ChiefJustice ^V^7*7^*^ Clerk James T. Worthen ^s^ao*^ c:,vn IY >sjA SK 

### Twelfth Court of Appeals Justices q hi:i Staff Att< >rney Sam Griffith Margaret Hussey Diane DeVasto Friday, March 31, 2006



### Mr. William R. Pemberton Mr. Timothy D. Salley P. O. Box 1112 604 East Goliad Avenue 306 N. 7th Street Crockett, TX 75835 Crockett, TX 75835
RE: Case Number: 12-04-00154-CV Trial Court Case Number: 8444 

### Style: In the Estate ofEldridge Lee Brimberry, Deceased 

### Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and numbered cause. Also enclosed is a copy ofthe court'sjudgment. Very truly yours, CATHY S. LUSK, CLERK 

# By: KtilUJUL. MA KatrinaMcClenny, ChiefDeputy Clerk

CC: Hon. John Ovard Judge Sarah Tunnell Clark Ms. Bridget Lamb

1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax. 903-593-2193 ServingAnderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches. Rains. Rusk. Sabine. San Augustine. Sketby, Smith. Trinity. I'psbur. Van Zandt and Wood Counties www.12thcoa.courts.state.tx.us

### NO. 12-04-00154-CV

IN THE COURT OF APPEALS



### TWELFTH COURT OF APPEALS DISTRICT 

## TYLER, TEXAS

IN THE EST A TE OF § APPEAL FROM THE ELDRIDGE LEE BRIMBERRY, § COUNTY COURTATLAW DECEASED § HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION 

### This is a probate case. Appellants, Jerry Lee Brimberry, Alice Sue Colburn, Norma Kay Durfee, and Tonya Renee Pelham, applied for probate of the will of Eldridge Lee Brimberry, 

### deceased. Theyalsosoughtto havetwo oftheexecutors namedin thewillappointed asindependent co-executors and to have Delores McComb McDonald, the third executor named by the testator, 

### disqualified from serving as independent co-executor. The trial courtadmitted the will toprobate and appointed all three executors named in the will as independent co-executors. The trial court 

### required each independent executor to post a $600,000.00bond although the will provided that no bond should be required ofthem. Appellants complain in their first issue that the trial court erred 

### in requiring Jerry Lee Brimberry and Norma Kay Durfee to give bond as a condition to their qualifyingas independentco-executors. In their secondissue, Appellantscontendthat the trialcourt 

### abused its discretion in failing to findthat DoloresMcComb McDonald was disqualified to act as independent co-executor. We modify the trial court's order and affirm as modified.

Background 

### Eldridge Brimberry died on August 21, 2003. His spouse of thirty-six years, Errolene Brimberry, diedfouranda halfyears earlier onMarch 25,1999. Herestateconsisted of$10,000.00

### in separate property and one-halfofthe community estate, her halfvalued at $383,869.00. Her will named her husband, Eldridge, as independent executor and trustee ofthe trust created by the will. The trust directed that the trustee pay to her husband out ofthe income of the trust estate such amounts "as are reasonably required, in the trustee's discretion, for his health, maintenance and support in his accustomed manner ofliving at my death." Apparently, Eldridge made no effort to segregate the property ofthe trust from his own property. On March 6, 2001, some two years after Errolene's death, Eldridge changed the name on his checking account in the First State Bankin Grapeland to "E. L. Brimberry or Delores McComb." The account created was ajoint account with right ofsurvivorship. The account had been opened 

### originally on March 18, 1981 as ajoint account of"E. L. Brimberry or Errollene Brimberry,"joint tenants with right of survivorship. At Errollene's death, the account balance was $1,244.00. At 

### Eldridge's death, the account contained $64,292.94. After Eldridge's death, Delores withdrew all but $1,200.00 from their joint checking account. 

