NO. 07-01-0457-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C FEBRUARY

20, 2003

______________________________ THE ESTATE OF IRIS K IRBY DILLAR D, DECEASED

_________________________________ FROM THE 121 ST DISTRIC T COURT O F YOAKUM COUNT Y; NO. 7146; HON. KELLY G. MOORE, PRESIDING

_______________________________

Opinion

_______________________________ Before JOHNSON , C.J., and QU INN and REAVI S, JJ. R onald Glen Kirby ( Kirb y) and Glen David D illar d (Dil lard ) cros s app eal f rom t wo orders involving the estate left and trust created by Iris Kir by Dill ard upon her death. Via three issues, Ki rby contends that the t rial court

erred in 1)

finding that certain accounts passed to Dillar

d and 2) approv ing Dil lard’s accountings of the es tate and trust assets. Also through t hree issues, Dillard c hallenges th e trial cour t’s 1) jur isdiction, 2) determination that certain personal proper ty needed to be placed in the trust and 3) determination thatDillard “ did not have t he absolute ri ght to w ithdraw a ll corpus a nd incomefrom the trust.”We affirm in part, r everse and r ender in part, and rever se and remand in part.2 Background The appeal involves the interpretation of a will left by Dillard’s wife, Iris. The latter
was also the mother of Kirby. H er will, which w

as subsequentl y offered for probate in the Yoakum County

Court at Law , named Dillar d as her independen t executor, and Kirby as the alternate. F urthermore, sh e specificall y bequeathed to her husband, “ in fee simple,” the fo llowing:

. . . all my person al property including jewelry, clothing, automobiles, furniture, silver , boo ks, and pictur es, but specifically excluding ca sh and certificatesof deposit, or money in any financ ial instit ution, to my husband . . . Dill ard . . . in fee simple absolute if he survi ve[d] [her]

. . . . The residue of her estate “whether comm unity or separate, re al or per sonal” was then “give [n]” to Dillard “as trustee , in trust for the benefit of . . . D illard.”And, wit h regard to the disposition of the property held in trus t, Iris directed that the trustee “shall pay to or apply for the benefit of . . . Dill ard during h is li fetime all of the net in come of the Trust . . . .” Yet, according to the wil l, [i]f at any time in the discr

etion of the Trustee my

husband should be i n need of additional funds f or maintenance and support, then the Truste e, in addition to the income pay ments provi ded, shall in his di screti on pay to or applyfor the benefit of . . . D illard suc h amounts from the pri ncipal of the Trust, up to the whole thereof, as T rustee deems n e cessary. In no event shall any trust

income or

principal be paid during the lifetime of . . . Dillar d to anyone other t han my husband. This provisi on was re iterated later in the wi ll in v irtually

the same languag e. Regardi ng disposition of its assets upon termination of the trust, Iri s directed th at: [u]nless t he Trustee decides to use and does use all the principal of this trust, the trust shal l continue in ef fec t until the deat h of the beneficiary , at which time the trust

shall be ter minated and the pri ncipal and any accrued1 A questi on arose at tr ial as to what was meant when t he word “b enefi ciar y” was used for

the second tim e in the p arag raph . Th e trial co urt ap pare ntly con strue d it to mean Kirbyand Ir is’ thr ee grandchi ldr en for it held that

upon Dil lar d’s dea th t he tr ust “ shall ter minate and al l r emaining Trust assets shal l be dist ri buted on e- ha lf

