                                   NO. 07-01-0457-CV

                              IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                 FEBRUARY 20, 2003
                           ______________________________

                  THE ESTATE OF IRIS KIRBY DILLARD, DECEASED

                          _________________________________

             FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

                   NO. 7146; HON. KELLY G. MOORE, PRESIDING
                        _______________________________

                                       Opinion
                           _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Ronald Glen Kirby (Kirby) and Glen David Dillard (Dillard) cross appeal from two

orders involving the estate left and trust created by Iris Kirby Dillard upon her death. Via

three issues, Kirby contends that the trial court erred in 1) finding that certain accounts

passed to Dillard and 2) approving Dillard’s accountings of the estate and trust assets.

Also through three issues, Dillard challenges the trial court’s 1) jurisdiction, 2)

determination that certain personal property needed to be placed in the trust and 3)

determination that Dillard “did not have the absolute right to withdraw all corpus and

income from the trust.”    We affirm in part, reverse and render in part, and reverse and

remand in part.
                                          Background

       The appeal involves the interpretation of a will left by Dillard’s wife, Iris. The latter

was also the mother of Kirby. Her will, which was subsequently offered for probate in the

Yoakum County Court at Law, named Dillard as her independent executor, and Kirby as

the alternate. Furthermore, she specifically bequeathed to her husband, “in fee simple,”

the following:

       . . . all my personal property including jewelry, clothing, automobiles,
       furniture, silver, books, and pictures, but specifically excluding cash and
       certificates of deposit, or money in any financial institution, to my husband
       . . . Dillard . . . in fee simple absolute if he survive[d] [her] . . . .

The residue of her estate “whether community or separate, real or personal” was then

“give[n]” to Dillard “as trustee, in trust for the benefit of . . . Dillard.” And, with regard to the

disposition of the property held in trust, Iris directed that the trustee “shall pay to or apply

for the benefit of . . . Dillard during his lifetime all of the net income of the Trust . . . .” Yet,

according to the will,

       [i]f at any time in the discretion of the Trustee my husband should be in need
       of additional funds for maintenance and support, then the Trustee, in
       addition to the income payments provided, shall in his discretion pay to or
       apply for the benefit of . . . Dillard such amounts from the principal of the
       Trust, up to the whole thereof, as Trustee deems necessary. In no event
       shall any trust income or principal be paid during the lifetime of . . . Dillard to
       anyone other than my husband.

This provision was reiterated later in the will in virtually the same language. Regarding

disposition of its assets upon termination of the trust, Iris directed that:

       [u]nless the Trustee decides to use and does use all the principal of this
       trust, the trust shall continue in effect until the death of the beneficiary, at
       which time the trust shall be terminated and the principal and any accrued




                                                 2
         interest of the trust shall be distributed to the beneficiary in fee simple and
         in equal shares.

(Emphasis added). 1

         Pursuant to the terms of the will, Dillard assumed the position of independent

executor of his wife’s estate. Sometime thereafter, Dillard moved to close the estate and

for discharge from the post of executor. In response, on December 15, 1995, the Yoakum

County Court executed an order pursuant to the request. Therein, it discharged Dillard as

independent executor and “approved” of “all matters and things by the said Independent

Executor on behalf of the estate,” and “settled and extinguished” all liability of the executor.

Furthermore, the following recitation was included in the order:

         [i]t appeared to the Court that no citation required by §152 of the Texas
         Probate Code was necessary because the Independent Executor was also
         the sole distributee of the Estate of Iris Kirby Dillard, deceased . . . .

