Opinion
No. 99-CA-2475
December 6, 2000. Rehearing Denied January 12, 2001.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 76-8782, DIVISION "H-12" HONORABLE MICHAEL G. BAGNERIS, JUDGE.
JONES, J., DISSENTS, MARTIN E. LANDRIEU, GORDON, ARATA, MCCOLLAM, DUPLANTIS EAGAN, L.L.P., NEW ORLEANS, LA 70170, ATTORNEY FOR APPELLANT.
ANDREW A. BRAUN, MICHAEL A. BERENSON, RAYMOND P. WARD, SESSIONS FISHMAN, NEW ORLEANS, LA 70170-3500, ATTORNEYS FOR APPELLANTS.
GEOFFREY J. ORR, CAMPBELL, McCRANIE, SISTRUNK, ANZELMO HARDY, METAIRIE, LA 70002, ATTORNEY FOR APPELLEE.
WAYNE M. BABOVICH, BRADLEY J. CHAUVIN, TILTON R. HUNTER, JR., THE LAW OFFICES OF BABOVICH, SPEDALE CHAUVIN, L.L.P. METAIRIE, LA 70005, ATTORNEYS FOR APPELLEES
(Court composed of Chief Judge Robert J. Klees, Judge Joan Bernard Armstrong, Judge Charles R. Jones, Judge Miriam G. Waltzer and Judge Michael E. Kirby).
Several beneficiaries of various trusts appeal a judgment appointing a trustee, and refusing to terminate the trusts.
STATEMENT OF FACTS AND HISTORY OF THE CASE
Will Gibbens died testate in 1976. His will established numerous trusts for his two daughters and grandchildren. His will also provided for successive trustees, his wife, his son-in-law, his daughters along with the Whitney National Bank and finally the Whitney alone. Specifically, his will stated,
I hereby appoint Florieda Batson Gibbens, my wife, trustee for each of the aforesaid trusts, and in the event my wife predeceases me or refuses or be unwilling or unable to act at the time of my death or later, then I appoint as the successor trustee to my wife Joseph Y. Whealdon, my son-in-law, as sole successor trustee for each of the aforesaid trusts, and, in the event both my wife and son-in-law be dead or refuse or be unwilling or unable to act, then I appoint as the successor trustee to Joseph Y. Whealdon, my son-in-law, my daughters, Jean Gibbens Whealdon and Patricia Gibbens Whealdon, or the survivor, along with the Whitney National Bank of New Orleans, New Orleans, Louisiana, as co-trustees or successive trustees, and in the event both of my said daughters be dead or refuse or be unable or unwilling to act, then I appoint as the sole trustee for each of the aforesaid trusts the Whitney National Bank of New Orleans, New Orleans, Louisiana.
Both Gibbens' wife and his son-in-law are deceased, and the Whitney has declined to serve as trustee. Moreover, it is unclear from the record if either Jean Whealdon or Patricia Caffery, the settlor's daughters, have qualified as trustees of the numerous trusts. However, several beneficiaries (the Whealdons) asked the court to appoint a third co-trustee to replace the Whitney. The trial court appointed Salvador Anzelmo as co-trustee for the Whealdon trusts. No one appealed that order. Anzelmo asked the court to appoint him co-trustee to replace the Whitney for the Caffery trusts, and the Cafferys asked the trial court to terminate the trusts. After hearing, the trial court granted Anzelmo's motion, appointing him co-trustee for all of the trusts to replace the Whitney and denied the Cafferys' motion, refusing to terminate the trusts. The Cafferys appeal this judgment.
ANZELMO'S APPOINTMENT AS TRUSTEE
On appeal, the Cafferys argue that the court-appointed trustee, the replacement for the Whitney, can not fulfill his fiduciary duties to the individual beneficiaries. They do not attack his qualifications as a trustee. Since several of the trusts' beneficiaries are involved in litigation, the Cafferys contend that no individual can "administer the trust solely in the interest of the beneficiary." LSA-R.S. 9:2082. For this reason, the Cafferys argue that Anzelmo should be removed as co-trustee of the various Caffery trusts.