. . . t o . . . Ki rby , one- sixt h

. . . t o Todd Plott, on e-s ixth . . . to D ana Cra wfo rd, an d on e-s ixth . . . to Shannon Kir by” or t o Ir is’ h eir s a t law if th e re m ain de r be ne fic ia rie s d ie befo re term ination of the trust. Fu rther m ore, n o on e disp utes on a ppe al said con struc tion of the tru st instru m ent. 3 interest of the trust shall b e distr ibuted to the beneficiary in fee simple and in equal shares. (Emphasis added). 1 Pursuant to the terms of the w ill, Dil lard assumed the position of independ e nt executor of his wife’s estate. Sometim e thereafter, Dillard moved to clo se the estate and for discharge from the post of executor. In response, on D ecember 15, 1995, the Yoakum County Court executed an order pursuant to the r equest. Therein, it discharg ed Dillar d as independent executor an d “approved” of “all matter s and th ings by the sai d Independent Executor on behalf of the estate,”and “settled a nd exting uished” all liabi lity of theexecutor. Furthermore, the following recitation was included in the order: [i]t appea red to th e Court th at no cit ation re qu i red by §152 of the Texas Probate Code was neces sary becaus e the Independent Executor was also the sole distributee of the Estate of Ir is Kirby Dillard, deceased . . . . After the order clo si ng the estate was entered, Kirby sued Dillard, in the 121st DistrictCourt, for a declaratory judgment construing not o nlythe will and trust but also the validity of Dillard’ s actions viz the tr ust. Alleg edly, Di llard refused to fund the entity and instead converted th e p roperty for his own u se. Kirby

also sought

a judgment decl aring that1) the wi ll created a trust to be funded by the assets of Ir is’ estate, save thos e specifically bequ eath ed to Dilla rd, 2 ) Kirb y and Iri s’ grandc hildren were the remainder beneficiariesof the trust corpus once th e trust ended, 3) the trustee was entit led to inv ade the trust principal on behalf of Dillard onlywhen necess ary to maintain and support D illard,4

4) Dillard breached his fiduc iary duty of loyalty

by placi ng his “s elf-interest o ver and a bove his obligation to protect the interests” of the trust beneficiaries, 5) Dillard converted the trust assets, 6) Dill ard be remove d as trustee, 7 ) Dillar d violated §384 of the Texas Pr obate Code by failing to fund the trust, and 8) Dill ard provi ded an account ing as req uired by statute. Upon trial, the court entered its or der (sig ned on September 18, 2000 ) declarin g that the will created a testamentary trust, gr anted Dillar

d a life estate i n its assets , granted Ki rby and Iris’ g randchildren (Todd, Dana, and Shannon) a remain der interest in the trust once itterminated, bequeath ed to Dillard (free of trust) only Iris’ “personal eff ects” since all other real and personal property “including cash, stocks, bond s, partnership i nterests, and all funds in financial i nstitutions”passed to the tr ust, and limited the trustee’ s abi l ity to
encroa ch upon the trust principal on beha lf of Dillard to circumstances when add it iona l funds were needed for his maintenance and support “w hen ta king into account al l other
resourcesavailabl e to him.” The tr ial court al so removed D illard astrustee, a warded variousbank and financial accou nts to him, and or dered that Dil lard “prov ide an accounting

. . . of all Trust

assets . . . .” Approx imately oneyear later, (that is, on October

3, 2001) an order which appr

oved of the amended accounting submit ted by Dil lard wassigned by the trial cour t. It is from t hese two or ders that the par

ties appealed. Dillard’s Appeal As previously

mentioned, Dillard attacks both orders via three issues. W e address each in the order

presented.5

Issue One - J

urisdicti on Dillard initiall y contended t hat the d istrict c ourt lacked j urisdicti on to entertain t he suit. This was allegedly so because the Yo akum County C ourt previ ously enter ed a final order (that

is, the one it signed on December 15, 19 95) stating that Dillard “was the sole distributee”of Iris’ estate and the partieswere obl igated to atta ck that determi nation in the Yoakum Coun ty C ou rt or by direct appeal from that court’ s order. We overrule the contention for the foll owing r easons. First, Dillard does not dispute, on appeal, that thewill created a tru st. To the extent thatKirby s ought a construction of the te rms of t hat t rust , to re move the trustee, to determine the liabili ty of the trus tee, to ascerta in the beneficiar ies of the trust, to determine questionsinvolving the administra tion and d istributi on of the trust, and to acquire an accoun ting, those matters were within the origi nal and exclusive jurisdiction of the district court. T EX
. P ROP
. C ODE A NN
. §115.001(a)(1) , (3), (4) , (5), (6) , (7), (8) , & (9) (Ver non Supp. 2003). Moreov

er, every aspect of

the claims as serted by Kirby fell with in one or more of those categor ies. Second, we acknowled ge that the Yoakum County C ourt executed an order wherein itstated that the “Indep endent Executor was the sole distributee of ” Iris’ estate. Dillard suggeststhat this declaration somehow adjudi cated what constituted trus t property as well
as the interests o f the trust b eneficiaries in that proper ty. Yet , as previ ously menti oned, districtcourts have the origi nal and exclusi ve jurisdiction to make determina tions of fact affecting the administr

ation, distr ibution, or dur ation of a trust. T EX
. P ROP
. C ODE A NN
. § 115.001(a)(6 )