         After the order closing the estate was entered, Kirby sued Dillard, in the 121st

District Court, for a declaratory judgment construing not only the will and trust but also the

validity of Dillard’s actions viz the trust. Allegedly, Dillard refused to fund the entity and

instead converted the property for his own use. Kirby also sought a judgment declaring

that 1) the will created a trust to be funded by the assets of Iris’ estate, save those

specifically bequeathed to Dillard, 2) Kirby and Iris’ grandchildren were the remainder

beneficiaries of the trust corpus once the trust ended, 3) the trustee was entitled to invade

the trust principal on behalf of Dillard only when necessary to maintain and support Dillard,


         1
           A question arose at trial as to what was meant when the word “beneficiary” was used for the second
tim e in the parag raph . The trial court ap pare ntly construe d it to mean Kirby and Iris’ three grandchildren for
it held that upon Dillard’s death the trust “shall terminate and all remaining Trust assets shall be distributed
one-half . . . to . . . Kirby, one-sixth . . . to Todd Plott, one-sixth . . . to Dana Cra wford, an d on e-sixth . . . to
Shannon Kirby” or to Iris’ heirs at law if the re m ainder be neficiaries d ie befo re term ination of the trust.
Furtherm ore, n o on e disp utes on appe al said con struc tion of the trust instru m ent.

                                                           3
4) Dillard breached his fiduciary duty of loyalty by placing his “self-interest over and above

his obligation to protect the interests” of the trust beneficiaries, 5) Dillard converted the trust

assets, 6) Dillard be removed as trustee, 7) Dillard violated §384 of the Texas Probate

Code by failing to fund the trust, and 8) Dillard provided an accounting as required by

statute.

       Upon trial, the court entered its order (signed on September 18, 2000) declaring that

the will created a testamentary trust, granted Dillard a life estate in its assets, granted Kirby

and Iris’ grandchildren (Todd, Dana, and Shannon) a remainder interest in the trust once

it terminated, bequeathed to Dillard (free of trust) only Iris’ “personal effects” since all other

real and personal property “including cash, stocks, bonds, partnership interests, and all

funds in financial institutions” passed to the trust, and limited the trustee’s ability to

encroach upon the trust principal on behalf of Dillard to circumstances when additional

funds were needed for his maintenance and support “when taking into account all other

resources available to him.” The trial court also removed Dillard as trustee, awarded

various bank and financial accounts to him, and ordered that Dillard “provide an accounting

. . . of all Trust assets . . . .” Approximately one year later, (that is, on October 3, 2001) an

order which approved of the amended accounting submitted by Dillard was signed by the

trial court. It is from these two orders that the parties appealed.

                                      Dillard’s Appeal

       As previously mentioned, Dillard attacks both orders via three issues. We address

each in the order presented.




                                                4
       Issue One - Jurisdiction

       Dillard initially contended that the district court lacked jurisdiction to entertain the

suit. This was allegedly so because the Yoakum County Court previously entered a final

order (that is, the one it signed on December 15, 1995) stating that Dillard “was the sole

distributee” of Iris’ estate and the parties were obligated to attack that determination in the

Yoakum County Court or by direct appeal from that court’s order. We overrule the

contention for the following reasons.

       First, Dillard does not dispute, on appeal, that the will created a trust. To the extent

that Kirby sought a construction of the terms of that trust, to remove the trustee, to

determine the liability of the trustee, to ascertain the beneficiaries of the trust, to determine

questions involving the administration and distribution of the trust, and to acquire an

accounting, those matters were within the original and exclusive jurisdiction of the district

court. TEX . PROP. CODE ANN . §115.001(a)(1), (3), (4), (5), (6), (7), (8), & (9) (Vernon Supp.

2003). Moreover, every aspect of the claims asserted by Kirby fell within one or more of

those categories.

