                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 92-CA-01307-SCT
BANK OF MISSISSIPPI
v.
SOUTHERN MEMORIAL PARK, INC.

DATE OF JUDGMENT:                                  11/16/92
TRIAL JUDGE:                                       HON. JASON H. FLOYD, JR.
COURT FROM WHICH APPEALED:                         HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                           DAVID S. RAINES
                                                   FRED MANNINO
ATTORNEYS FOR APPELLEE:                            NICHOLAS VAN WISER
                                                   KENNETH C. JOHNSTON
NATURE OF THE CASE:                                CIVIL - WILLS, TRUSTS AND ESTATES
DISPOSITION:                                       REVERSED AND REMANDED - 6/13/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    7/8/96




      EN BANC.


      PRATHER, PRESIDING JUSTICE, FOR THE COURT:


                                             INTRODUCTION

¶1. The Bank of Mississippi appeals the November 16, 1992, decision of the Harrison County Chancery
Court denying the authorization of attorneys' fees incurred while adjudicating its status as trustee in litigation
instigated by Southern Memorial Park, Inc. The sole issue on appeal is whether the trial court erred in failing
to authorize the payment of attorneys' fees in the aforementioned proceedings.

                                      STATEMENT OF THE CASE

¶2. Ernest H. Brown, acting as president for Southern Memorial Park, Inc. (hereinafter the "Park") filed on
February 1, 1991, a motion seeking to transfer trust funds from First Mississippi National Bank of
Hattiesburg to Paul E. Roberts, Jr., C.P.A., in Biloxi. The Harrison County Chancery Court granted the
motion, but the Bank of Mississippi (hereinafter the "Bank"), the successor in interest of First National
following a merger, refused to comply because of alleged code violations. After communication between the
parties, a petition was filed seeking transfer of funds to an entity called Planned Trusts, Inc., which had not
yet been validly incorporated.
¶3. The Bank filed an answer to the petition and counterclaimed for the appointment of a new trustee. In its
answer, the Bank delineated eleven issues for consideration by the chancery court in which the statutes'
interplay with the trust agreement raised issues regarding the proper means of effectuating a legal
substitution. In addition, the Bank requested $2,000.00 as compensation for its services as trustee and $3,
500.00 in attorneys' fees, but it later increased this amount to $8,339.82 following the performance of
additional legal services.

¶4. On October 26, 1992, the chancery court issued its opinion and judgment, recognizing the substitution
of Planned Trusts as trustee, mandating the transfer of all funds less the Bank's trustee's fees incurred during
final accounting, and assessing all court costs to the Bank. The Bank timely appealed from the judgment.

                                     STATEMENT OF THE FACTS

¶5. On March 29, 1983, Great American Properties - Mississippi, Inc., a Georgia corporation, executed a
perpetual care trust pursuant to the requirements of Miss. Code Ann. § 41-43-31 to -53 (1993) for the
management of the Park, which consisted of cemetery property located in Biloxi, Mississippi. The Park is
incorporated in the State of Mississippi and engages in the business of "providing lots or other interment
space therein for the remains of human bodies, and of entering into contracts with retail consumers
whereunder personal property and/or services related to a funeral service or burial of the dead are
deliverable at a future or unspecified date." Another declaration of trust was made for the purpose of
assuring payment of merchandise purchased and paid for by owners of interment rights in the cemetery.

¶6. Great American created the trusts, with the First Mississippi National Bank in Hattiesburg (hereinafter
"First National") designated as trustee. First National merged with the Bank of Mississippi (the "Bank"),
which assumed the duties of trustee for the Park. As trustor, Great American subsequently sold the
property on May 19, 1983 to Ernest H. Brown, who currently owns the Park in an individual capacity. An
amendment was subsequently made to the original trust for a cemetery merchandise trust fund.

¶7. Thereafter, the Park and Brown began efforts to replace the Bank as trustee, executing a perpetual care
trust with Paul E. Roberts, C.P.A., as trustee for the Park. On February 22, 1991, the Park filed a motion
with the Harrison County Chancery Court, seeking recognition of the trustee transfer. On that very same
day, and without notice to the Bank, the chancery court entered an order requiring all trust funds belonging
to the Park to be transferred from the Bank to Roberts and designating Roberts as the new trustee.

¶8. Upon advice of counsel, the Bank refused to comply with the order on the basis that various provisions
of Miss. Code Ann. § 41-43-31 to -53 and § 75-63-3 to -23 were not followed. The Bank's attorneys
presented a letter to the Park on April 4, 1991, suggesting certain procedures to follow in substitution of the
trustee, including one procedure which dictated that a corporation, not an individual, had to be designated
as trustee. The letter also requested verification of the Notice of Intent to Transfer and Notice of Intent to
Receive fund assets, income tax returns, direction as to liquidation of certain fund investments that could not
be transferred, and indemnification and hold harmless instruments. Some of these requests were made
pursuant to statutory requirements and others were merely precautionary steps taken by the Bank.