. Whether an instrument created a trust and the extent of that trust’s6

interests (and those of itsbeneficiaries) in property

are clearl y fact issue s affecting the administrati on of t he tr ust. Conse quen tly, only a di strict cour t had the power to a djudicate them. In other w

ords, the Yo akum County Court lacked jurisdic

tion to do that

which Dillard suggestsit did v ia the December 15 th order. And, a ny attempt by the Yoak um County Court to do that was void for w ant of jurisdic

tion. So, to theextent

that the December

15 th order can be read in the manne r Dillard suggests, it was susceptible to attack and negation via suit by K irby in a court of competent jurisdict ion, i.e. a distric t court. Heard v. State , 204 S.W.2d 344, 346 (Tex. 1947) (holding thata void judgment may be collaterally attacked). Third, Dillard’ s reliance on Garz a v. Rodriguez , 18 S.W .3d 694 (Tex. App.—San Antonio 2000, no pet.) i s misplaced. That case d id not inv olve a n att emp t by a constitutional county court to con strue and enforce a trust instrument or to remove a trustee. Thus, its deci sion cannot be cons trued as holding that a determination by such
a court o f those matters precl udes a court of competent jurisdi ction, i.e. a distric t court, from considering them. More i mportantly, in a subsequen t opinion w hich dea lt wi th the
same parties and es tate, the San Antoni o Court of Appealsconcluded that b ecause the probate court lacked jurisdic tion to resol ve issuesof title to land, th at matter could be reconsidered at a later date by a court of competent juris diction. See Garza v. Ro dr ig ue z, 87 S.W.3d 628, 632 (Tex. App.—San Antonio 2002, p et. fil ed). I n other wor ds, thesame court which issued the opinion on which Dillard relies later acknowledged that acts which exceed a court’s j urisdicti on are subject to attack and reconsid erati on in a court o f competent juris diction.7

Issue Two - Scope of Personalty to be Placed in Trust Next, Dillard argued that thetrial cour t erred w hen it decla red that the “stocks, bonds, partnership interests and all funds in financial i nstitutions”owned by Iris at the ti me of her deat h “pas s[ed] to the Tr ust to be held and admi niste red ac cordi ng to the ter ms thereof . . . .” We agree and sustain the is sue. Itis settled that in constr uing a w ill, t he court must focus on the testatr ix’s i ntent. San Antonio Area F

oundation v. Lang , 35 S.W .3d 636, 639 (Tex. 2000 ). And, mos t impo rtan tly, that intent must be drawn from t he will, notthe wil l from the intent. Id. at 640. In other wor

ds, the requisi te intent

must be ascerta ined from the lang uage found wit hin the four corners of the will, and the court should focus n ot on what thetestatrix intended to write but the meaning of the wordsactually

writte n. Id. at 639. Nevert heless, w here words
are open to more than on e construction, evidence of the testator’s s ituation, the surrounding circ umst ances and likeindicia w hich enable the court to place i tself in the shoes of t he te stat rix at the tim e the document was executed

may be admiss ible. Id. This is so because they may facilitate the determinati on of intent at that t ime. But, again, this exception applies only w hen words a re susceptibl e to more than one construction. Id

. at 641. If they are n ot, then the cour t can look to no thing other than the face of the instrument. The dispute we now address involved words found i n the followi ng provi sion of the will: “. . . all my perso nal prop erty includ ing jewelry, clo thing, automobiles, furn iture, silver, books, and pictures, but specifical ly exc luding cas h and certificates of deposit, or money in any financial institution ” were to be given to Dillard “in fee simple absolute if he survi ve[d]8