### The inventory ofErrollene's estate shows that at her death she also possessed a community one-halfinterest in two certificates ofdeposit issued by the Grapeland State Bank worth a total of approximately $89,000.00, her community one-halfinterest amounting to $44,500.00. One ofthese certificates of deposit was closed on March 6, 2001, two years after Errollene's death. It was 

### replaced on that date by a new certificate styled as E. L. Brimberry, payable on death to Delores 

### McComb McDonald. At Eldridge's death, there was $70,000.00 in the account represented by the certificate ofdeposit. Delores claims the entire account as her own by virtue ofthe "payable on death" clause to her. 

### The inventory also shows that Errollene possessed a community one-half interest in an 

### Edward Jones account having a total value of$76,784.00, her halfinterest being $38,392.00. A Paine Weber account included in the inventory contained $199,562.00, Errollene's halfinterest 

### amountingto $99,781.00. Accordingto the evidenceadducedat trial, at Eldridge's death fouryears later, the Edward Jones account had grown to $171,000.00 and the Paine Weber account contained 

### $191,000.00. The total appreciation in the two accounts between the deaths of Errollene and Eldridge amounted to $86,654.00. 

### Shortlybefore Eldridge died, Delores collected a $297.00 payment on a contract for deed due

### from Willie Shepherd. Eldridge endorsed the check, and Delores deposited it in the checking account from which she withdrew all but $ 1,200.00. The contract for deed had been the community property ofErrollene and Eldridge, and Errollene's one-halfinterest became part ofthe trust estate ofthe trust created by her will. Appellants contendthat afterErrollene's death, Eldridge failed to segregate his propertyfrom the property ofthe trust created by Errollene's will. Since the trust property remained commingled with his own property, Appellants argue that the entire commingled fund must be treated as subject to the trust. While avoiding any accusation that their father breached his fiduciary duty in his management of the trust estate, they nevertheless maintain that his attempt to convey the bank accounts was ineffectual to transfer ownership to Delores. Therefore, they contend that Delores's claim as sole owner ofthe checking account and the certificate of deposit is a claim adverse to Eldridge's estate rendering her unsuitable to act as independent co-executor. They further contend that as one ofthe successortrustees to her father ofErrollene's trust, she breached her fiduciary duty 

### in withdrawing money from the bank account, at least part ofwhich was property belonging to the trust estate. Similarly, they regard her claim to the entire certificate ofdeposit payable to her on Eldridge's death as a breach ofher duty as trust fiduciary. Delores contends that as trustee ofErrollene's trust, Eldridge had broad powers to do all acts 

### that an absolute owner ofthe property could do, subject only to his fiduciary duty. In Delores's 

### view, Eldridge was free to consider the bank accounts as his own and an offsetting portion ofthe 

### investment accounts as trust property ifhe believed that would benefit the trust. The growth in the brokerage accounts together with his portion ofthe bank accounts exceeded the total amount ofthe 

### certificate ofdeposit payable to Delores on his death and the joint checking account that Delores took as survivor upon his death. At the conclusion ofthe final hearing, the court determined that Delores was entitled to the balance of the joint checking account as Eldridge's survivor and that she was entitled to the 

### certificate ofdeposit which Eldridge had directed the bank to pay to her on his death. Therefore, she was not making an adverse claim to property ofEldridge's estate. Hence, she was not "unsuitable" 

### to act asindependentco-executor. The courtappointedas independentco-executorsallthreepersons named in Eldridge's will to act in that capacity conditioned upon their each giving a $600,000.00bond. The trial court noted that Eldridge had been married three times and that each of the independent co-executors named was a child ofa different marriage.