¶9. Following this correspondence, the Park did in fact attempt to comply with some of the
recommendations made by the Bank's attorney. On July 1, 1991, for example, the Bank received a copy of
a notice of intent that Planned Trusts, Inc. was sought as a substitute trustee, even though said entity was
not validly incorporated until two weeks later.
¶10. At the time of trial, the principal of the cemetery merchandise trust was $57,835.04 with estimated
annual interest of $2,313.00, and the principal of the perpetual care trust was $184,918.69 with estimated
annual interest of $7,396.00. In its second and final petition with the chancery court, the Park sought, inter
alia, a review of the charges and expenses which could be assessed against the trust corpus and those
expenses which were incurred by the Bank in its own interest, and therefore, not chargeable against the
trust. The Bank, in turn, sought declaration on its duties as trustee in order to appropriately relinquish trustee
status, particularly with regards to the state statutory requirements.

¶11. After a final determination by the chancery court authorizing the trustee substitution, the Bank appealed
because attorneys' fees were not granted. The law firm of Page, Mannino & Peresich (hereinafter the
"Firm"), employed by the Bank, asserts that it spent a total of 82.6 hours at $100.00 per hour in this matter.
The Firm further asserts that all the aforementioned fees were incurred after June 28, 1991, the cut-off date
established by the chancery court for the trusts' liability of attorneys' fees. As a result, no allowance of
attorneys' fees was made for the proceedings related to the substitution of the trustee.

                                         ANALYSIS OF THE LAW

¶12. Neither trust agreement addressed the reimbursement of attorneys' fees to the trustee. However,
various statutes imply that, when related to the administration of the trust, attorneys' fees are reasonable
expenses entitling the trustee to reimbursement. First, Miss. Code Ann. § 75-63-7 specifically allows for the
income of trust funds to be used for reasonable expenses as stated herein:

      To insure the adequacy of the trust funds of their intended purpose, the net income therefrom shall
      remain therein and be reinvested and compounded except the income of the trust fund may be used to
      defer reasonable expenses of the trustee in connection with the administration of the trust funds.

Miss. Code Ann. § 75-63-7 (1991).

¶13. Another code section pertaining to perpetual care trusts requires that the principal remain intact and the
funds be used only for cemetery upkeep. Miss. Code Ann. § 41-43-37(1), (5) (1993). These statutes are
open to interpretation, and the chancery court decided that the Bank was not entitled to the expense of
court costs nor attorneys' fees associated with the trustee substitution after June 28, 1991, when the notice
of intent to transfer and the notice of intent to receive funds were received by the clerk's office.

¶14. A reading of the Mississippi Uniform Trustees Powers Law indicates that the Bank should be entitled
to a reasonable amount of attorneys' fees for work performed in connection with the trustee substitution.
The following are related excerpts:

      (1) From time of creation of the trust until final distribution of the assets of the trust, a trustee has the
      power to perform, without court authorization, every act which a prudent man would perform for the
      purposes of the trust, including but not limited to the powers specified in subsection (3) of this section,
      and those powers, rights and remedies set forth in Section 91-9-9, Mississippi Code of 1972.

      *** *** ***

      (3) A trustee has the power, subject to subsections (1) and (2):
      (r) To borrow money to be repaid from trust assets or otherwise; to advance money for the
      protection of the trust and for all expenses, losses and liability sustained in the administration of the
      trust or because of the holding or ownership of any trust assets, for which advances with any interest
      the trustee has a lien on the trust assets as against the beneficiary.

      (x) To employ persons, including attorneys, auditors, investment advisors or agents, even if they
      are associated with the trustee, to advise or assist the trustee in the performance of his administrative
      duties; to act without independent investigation upon their recommendations; and instead of acting
      personally, to employ one or more agents to perform any act of administration, whether discretionary
      or not.

      (y) To prosecute or defend actions, claims or proceedings for the protection of trust assets
      and of the trustee in the performance of his duties;

Miss. Code Ann. § 91-9-107 (1), (3) (Revised 1994)(Emphasis added).

¶15. Clearly, this statute provides for attorneys' fees associated with a trustee's administrative duties akin to
the Bank's efforts. A trustee has all the powers conferred by statute unless limited by the trust agreement.
Miss. Code Ann. § 91-9-105 (1994). The agreements did not specifically limit the Bank's authority to seek
legal representation concerning trust matters. As stated in the Joint Stipulation of Facts, Brown and the Park
attempted to substitute a trustee without following certain formalities. To retain an attorney to advise them
of the proper method of substituting a trustee was not only a natural conclusion for the Bank, but a
necessity.