[her] . . . ,” according to I ris. Kir by asserts that the ter ms “cash” and “money i n any financial institution ” encompassed thestocks, bonds , and partnershi p interestsowned by his mother at deat h. The trial court agreed. Authority holds that the term s “cas h” an d “mo ney” h ave the same meaning when taken in the usual and accepted sens e. Baker & Taylor Drilling Co. v. Blanchard Drilli ng Co. , 363 S.W.2d 818, 820 (Tex. Civ . App.—Am arillo 1962 , no wri t). Furthermore, in its strictsense, “cash ” has been const rued as referr ing to coin and paper money. Id. ; Stewart
v. Selder , 473 S.W.2d 3, 8 (Tex. 1971). In a less strict sense, ot hers have vi ewed it as incl uding checks and demand de posits in bank s and savi ngs insti tutions. Ste wart v

. Selder , 473 S.W.2d at 8-9. And, courts have been incl ined t o afford it a broader interpretati on ( i.e. one that includes securities readily convertible into cash or other kinds of property)

when necessary to avoid partial intestacy or “where the provisions of the will and the surroundi ng circums tances show th at the terms were used in that sense by th e testator.” Id. So too has the w ord “money”been afforded flexibl e definition dep ending upon the circumstances invol ved, and that de finition has been said to encomp ass wealth
or property, in general. Id .; see In re Estat e of Haldim an , 653 S.W.2d 337, 340- 41 (T ex. App.—San Antonio 1983, no writ) (interpre ting the word “money”to include w ealth and property to avoid par

tial intesta cy). Yet, despite these var ious constr uctio ns, our Suprem e Court has opted for a particular “usual and ordinary meaning of the term[s] when used in
a will to r efer to a class or t ype of property

owned by

the testator,”and the meaning adopted is on e that con strues the ter ms to encompass coi n, paper money, checks and demand deposits in banks and savings inst itu tions. Id. at 8-9. So, we start there in9

interpreting what Iri s meant when she incorporated the words “cash” and “money” into her will to describe ce rtain personal ty Dil lard was not to receiv

e in fee simple. In short, unless the ci rcumstances su rrounding her executi on of the will or som e other term of the ins tru ment evinces otherwis e, we const rue her allu sion to “cas h, certificatesof deposit, and mo ney in financial institutions” to mean coins, paper mone y, checks and demand dep osits alone. And, we find no such circumst ances. For instance, nothing of record suggests, much less esta blishes, that at the time Iris s igned her w ill she knew that the terms may

mean more than just

coin, paper money , checks, and deman d deposits. And, if she d id not k now of those alternate definitions , it is q uestionable to suggestthat she intended tho se common, ordinary words toinclude property o utside of their common, or dinary meani ng. Moreov er, the attorney

who drafted the will a nd appeared as a witness at trial nev

er testified that

he told her of same. Nor was he even asked about his interpretation of the phr ase or what

he intended it to encompass when drafting the i nstrument for hisclient. Furthermore, and according to her son, Iris not only knew she owned bonds but also
was involved in the development of her community esta te. Yet, shesaid nothing specifically about bonds w hen describin g the type of personal ty she intended to withhold from Dillard. Given her purported awareness of her knowledge about and involvement in her financial aff airs, her omission suggests that she did not actually intend to incl ude them within t he definition of “cas h” and “money” in financial institution s. Nor do we see t hat applying a liberal definition to the words at issue here is necessary to avoid par tial intesta cy. Iri s’ wil l contained a r esiduary cla use. So, nothing10

wou ld pass via th e laws of descent and distri bution if we w ere to assig n the words the normal meaning accorded them by the Supreme Cour

t in Stewart

. Next, Kirby s uggests t hat his conveying tohis mother theproperty he inherited from his father (Gerald ) coupled w ith Iris’ alleged statement that she wanted the property to stay within the family ev inced that Iris intended to leave Kirby and his brothe r, Jerry, all or a substanti al portio n of her estate, both community and s eparate. We disagree for the following reason. The statement about keeping the property in the family

was made over 17 years before Iris executed the wi ll in ques tion. Noth ing of record indi cates that she uttered a like comment at any time ther

eafter or at the time she was dr afting and executing the will in question. Also absent from the record i s any ev idence that Iris agr eed to leave her sons any partic ular interes t in her prope rty if they gave her