The record contains little evidence about the nature of the litigation between the various beneficiaries. Apparently, the Whealdons are unhappy with Hugh Caffery's administration of a voting trust created by Florieda Gibbens, wife of Will Gibbens Jr. Conceding that a conflict exists between the various beneficiaries, we are unable to conclude that such a conflict necessitates removal of an otherwise qualified trustee. The record does not convince this court that Anzelmo is unable or unwilling to fulfill his fiduciary duties to the individual beneficiaries. In considering removal of a trustee for a potential conflict of interest, the Supreme Court stated, "it must be shown that he has mismanaged the estate or breached one or more of his required duties." In re Mary Belsome Welsh Qualified Trust, 97-1042 (La. 9/26/97); 701 So.2d 970, quoting Succession of Dunham, 408 So.2d 888, 889 (La. 1981). Although conflict and hostility exist between the beneficiaries of the various trusts, we are not convinced that these struggles are attributable to the appointed trustee. The record does not convince us that Anzelmo is disqualified from serving as trustee of both the Caffery and the Whealdon trusts.
Voting trusts, as opposed to testamentary trusts, are governed by LSA-R.S.12:78.
TERMINATION OF THE TRUSTS
The Cafferys also seek termination of the trusts, pursuant to LSA-R.S. 9:2026. This statute provides, in part,
The proper court may order the termination or modification of a trust, in whole or in part, if:
(1) The continuance of the trust unchanged would defeat or substantially impair the purposes of the trust.
(2) Except as otherwise provided by the terms of the trust, a trustee has determined that the market value of a trust is less than twenty-five thousand dollars and that, in relation to the costs of administration of the trust, the continuance of the trusts unchanged would defeat or substantially impair the purposes of the trust.
However, the trial court found the request to terminate the trust was "premature." After reviewing the entire record, we find no reason to reverse the decision of the trial court.
CONCLUSION
For the above reasons, we affirm the judgment of the trial court.
AFFIRMED
I respectfully dissent in part and concur in part.
Based upon the record, it is apparent that the trial court conducted thorough proceedings and carefully considered the issues, law and evidence in this closely-contested case.
Although the trial court selected a well-qualified and well-respected person to act as trustee, it appears that, under the circumstances present in this case, it would be difficult for one person to serve as co-trustee of both the appellants' trusts and the appellees' trusts. Accordingly, I dissent with respect to the appointment of a single person as the third co-trustee of both families' trusts.
The Cafferies do not argue that Mr. Anzelmo is, in himself, unsuitable to act as co-trustee. Rather, they argue that no person can both serve as the third tie-breaking co-trustee of the Whealdons' trusts and serve in the same position with respect to the Cafferies' trusts because the Whealdons' interests and the Cafferies' interests are adverse.
A trustee is a fiduciary. La.R.S. 9:1781. A trustee is under a duty to the trust beneficiary to care for the trust property. La.R.S. 9:2091. The trustee is required to administer the trust solely in the interest of the beneficiary. La.R.S. 9:2082.
In the present case, the interests of the Whealdons and the Cafferies, the beneficiaries of the trusts, are adverse. In particular, they are in litigation over the control of Valentine Sugar, Inc. The trust property of the trusts is stock in Valentine. It would be difficult for one person to serve as the tie-breaking third co-trustee for the Whealdons' trusts, with the fiduciary duty to act in the best interest of the Whealdons, and simultaneously serve in the same position with respect to the Cafferies trusts with the fiduciary duty to act in the best interest of the Cafferies'. Fiduciary duty requires unswerving loyalty in accordance with law to the beneficiary. As the interests of the Whealdons and the Cafferies are adverse, it would be difficult to serve both families' interest at the same time. While I see no problem with Mr. Anzelmo continuing to serve as co-trustee of the Whealdons' trust, it appears that some other person should be appointed to serve as the third co-trustee of the Cafferies' trusts.
I concur in the portion of the majority decision that the trial court was correct in holding that the Caffries' request to terminate the trusts is premature.