¶16. The trial court's ruling disallowing legal fees after June 28, 1991, does not comport with a fair reading
of the applicable statutes. One arguable basis for denying attorneys' fees would be if it were determined that
the Bank was no longer a trustee as of June 28, 1991, when Ernest Brown exercised his contractual right to
substitute trustees by filing notice of his intention to transfer and receive. As the Bank points out, however,
this notice alone does not complete the substitution process, given that a bond is required to be posted,
unless the court waives the posting of said bond. Miss. Code Ann. § 41-43-37 and § 75-63-17 (1972).
The trial court did not waive the posting of said bond, however, directing the Bank to transfer the amounts
in the two trusts to Planned Trusts, Inc., the substitute trustee, only upon receiving a bond in the amount
equal to the assets to be transferred from the Bank.

¶17. It was within the responsibility of the Bank as trustee to undertake reasonable steps to see that the
interest of the beneficiaries were protected until such point as a valid substitution of trustees had taken
place. The actions of the trial court in not waiving the bond requirement validly led the Bank to conclude,
under Mississippi law, that it still had the duties of trustee until such bond was provided or requirement
thereof was waived. Given that no bond had been filed and that the successor trustee was not even yet a
legal entity, the Bank was still the trustee pursuant to Mississippi statutes, and a ruling which held otherwise
would be in error as a matter of law.

¶18. In addition to the aforementioned considerations, the Bank had reason to suspect the financial and
legal integrity of the substitute trustee, Planned Trusts, Inc. As of June 28, 1991, the date on which the
notice to accept the assets of the trust was given by Paul Roberts as president of the putative corporation
(as well as the cut-off date set by the trial court for the recovery of legal fees), Planned Trusts, Inc. had still
not been validly incorporated. Moreover, Planned Trusts, Inc. is given authority under its Articles of
Incorporation to issue one thousand shares of stock at a par value of $1.00 each, which indicates a rather
weak capital structure of said corporation. Had the Bank been asked to transfer the assets of the trust to a
legally and financially well-established corporation, it would have had less reason to contest various legal
issues on behalf of the beneficiaries.

¶19. The substitution of a trustee can have enormous consequences to the beneficiaries of a trust, and the
Bank had reason to proceed diligently in accordance with its fiduciary duties. In addition to the questions
surrounding the integrity of Planned Trusts, Inc., the Bank had other cause to proceed cautiously with
regard to this particular case. Most notably, in 1991 the Bank had seen the Park make a prior attempt to
substitute trustees in an ex parte proceeding of which it had been given no notice, in contravention of
established procedural requirements.

¶20. When considered in light of this history, as well the failure of the Park to follow the statutory
procedures in the second attempted substitution of trustees, the Bank can not be said to have been overly
cautious in continuing to obtain advice of counsel with regard to the substitution of trustees. In the opinion of
this Court, the Bank performed in this case as a diligent trustee should in requiring the Park to meet the
statutory requirements relating to trustee substitutions. This Court would not hesitate to rule against any
trustee who negligently allowed the trust to be placed under the control of a financially irresponsible or
legally non-existent substitute trustee, and we find that the Bank proceeded with due caution under the
particular facts of this case.

¶21. Another arguable basis for denying attorneys' fees after June 28, 1991, would be if it were determined
that the Bank was attempting to promote its own interests rather than those of the beneficiaries in incurring
the legal expenses. The Bank, however, correctly notes that the statutes with which it was attempting to
comply were passed for the benefit of the beneficiaries of trusts. While it may be true that the Bank derived
an incidental benefit from performing its legal duties owed under the statutes by avoiding legal liability for
breaching said statutes, the statutes were nevertheless written for the benefit of the beneficiaries of the trust.

¶22. Of significant dispute in this appeal is the standard of review to be applied thereto. A chancellor's
ruling on findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Denson v.
George, 642 So. 2d 909, 913 (Miss. 1994). A trial court's decision on attorneys' fees is subject to the
abuse of discretion standard of review. Barber v. Barber, 234 Miss. 89, 105 So.2d 630 (1958).
However, where questions of law are raised, this Court conducts a de novo review. Denson, 642 So. 2d
at 913 [citations omitted]. It is the opinion of this Court that to deny outright all attorneys' fees incurred after
July 28, 1991, was in error as a matter of law, where the Bank was merely following the dictates of the
statute in protecting the interests of the beneficiaries of the trust. A decision to deny such attorneys' fees in
their entirety goes against the intent of the previously discussed statutes and as such is subject to a de novo
review.