what they

inherited fro m Gerald
. So too did Kirby

fail to establi sh the specific value of the pr ope rty he relinq uished back in the late 1960' s. Yet, w e can infer from the record th at it was much less than the value of the interest henow clai ms in Iris’ estate and the tr ust. Moreover, no one disputes that th e great inc rease in Iri s’ net wor th (since her

first husband di ed) was dueto th e entrepreneuri al efforts and f ru gal ity of Dilla rd. So , given that the h ouse (bein g real ty) passed to the trust for the benef it of Kirby and his brother’s children, what we have before
us is the contention that relinquishing a quarter interest in per sona lty of a substantially less value proves his mother intended to award hi m an interest i n a much greater estate created in large par

t by Dillard. The latter inferen ce does not reas onably flow from the former fact. More importantly, nothing of record indicate s t hat Iris had these thoughts in mind wh en2 For si mila r r easons, we rej ect t he content ion t hat because Iri s suppli ed the “ nest egg” t o Dil lar d, she

un do ub ted ly intended to bequea th to her sons most if not all of her estat e. Agai n, t he inf erence does not re as on ab ly fl ow from the f act. And, whi le she may have kept Ki rbyinf ormed ab ou t the ex ten t of he r pr op er ty, he cit es us to n othi ng of re cord suggest ing, much less i ll ustra ti ng, t hat she ha d the r ati onales offer ed by Ki rby in m ind w hen exe cuting her w ill. 11 inc orporating the words “cash,” “ certificates of deposit,” and “ money in any financial institution”into her 1987 w ill, and that is the pertinent ti me when determi ning intent. 2 San Antonio Area Fou

ndation v. Lang, s upra. Nor do we accep t the contention t hat because Iri s sought to do some estate planning when executing the w ill, she i ntended to bequeath to the t ru st much more than her interest i n the realty. It may be that $600,000 had to be tr

ansferred to the trust to gain variousestate tax advantages. Yet, Kir by citesus to no evidence of record illustra ting that atthe time Iris executed the will, the re alty sh e int end ed to leave in trust was not w orth that
sum or that sh e did n ot thi nk it wort h that s um. Addi tion ally, had Iris i ntended to leav e her stocks, bonds, and like assets in trust to her children, t hen one is l eft to scratch h is head over her later ac

tions. As w

e will illustra te in the discussion below, Iris and Dillard opened an accou nt with Merrill Lynch and executed
a writte n agreement vesting Di llard w ith right s of surviv orship. Placed wi thin that account
w ere stocks and bonds , along w ith cash and other personalty . Indeed, the ty pe of securities

which Ki rby all eged wer e destined for the t rust consti tuted a large seg men t of thataccount’s value. Given the old proverb that “actions speak loud er than words” and Iris’ act of vesting Dil lard with rig hts of survivorship in her stocks, bonds and the like, we are hard-pressed to conclude that she intended her children or the trust to receiv e them upon her death.12

Simplyput, we de ign to follow t he directives of the Texas Supr eme Court. In doing so, we choose to focus on the meaning of the wordsactually writte n in the wi ll, San Antonio Area Foundation v. La ng , supra , a n d the general ly accepte d meaning assi gned to the words “cash” and “ money.” And, according to that court, the “usual and or dinary meani ng of [those] term[s] when used i n a will to refer to a class or type of proper

ty owned by the tes tator” is coin, paper money, checks and dem and deposits in banks and savin g s institutions. Stewart v. Selder , 473 S.W.2d at 8-9. Noth ing of record supports a reasonable inference that Ir is intended other wise. So, the trial court erre d in construi ng the words i n a manner exceeding that defini tion, and the err or was harmful. Issu e Thre e - Ab solu te Rig ht to Wit hdra w All Princ ipal

and I ncome In his final is sue, Dillard questioned w hether the tri al court err ed in declaring that his ability (as trustee) to encroach on the principal for his benefit be limite d to those events in which he “requi res additional funds for his maintenance and support w hen taking i nto account all other resources available to him.” This allegedly constituted er ror because he had the unfettered disc retion or abs olute right to distribute the principal. W e overrule the issue. Resolution of this dispute r equires usto again read t he will to determine Iri s’ intent per the rules of construction discussed in the preceding issue. Fur thermore, the pertinent trust terms a re found in §II(B) and (D) of the w ill. Throug h the former, Iri s stated that:

