Oral arg. – COA – Aug. 4, 2016

At 1:30 the Court of Appeals will hear the case of Napoleon L. Cassibry, III as Trustee of the N.L. Cassibry, Jr. Family Trust, Trustee of the Cassibry Children Irrevocable Trust, Trustee of the June C. Cassibry Irrevocable Trust, Power of Attorney for June C. Cassibry, and Managing Partner of the Cassibry Brothers Partnership; Napoleon Cassibry, III, Individually,  and John C. Cassibry, Individually v. Graham W. Cassibry

This is a dispute between two brothers. Graham Cassibry sued Napoleon for breach of fiduciary duty in Napoleon’s role as trustee for the three family trusts.  He also asked for an accounting, Napoleon’s  removal as Trustee, and the creation of a constructive trust.

Napoleon Cassibry, Jr., was the President of Cleveland State Bank.  When he died in 1998, most of his estate passed  to his wife June.  But the elder Cassibry also  created the N.L. Cassibry, Jr. Family Trust.   June was named the  the primary beneficiary of the Family Trust and  Napoleon Cassibry, III, a contingent beneficiary and the Trustee. His two younger two sons, John and Graham, were the other contingent beneficiaries.

In 1999, the family set up the Children’s Trust.

In 2000, June Cassibry formed a third trust, the June C. Cassibry Irrevocable Trust (“June’s Trust”).

The trial court  found that Napoleon’s withdrawals and loans to himself from the Trusts constituted breaches of the duty of loyalty and found against him in the amount of  $144,865.86 in damages and $46,402.00 in attorneys’ fees and costs.

Napoleon raises three issues:

1.When a grantor of a trust names one of the beneficiaries as a trustee, and the trust further allows the trustee to make unsecured, interest-free loans to any beneficiary and absolves the trustee from any liability for resulting losses, is it a breach of the duty of loyalty under Miss. Code Ann. § 91-8-802(b)(1) for the trustee to make loans to himself as beneficiary, particularly when those loans do not exceed the share he would be due upon distribution?

2. When a trustee withdraws funds from a trust with the primary beneficiary’s approval, is it a breach of the duty of loyalty?

3. Is a Chancellor’s award of attorneys’ fees reversible error when there is no evidence supporting those fees in the record?

Napoleon’s brief

Graham’s brief

Napoleon’s reply 

Watch the argument here.

The notice of appeal was filed in 2013.  This case took a long time to get here.


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