Bond Required of Independent Co-Executors In their first issue, Appellants contend the court erred in requiring Jerry Lee Brimberry and Norma Kay Durfee to post bond contraryto the will ofthe testator that no bondbe required ofthem. Delores maintains that portion ofthe trial court's order setting bond is interlocutory and that the 

### appeal on this ground should be dismissed. As authority, Delores cites Estate ofNavar v. Fitzgerald, 14 S.W.3d 378, 380 (Tex. App.-El Paso 2000, no pet.). Applicable Law 

### Texas Probate Code section 149 states that ifthe will provides that the independent executor 

### shall not be required to give bond, the testator's direction shall be observed, and no bond required
unless
it be made to appear at any time that such independentexecutoris mismanaging the property, or has betrayed or is about to betray his trust, or has in some other way become disqualified, in whichcase, upon proper proceedings had for that purpose, as in the case of executors or administrators acting under orders of the court, such executor may be required to give bond. (Emphasisadded). Tex. Prob. Code Ann. § 149 (Vernon 2003).

A person is disqualified to serve as an executor ifhe is:

(a) An incapacitated person; (b) A convicted felon . . . ; (c) A non-resident . . . who has not appointed a resident agent to accept service of process. . . ; (d) A corporation not authorized to act as a fiduciary in this state; or (e) A person whom the court finds unsuitable.

Id. § 78.Texas Probate Code section 195 reiterates the mandate ofsection 149 that no bond maybe required ofa qualified and suitable person named as executor by the testator. 

### A probate order need not fully dispose ofthe entire proceeding in order to be appealable. See Crowson v. Wakeham, 897 S.W.2d779,781 (Tex. 1995). "However, [theorder] mustbe one which finally disposes ofand is conclusive ofthe issue or controverted question for which that particular part ofthe proceeding is brought. . . ." Id. Analysis The issues presented to the trial court in this case were the admissibility ofthe will to probate 

### and the suitability ofone ofthe co-executors named by the testator. The sole controverted question was the suitability ofco-executorDelores McComb McDonald. Although the trial court's order did not finally dispose ofthe entire probate proceeding, it disposed of all questions presented in the application for probate. In Navar, the probate court found that the independent executor, Navar, had not obeyed a 

### court order to appear and show cause why he had failed to pay certain claims ordered paid by the 

### court. The probate court therefore ordered Navar to post bond or face removal as independent executor. Navar, 14 S.W.3dat379. The court ofappeals held that the order requiring bond was not 

### a separable part ofthe proceeding, but only a part ofthat portion ofthe administration dealing with the satisfaction ofcreditors. Nothing in the record indicated that all creditor's claims had been 

### disposed of. Therefore, the order in question was not appealable because it was not conclusive of 

### the issue or controvertedquestion for which that particularpart ofthe proceedingwas brought. The order in the case at bar was conclusive ofthe controverted questions before the probate court. We conclude that under the test announced in Crowson, the order in this case is an appealable order. 

### The Probate Code vests the testator with the absolute power to select his own representative, and the probate court must appoint the person nominated in the will as independent executor unless that person is found to be disqualified or unsuitable. Hunt v. Knolle, 551 S.W.2d 764, 767 (Tex. 

### Civ. App.-Tyler 1977, no writ). When the testator provides that the independent executor named 

### in the will shall serve without bond, the testator's direction must be observed, unless it appears at any time that the independent executor is mismanagingthe property, or has betrayed or is about to 

### betrayhis trust, or has in someotherwaybecomedisqualified. Tex. Prob. Code Ann. § 149. Thetrial court found the named independent co-executors were not disqualified or unsuitable. There is
a complete absence ofevidence in the record ofacts or circumstances contemplated by the Probate Code that would authorize the probate court to ignore the testator's direction that no bond be 

### required ofthe independent co-executors. The trial court erred in requiring bond ofthe independent co-executors absent any ofthe grounds therefor recognized by the Probate Code. Appellant's first
issued is sustained.

Suitability ofDelores McCoivib McDonald In their second issue, Appellants complain that the trial court abused its discretion in failing to find that Delores McComb McDonald is a person who is unsuitable to serve as independent coexecutor ofthe estate. Appellants contend that Delores McComb McDonald is unsuitable because she claims property ofthe estate as her own. Applicable Law 

### The trial court is given broad discretion in determining whether an individual is suitable to
serve as an executor or administrator. Dean v. Getz, 970 S.W.2d 629, 633 (Tex. App.-Tyler 1998, 

### no pet.); Kay v. Sandler, 704 S.W.2d 430, 433 (Tex. App.-Houston [14th Dist] 1985, writ refd n.r.e.). The standard ofreview is abuse ofdiscretion. Olguin v. Jungman, 931 S.W.2d 607, 610 (Tex. App.-San Antonio 1996, no writ). 