       Second, we acknowledge that the Yoakum County Court executed an order wherein

it stated that the “Independent Executor was the sole distributee of” Iris’ estate. Dillard

suggests that this declaration somehow adjudicated what constituted trust property as well

as the interests of the trust beneficiaries in that property. Yet, as previously mentioned,

district courts have the original and exclusive jurisdiction to make determinations of fact

affecting the administration, distribution, or duration of a trust. TEX . PROP. CODE ANN . §

115.001(a)(6). Whether an instrument created a trust and the extent of that trust’s



                                               5
interests (and those of its beneficiaries) in property are clearly fact issues affecting the

administration of the trust. Consequently, only a district court had the power to adjudicate

them. In other words, the Yoakum County Court lacked jurisdiction to do that which Dillard

suggests it did via the December 15th order. And, any attempt by the Yoakum County

Court to do that was void for want of jurisdiction. So, to the extent that the December 15th

order can be read in the manner Dillard suggests, it was susceptible to attack and negation

via suit by Kirby in a court of competent jurisdiction, i.e. a district court. Heard v. State, 204

S.W.2d 344, 346 (Tex. 1947) (holding that a void judgment may be collaterally attacked).

       Third, Dillard’s reliance on Garza v. Rodriguez, 18 S.W.3d 694 (Tex. App.—San

Antonio 2000, no pet.) is misplaced.          That case did not involve an attempt by a

constitutional county court to construe and enforce a trust instrument or to remove a

trustee. Thus, its decision cannot be construed as holding that a determination by such

a court of those matters precludes a court of competent jurisdiction, i.e. a district court,

from considering them. More importantly, in a subsequent opinion which dealt with the

same parties and estate, the San Antonio Court of Appeals concluded that because the

probate court lacked jurisdiction to resolve issues of title to land, that matter could be

reconsidered at a later date by a court of competent jurisdiction. See Garza v. Rodriguez,

87 S.W.3d 628, 632 (Tex. App.—San Antonio 2002, pet. filed). In other words, the same

court which issued the opinion on which Dillard relies later acknowledged that acts which

exceed a court’s jurisdiction are subject to attack and reconsideration in a court of

competent jurisdiction.




                                                6
       Issue Two - Scope of Personalty to be Placed in Trust

       Next, Dillard argued that the trial court erred when it declared that the “stocks,

bonds, partnership interests and all funds in financial institutions” owned by Iris at the time

of her death “pass[ed] to the Trust to be held and administered according to the terms

thereof . . . .” We agree and sustain the issue.

       It is settled that in construing a will, the court must focus on the testatrix’s intent.

San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). And, most

importantly, that intent must be drawn from the will, not the will from the intent. Id. at 640.

In other words, the requisite intent must be ascertained from the language found within the

four corners of the will, and the court should focus not on what the testatrix intended to

write but the meaning of the words actually written. Id. at 639. Nevertheless, where words

are open to more than one construction, evidence of the testator’s situation, the

surrounding circumstances and like indicia which enable the court to place itself in the

shoes of the testatrix at the time the document was executed may be admissible. Id. This

is so because they may facilitate the determination of intent at that time. But, again, this

exception applies only when words are susceptible to more than one construction. Id. at

641. If they are not, then the court can look to nothing other than the face of the

instrument.

       The dispute we now address involved words found in the following provision of the

will: “. . . all my personal property including jewelry, clothing, automobiles, furniture, silver,

books, and pictures, but specifically excluding cash and certificates of deposit, or money

in any financial institution” were to be given to Dillard “in fee simple absolute if he survive[d]



                                                7
[her] . . . ,” according to Iris. Kirby asserts that the terms “cash” and “money in any

financial institution” encompassed the stocks, bonds, and partnership interests owned by

his mother at death. The trial court agreed.

       Authority holds that the terms “cash” and “money” have the same meaning when

taken in the usual and accepted sense. Baker & Taylor Drilling Co. v. Blanchard Drilling

Co., 363 S.W.2d 818, 820 (Tex. Civ. App.—Amarillo 1962, no writ). Furthermore, in its

strict sense, “cash” has been construed as referring to coin and paper money. Id.; Stewart

v. Selder, 473 S.W.2d 3, 8 (Tex. 1971). In a less strict sense, others have viewed it as

including checks and demand deposits in banks and savings institutions. Stewart v.