. . . [i]f at any

time in the di scretion of the Tru stee my

husband should be in need of additional fundsfor maintenance and support, then the T rustee, in addition to the income pay ments provi ded, shall in his di scretion pay to or applyfor the benefit of . . . D illard suc h amounts from the pri ncipal of the Trust, up to the who le t hereof, as Trustee deems necessary . In no event shall any trustincome or pri ncipal be paid during thelifetime of . . . D illard to anyone other t han my husband.13

In paragraph (D), she w rote:

. . . If at any time in the discreti on of the Trustee, my Husband shou ld be in need of additional funds for his maintenance and support, then t he Trustee shall in his discr

et ion pay to or apply for the benefit o f my Husband, in addition to the income pay ments, such amo unts from the princ ipal of the Trust, up to the who le thereof, as Trus tee deems ne c essary. In no event shall any income or

principal from the Glen David D illard Trus t be paid durin g my Husband’s

lifetime to anyone other than my Husband. No one claims that any ter m in either provisi on is ambiguous or otherw ise suscepti ble to differentmeanings. N or do we vi ew them as bei ng so. Furthermore , as can be seen fr om the provisi ons themselve s, Iris s pecified that the princ ipal could be distributed to Dillard if he “should be in need of ad ditional f unds for his maintenance and support .” (Emphasis add ed). Give n this, we are oblig ated to determine t he meaning of “maintenance and support.” Like words w

ere used by the testatrix when creat ing a trus t in State v. Rubion , 308 S .W.2d 4 (Te x. 1958). There the Supreme Court had to decide w hat interest t he beneficiary had when the trust instrument allowed the tru st ee to distri bute assets for the beneficiary’s support and maintenance. The court n oted that thos e ter ms evinced t he creation of support trust

. Id. at 8. And, though a trustee’s di scretion viz distributi ons from such a trust may

be considerabl e, it wasnotunbridled. Id. at 8-9. Quite the contrary , the trustee must nevertheless act reasonably and in a manner comm ensurate with the purpose of the trust. Id. at 9. This meant that his d ecisi on to distri bute income or corpus for the beneficiary’s support and mai ntenance could not be exercised at w him. Instead, the trustee was obli gated to base hi s decision after considering indicia such as 1) t he size of the trust est ate, 2) t he beneficiary’s age, life expectancy, and con dition in life, 3) his present and future needs, 4)

the other res ources available to him or his indi vidual w ealth,3 Further more, the deci sio n i s subj ect to j udi cia l r evi ew. Rekdahl v. Long , 407 S. W .2d 339, 344 (Tex.

Civ. A pp.-- Ea stland ), aff ’ d, 417 S.W .2d 387 (1967 ). 14 and 5) his pres entand future health, bot h mental and phys ical, to name a few

. Id. at 10- 11. With these words and di rectives in mind, we turn to the trust before us. Admitte dly, Iri s used the word “discr etion” wh en expressi ng the scope of the trustee’s authorit y. Yet, she also incorporated there in the wor ds “support an d maintenance” and stated that thecorpus could be expended when “nec essa ry” to s erve thatpurpose and when he was in “need of additional funds.” “Suppor t and maintenance,” “additional funds,” and “neces sary” ha rdly conn ote utter disc retion to do that which the trustee may care to

at any gi ven moment. Rather, they evince a restriction on the trustee’s discretion and authority and denote an intent to permit expendit u re when needed for Dillard’s support and maintenance. So, like th e testatrix in Rubion , Iris too c reated a support trust. Given that , distribut ions of princi pal therefrom coul d be made only in ways commensurate with that purpose. In other wor

ds, and contrar

y to the sug gestion of Dillard, the discretion vested in the trustee under the instr ument at ba r was and is not unbrid led
or absolute. Instead, he, like t he trustee in Rubion , must exercise it only after considering the beneficiary’s n eeds, age, conditi on, separate res ources, the si ze of the trust estate, health, and the like. And, if upon consi dering thos e factors, the tr ustee reason ably concludes thata distribut ion is warranted, only then can it be made. 3 Finally , the wording used by the tri al court at bar to describe the tr ustee’s authority merely re flects the restricti ons imposed by Iris and r

ecognize d by the Supr

eme Court long ago.15 Kirby’ s Appeal As previous ly mentioned, Kirby al so appealed from the tw o orders is sued by the trial court vi a three issues . We address each in the order presented. Issue One - Dillard was Barred from Contending that Certain Accounts Were Anything Other