### No person found unsuitable by the probate court is qualified to serve as an executor or 

### administrator. Tex.Prob.CodeAnn. § 78(e) (Vernon 2003). An individual claiming under the will or asserting a claim in probate against the estate is not unsuitable merely because ofthat claim or assertion. B oyles v. Gresham, 158 Tex. 1 58, 3 09 S.W.2d 5 0, 54 (1958). A different case is presented, however, when anamed executorclaims adverselyto the estate, as his own, propertywhich 

### is owned, claimed, or should be claimed by the estate. Bays v. Jordan, 622 S.W.2d 148, 149 (Tex. App.-Fort Worth 1981, no writ). The reason underlying the distinction is that a beneficiary, creditor,
or claimant does not dispute the estate's title, but seeks satisfaction ofhis claim from the estate's 

### assets. But one claiming as his own assets claimed by the estate is denying the estate's title. Hence, his personal interests are so adverse to those ofthe estate that he is unsuitable to act as the estate's 

### representative. Id.;seealsoHaynes v. Clanton, 257 S.W.2d789, 792 (Tex. Civ.App.-ElPaso 1953,

### writ dism'd by agr.). The administrator in Haynes was found unsuitable ("incapable ofperforming the duties ofhis trust") to continue to act as administrator, because he owned an eleven percent interest in a bank that had brought suit against the administrator to recover all ofthe assets ofthe 

### estate contending that all ofthe property had been acquired by the deceased with money embezzled from the bank. Haynes, 257 S.W.2d at 792. In Bays, the court ofappeals decided that the trial court had abused its discretion in granting letters testamentary to ajoint venturer with the decedent who claimed substantially all ofthe estates assets byvirtue ofawritten agreement with the testatorcreating rights ofsurvivorship in theirjoint ventures. Bays, 622 S.W.2d at 149. In Hitt v. Dumitrov, 598 S.W.2d 355, 355-56 (Tex. Civ. App.-Houston [14th Dist.] 1980, no writ), an individual was disqualified from serving as administrator ofthe estates ofboth a husband and his wife who died 

### together in a plane crash, because each estate had adverse claims to the same insurance proceeds. In a later case, a surviving spouse was found unsuitable, because she claimed property ofher deceased husband's separate estate as community property. Ayala v. Martinez, 883 S.W.2d 270, 272 (Tex. App-Corpus Christi 1994, writ denied). Where a trustee has wrongfully commingled trust funds with his own, the burden is on the 

### trustee or his successors to distinguish his funds from those ofthe beneficiary; ifthe trustee is unable to do so, the entire commingled fund or the property purchased therewith becomes subject to the trust. Eaton v. Husted, 141 Tex. 349,172 S.W.2d 493, 498-99 (1943); Logan v. Logan, 138 Tex. 40,156 

### S.W.2d 507, 510 (1941). If, however, the commingling is not wrongful, the basis for the general rule 

### is removed and no presumption is raised that the commingled fund and property purchased with it is subject to the trust. Logan, 156 S.W.2d at 510; Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 

### 853 (Tex. Civ. App.-Amarillo 1979, no writ). The trustee is presumed to have withdrawn his own money first, ifhe or she draws on an improperly commingled fund. Batmanis v. Batmanis, 600 S.W.2d 887, 890 (Tex. Civ. App.-Houston [14th Dist.] 1980, writ refd n.r.e.). Analysis 

### Appellants do not directly claim that Eldridge Brimberry violated his fiduciary duty as trustee 

### of the Errollene Brimberry Testamentary Trust. They essentially argue that unless and until he 

### formally segregated the trustproperty from his own, all of his property and all of the trustproperty was subject to the trust. As a result, they argue, he lacked the power to make a nontestamentarytransfer ofthe bank accounts to Delores McDonald because an undetermined amount ofthe bank 

