss
COUNTY OF SOMERSET:

        BE IT REMEMBERED, that on this 11th day of December, 1924, before me, a Notary Public of New Jersey, personally appeared JAMES B. DUKE, who, I am satisfied, is the grantor named in the within Indenture and Deed of Trust dated December 11th, 1924, and I having first made known to him the contents thereof, he did acknowledge that he signed, sealed and delivered the same as his voluntary act and deed, for the uses and purposes therein expressed,

(Sgd) Wm. R. Sutphen
Notary Public of N. J.

        WE, the undersigned, being the persons designated in the within and foregoing Indenture as the trustees of the trust thereby created, do hereby accept said trust and undertake to act as trustees of the same as in said Indenture set forth.

(Sgd) Nanaline H. Duke
(Sgd) George G. Allen
(Sgd) William R. Perkins
(Sgd) William B. Bell
(Sgd) Anthony J. Drexel Biddle, Jr.
(Sgd) Walter C. Parker
(Sgd) Alex. H. Sands, Jr.
(Sgd) William S. Lee
(Sgd) Charles I. Burkholder
(Sgd) Norman A. Cocke
(Sgd) Edward C. Marshall
(Sgd) Bennette E. Geer

ADDITION BY WILL OF JAMES B. DUKE.

        The will of James B. Duke, deceased (which is dated December 11, 1924, and was probated in common form before the Surrogate of Somerset County, New Jersey, October 23rd, 1925) by Item V bequeathed to The Doris Duke Trust "all the shares of stock which I may own at my death of the Duke Power Company, a New Jersey corporation, and/or of any corporation fifty-one per cent of the voting share capital of which is owned by the said Duke Power Company at that time, if my said daughter Doris Duke or a lineal descendant of my said daughter be living at the time of my death. - - - The shares of stock to which said trust may become entitled by virtue of this item of my will shall be added to and become a part of the corpus of said trust."

        As Doris Duke was living at the time of Mr. Duke's death, this provision takes effect and by it there passes to The Doris Duke Trust

125,904 shares of the stock of Duke Power Co.
2 shares of the Common Stock of Southern Power Co.
2 shares of the Common Stock of Great Falls Power Co.

which Mr. Duke owned at his death.

I, JEAN BELINSKY, Assistant Treasurer of The Doris Duke Trust, a Trust Established by James B. Duke by Indenture dated December 11, 1924, do hereby certify that I have compared the annexed copy of the Indenture with the original thereof, and that the same is a true and correct copy of the original.

Assistant Treasurer

Subscribed and sworn to before me this 12 day of Feb., 1981