¶23. The Mississippi Uniform Trustees Powers Law impliedly recognizes the Bank's rights as trustee to
have legal representation for administrative duties. Such duties should encompass trustee substitutions.
Having said this, this Court makes no ruling as to the amount of attorneys' fees which should be awarded to
the Bank in this particular case. In deciding whether to seek legal counsel with regard to matters relating to
his duties as a trustee, a trustee must be acutely aware of the detrimental effect the expenses associated
with obtaining said counsel can have on the assets of the trust. It would indeed be a pyrrhic victory if a
trustee were to ensure that the statutory requirements relating to the trust were followed to the last detail,
only to unduly deplete the assets of the trust in the process.

¶24. Thus, this opinion should not be read as a blanket authorization for attorneys representing trustees to
use the statutory provisions relating to trusts as a means of generating legal fees at the expense of the trust
assets. Chancellors should carefully scrutinize any requests for attorneys' fees to be paid out of trust income
to determine whether said amounts are fair in relation to the amount of work done. The chancellor should
also consider the importance of the interest of the beneficiaries which the trustee is seeking to protect, as
well as whether the trust would be able to continue to perform its stated functions if the expenses were
allowed to be paid out of trust income. In cases involving misuse of trust assets to generate legal fees or to
promote some interest of the trustee, it is, of course, within the discretion of the chancellor to deny
attorneys' fees in their entirety.

¶25. To the extent that the amount of work performed by said attorneys is excessive in light of the
aforementioned considerations, the cost for such work should properly be borne by the trustee rather than
the beneficiaries of the trust. A trustee should not allow its counsel to undertake extraordinary legal
measures to ensure that the letter of the law is followed with regard to matters of dubious importance,
particularly if doing so would unduly deplete the assets of the trust. Although this Court finds, as noted
earlier, that the Bank acted responsibly in requiring that the statutory requirements be complied with, we
make no finding or recommendation as to the appropriateness of the amount of work performed by the
attorneys in this particular case, nor to the appropriateness of the specific amounts charged therefore. It is
left to the Chancellor on remand to make a ruling as to the appropriateness thereof, taking into
consideration the factors discussed above. A finding by the chancellor as to the amount of such attorneys'
fees will, as always, be subject to an abuse of discretion standard of review by this Court. Barber, 234
Miss. at 93, 105 So.2d at 630.

¶26. For the foregoing reasons, this case is reversed and remanded for a determination of a reasonable
amount of attorneys' fees owed to the Bank, to be paid out of the income of the trust.

¶27. REVERSED AND REMANDED.

SULLIVAN, P.J., PITTMAN, BANKS, ROBERTS, SMITH AN D MILLS, JJ., CONCUR.
McRAE, J., DISSENTS WITH SEPARATE OPINION JOINED BY LEE, C.J.




      McRAE, JUSTICE, DISSENTING:


¶28. I must respectfully dissent from the decision to remand this case for another determination of attorneys'
fees as the Bank failed to demonstrate an abuse of discretion.

      The allowance of attorney's fees is of course largely discretionary with the trial court when the same
      should be allowed and this Court will not undertake to substitute its judgment for that of the chancellor
      unless it clearly appears that the chancellor has abused his discretion or has failed to apply correctly
      the equitable principles which govern in such cases.

Barber v. Barber, 234 Miss. 89, 93, 105 So. 2d 630, 632 (1958).
¶29. The chancellor in this case refused to allow for attorneys' fees after June 28, 1991, having concluded
the Bank was no longer trustee as of this date since Brown had exercised his contractual right to substitute
trustees, and that any actions by the Bank after this date were therefore only precautionary in order to
protect its own interests, as opposed to the interests of the trust. The chancellor was correct in concluding
that it was improper to allow attorney fees to a party who is no longer trustee. Such a party should not be
permitted to incur legal bills at the expense of the trust as it could potentially wipe out the trust.

¶30. There is a presumption in favor of the validity of the trial court's judgment, and this Court will affirm the
judgment if it can be upheld for any reason. Gates v. Gates, 616 So. 2d 888, 890 (Miss. 1993); Taylor v.
F. & C. Contracting Co., 362 So. 2d 625, 628 (Miss. 1978); Rayner v. Lindsay, 243 Miss. 824, 138
So. 2d 902 (1962). Because the record supports the denial of attorneys' fees after June 28, 1991, the Bank
has failed to demonstrate an abuse of discretion. Therefore, I dissent from the majority's decision to remand
this case to the lower court for another determination of attorneys' fees.

LEE, C.J., JOINS THIS OPINION.