### deposits were trust funds. Therefore, his creation of a joint checking account with right of 

### survivorship in Delores as well as the designation ofDelores as the payee upon his death ofthe certificate of deposit was not effective. Hence, they argue, Delores holds or claims these funds adversely to Eldridge's estate, which renders her unsuitable. As trustee of Errollene's trust, Eldridge had broad powers "to do all acts, to take all the proceedings, and to exercise all the rights, powers, and privileges which an absolute owner would have," subject always to the discharge ofhis fiduciary obligations. Errolene's will directed that the trustee may pay her surviving husband (Eldridge)

[s]uch amounts out of the income of the trust estate as are reasonably required, in the trustees' discretion, for his health, maintenance and support in his accustomed manner ofliving at the time of my death.


### The evidence at trial showed that Eldridge fully discharged his fiduciary responsibilities. When he 

### died he had approximately $171,000.00 in the Edward Jones account and $191,000.00 in the Payne Weber account. The original trust account ofthe Errollene's trust lists a total of$38,392.00 in the 

### Edward Jones account and $99,781.00 in the Payne Weber account. The appreciation in the brokerage house accounts far exceeds the $44,500.00 interest ofthe trust in the two certificates of 

### deposits listed as trust assets. If, as appears to be the case, Eldridge chose to considerthe certificates 

### ofdeposit as his own and an offsetting portion ofan investment account as trust property, he did not 

### wrongfully confuse the accounts requiring that all ofhis own property be considered subject to the trust. The substitute trustees/independent co-executors shouldhave no difficultyin adjusting accounts 

### between the Errollene's trust and Eldridge's estate. T he Eaton commingling rule, invoked by Appellants, is inapplicable to these facts. Eldridge's duties as trustee did not deprive him ofthe right to dispose ofhis own property, to direct that the certificates ofdeposit be payable on his death to 

### Delores, and to create a joint checking account with her with right ofsurvivorship. This record supports the conclusion that the bank accounts passed to Delores outside ofthe estate and that she therefore does not hold them adversely to the estate. There is no evidence that 

### Delorespresentlyclaimsthe $297.00 checkfromWillie Shepherdas her own. The trialjudge did not

### abuse her discretion in finding Delores suitable to serve as independent co-executor. Appellants'
second issue is overruled.

Disposition The order ofthe trial court admitting the will to probate is modified to delete the requirement ofbond ofthe co-executors. In all other respects, the judgment ofthe trial court is affirmed.

BILL BASS Justice

Opinion delivered March 31, 2006. Panel consisted ofWorthen, C.J., Griffith, J., and Bass, RetiredJ., Twelfth Courtof Appeals, Tyler, sitting by assignment.

(PUBLISH)

### COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS 

### JUDGMENT

MARCH 31, 2006

NO. 12-04-00154-CV

IN THE ESTATE OF ELDRIDGE LEE BRIMBERRY, DECEASED

Appeal from the County Court at Law ofHouston County, Texas. (Tr.Ct.No. 8444)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, 

### and the same being inspected, it is the opinion ofthis court that the order ofthe trial court below should be modified and as modified, affirmed. It is therefore ORDERED, ADJUDGED and DECREED that the order ofthe court below be modified to delete the requirement ofbond ofthe co-executors, and as modified, the trial court's order is affirmed. 

### It is further ORDERED that all costs ofthis appeal are hereby adjudged against the Appellants, Jerry Lee Brim berry, Alice Sue Colburn, Norma Kay Durfee and Tonya Renee Pelham, for which execution mayissue, and that this decisionbe certified to the court below
for observance. Bill Bass, Justice. Panel consisted ofWorthen, C.J., Griffith, J., and Bass, Retired J., Twelfth Courtof Appeals, Tyler, sitting by assignment.