Than Comm unity Propert y Throu gh his first issue, Kirby as serted that Dillard was barr

ed from contending that Merrill Lynch Acco unt No. 5 1 D-11699 and Ameri can Expres s Account No. 0040 61 8086553002 were anything other than community property. This is allegedly so because he listed them o r their contents

as assets of Iris’ estate on an inventory previously filed and approved by the Yoakum Coun ty Court sitting i n probate. In solisting the accounts or their contents in the inventory, Dillard judicially admitted that they were community

property and not property that pass ed to hi m v ia a joint ten ancy w ith right of surviv orship agr

eement, according to Kirby . We overrule the iss ue. The contention that Dilla rd utte red a judici al admission v ia the inv entory and w as estopped from cont radi ctin g it was n ot ra ised or ple d bel ow. Estoppel, bein g an af firm ative defense, must be speci ally ple d. T EX
. R. C IV
. P. 94; Burkett v. D elaware Dril ling Corp., 435 S.W.2d 307, 308-309 (Tex. App.—El Paso 1968, wri t dism’d. w .o.j.). Because it wa s notat bar and becaus e a review of the record i llustrates that it wa s not tried by consent, the claim was waived. Issue Two - Whether the Merril l Lynch Account

Passed to Di

llard Via a Joint T

enancy with Ri

ght of Surviv

orship Agreem ent16

In his second i ssue, Kirby contended that the t rial court erred w hen it found that the Merrill Lyn ch Account mentioned i n the preceding issue passed to Dillar d by rig ht of survivo rship. This is allegedly so because Dillard failed to prove that the acco unt wa s subject to suc h an agreement. We overrule the issue. In effect, Kirby

questioned the legal sufficiency of the e vidence to support the trial court’s factual conclus ion that the account was governed by a parti cular w ritten agr eement signed by Iris

and Dillard. In assessing whether the evidence is legally sufficient to supp ort
a court’s j udgment, we apply the tes t enunciated in Lewelling v. Lewellin g, 796 S.W.2d 164, 166 (Tex. 1990) . A nd, if upon view ing the ev idence in a li ght most favor able to the judgment

we conclude that more than a scintilla exists to support it, the n the finding is legally sufficient. Id

. Next, §439 of the Texas Pr obate Code also guides resolution of the dispute before us. It pertai ns to rig hts of survi vorship a nd states that [s]umsremaining on deposit at the death of a part y to a joi nt account

belong to the survi ving par

ty or par ties agains t the estate of t he decedent if, by written agreement si gned by the party w ho dies, the inter est of su ch decea sed party is made to survive to the surviving party or parties

. . . A surviv orship agr eement will not be inferred from the mere fact that the account is a joint account.” T EX
. P RO B
. C ODE A NN
. § 439(a) (Ver non Supp. 2003). In other wor ds, there must be a written agreement si gned by the decedent and prov iding that upon the death of the decedent

his interes t survi ves to the other party

. Stauffer v. H enderson , 801 S.W.2d 858, 863 (Tex. 1990). Additionall y, the ri ght cannot be es tablished th rough eith er extrinsic evidence or by a rebuttable presumption but onlyby a w ritten agreement vesting rights in the property

to the surv ivor. Id . at 864.4 At least , t he Merri ll Lynch broker t esti fi ed that new agreements were n ot executed . Moreover, Kir by fai led to pro ffer a ny new agre em ents to reb ut the br oker’s test imony. This seems m ost t ell ing. That one wo uld open an account and pl ace more than a mill ion do ll ars wort h of propert y t herei n wit hout execut ing an agreement to deter mine the r ight s and liab ilities of t he de po sito r an d d ep os itee is in cr ed ible . T o a do pt K irb y’s posit ion wit hout ev idence of a new agr eement would be t o adopt t he incr edibl e. St range day s indee d, when we d o tha t.

5 Inc ide nta lly, by of

feri ng the test imony of the b rok er, D illard wa s no t tend ering extrin sic e viden ce to evi nce an i nt ent

on b eha l f o f t he a cco unt own er s t o cr eat e r i ght s of sur vi vo rs hi p. Ra t he r, h e w as sim ply il lust rati ng what agr eement appli ed to what account. W hil e Stauf fer prohi bit s the f

ormer, i t does not

bar t he latter. 17 Atbar, there appear

s of record an agreement conta ining the requisite survivorship language. No o ne disputes this. However, the document expressly reference s Merrill Lynch Account

No. 51D-11699, not Account No. 552-17M38. Thus, the arg ument involved whether the agreement applied on ly to the former acco unt and not the latte r or to both. To
reso lve the debate, Dil lard p r esented the testimo ny of his Merrill Lynch broker. He explained that the accounts were ac tually one and the same and tha t they had di fferent numbers simply because the orig inal account was moved from Merrill’s Fort W orth office to its Austin office. When an account is moved, hecontinued, a new number is ass igned to it to simpl y reflect t he new office. New agree ments were n ot executed. 4 This is more than a scintil la of

eviden ce supporting the trial court’s deter mination that the w ritten agreement

governed Account No. 552- 17M38 and the proper ty therein passed to Dillard via rig hts of survi vorship. 5 Issue Three -

Accounting and I

nventory and Appr

aisement Fi nall y, Kirb y contended that the trial court erred in app roving the accountings it ordered Dillard to file. This w as allegedl y so becausethe accounting s provide d by him do notinclude a “complete listof receipts, di sbursements, and o ther transact ions regar ding the trust proper

ty . . . and fail to show

which pr

operty is being adm inistered.”We agree and sustain the po int.18

Atbar, the tri al court ordere d Dillard to “provide an accounting . . . of all Trust assets” commencing w ith the assets as of the da te Iris die d and ending “ as of the last day of the month preceding the date of the accounting.” So too did it direct him to comply with §113. 152 of the Texas Trust Code. Next, the latter states tha t the submission should contain 1) an itemiz ation of all trust proper

ty that has come to the trustee's knowl edge or trustee's possession and that has not been pr eviously listed or inventori ed as property of the trust, 2) acomplete account of receipts, di sbursements, and o th er transactions regarding the trust pr

operty for theperiod covered by the a ccount, including their source and nature, wi th receipts of principal and income shown separately , 3) a listof all property being administered, with an adeq uate descripti on of each asset, 4) a statement of the cash balance on hand and t he name and location of the depo sitory where the balance is kept, and 5) a statement of all known liabiliti es owed by the trust. T EX
. P ROP
. C OD E §113.152 (Vernon 2001). Neither the original nor amended accounting proffere d by Dillard compl ies w ith these dir ectives. For instance, there exi sted at the time of Iris’ death an accoun twith the First Nat ional Bank, number ed 140-2801, and containing a s um o f $45,034. To the extent that the $45,034 sum con sisted of money or cash, Iris’ interest in same passed to the trust. Thus, Dillard was obligated to account for those funds. He did not. Instead, he stated in the accounting that the trial court found them to be his v ia rights of survivorship. The order of the court declaring what acc ounts so p assed to him said nothing of Fir

st National Bank account number 140-2801, however. Furthermore, the trial court’s order alluded to an acco unti ng oftrust prop erty o nly. Yet, given our deci sion that the phrase “ca sh, certifica tes of deposit, and money in any financial institution ” included only coi n, checks, paper money, and demand depos its held by financial institutions, the accountings prof fered by Dillard covered more than simply trust property. Thus, they ar e inaccurate.19

Acco rdin gly, we reverse that port ion of the t ri al court’s September 18, 2000 or der decreeing that Iris’ “stocks, b onds, and partner ship interes ts” passed to the trust, render judgment

declar ing that the phrase “ cash, certi ficates of deposit, an d money in any financial institution ” means only coi ns, paper money, check

s, certificates of deposit, and demand depo sits in any fina nci al i nsti tuti on, a nd affirm the r emai nder

of th at order as modified. Next, we reverse that portio n of the O ctober 3, 2001 or der approvi ng of the original and amended accounting s of Dillar d, remand the issue to t he trial court for further proceedings , and affirm the remainder of the order.

Brian Quinn Justice