Selder, 473 S.W.2d at 8-9.       And, courts have been inclined to afford it a broader

interpretation (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 surrounding circumstances show that the terms were used in that sense by the

testator.” Id. So too has the word “money” been afforded flexible definition depending

upon the circumstances involved, and that definition has been said to encompass wealth

or property, in general. Id.; see In re Estate of Haldiman, 653 S.W.2d 337, 340-41 (Tex.

App.—San Antonio 1983, no writ) (interpreting the word “money” to include wealth and

property to avoid partial intestacy). Yet, despite these various constructions, our Supreme

Court has opted for a particular “usual and ordinary meaning of the term[s] when used in

a will to refer to a class or type of property owned by the testator,” and the meaning

adopted is one that construes the terms to encompass coin, paper money, checks and

demand deposits in banks and savings institutions. Id. at 8-9. So, we start there in



                                              8
interpreting what Iris meant when she incorporated the words “cash” and “money” into her

will to describe certain personalty Dillard was not to receive in fee simple.

       In short, unless the circumstances surrounding her execution of the will or some

other term of the instrument evinces otherwise, we construe her allusion to “cash,

certificates of deposit, and money in financial institutions” to mean coins, paper money,

checks and demand deposits alone. And, we find no such circumstances. For instance,

nothing of record suggests, much less establishes, that at the time Iris signed her will she

knew that the terms may mean more than just coin, paper money, checks, and demand

deposits. And, if she did not know of those alternate definitions, it is questionable to

suggest that she intended those common, ordinary words to include property outside of

their common, ordinary meaning.           Moreover, the attorney who drafted the will and

appeared as a witness at trial never testified that he told her of same. Nor was he even

asked about his interpretation of the phrase or what he intended it to encompass when

drafting the instrument for his client.

       Furthermore, and according to her son, Iris not only knew she owned bonds but also

was involved in the development of her community estate.             Yet, she said nothing

specifically about bonds when describing the type of personalty she intended to withhold

from Dillard. Given her purported awareness of her knowledge about and involvement in

her financial affairs, her omission suggests that she did not actually intend to include them

within the definition of “cash” and “money” in financial institutions.

       Nor do we see that applying a liberal definition to the words at issue here is

necessary to avoid partial intestacy. Iris’ will contained a residuary clause. So, nothing



                                               9
would pass via the laws of descent and distribution if we were to assign the words the

normal meaning accorded them by the Supreme Court in Stewart.

       Next, Kirby suggests that his conveying to his mother the property he inherited from

his father (Gerald) coupled with Iris’ alleged statement that she wanted the property to stay

within the family evinced that Iris intended to leave Kirby and his brother, Jerry, all or a

substantial portion of her estate, both community and separate. We disagree for the

following reason. The statement about keeping the property in the family was made over

17 years before Iris executed the will in question. Nothing of record indicates that she

uttered a like comment at any time thereafter or at the time she was drafting and executing

the will in question. Also absent from the record is any evidence that Iris agreed to leave

her sons any particular interest in her property if they gave her what they inherited from

Gerald.

       So too did Kirby fail to establish the specific value of the property he relinquished

back in the late 1960's. Yet, we can infer from the record that it was much less than the

value of the interest he now claims in Iris’ estate and the trust. Moreover, no one disputes

that the great increase in Iris’ net worth (since her first husband died) was due to the

entrepreneurial efforts and frugality of Dillard. So, given that the house (being realty)

passed to the trust for the benefit of Kirby and his brother’s children, what we have before

us is the contention that relinquishing a quarter interest in personalty of a substantially less

value proves his mother intended to award him an interest in a much greater estate created

in large part by Dillard. The latter inference does not reasonably flow from the former fact.

More importantly, nothing of record indicates that Iris had these thoughts in mind when



                                              10
incorporating the words “cash,” “certificates of deposit,” and “money in any financial

institution” into her 1987 will, and that is the pertinent time when determining intent.2 San

Antonio Area Foundation v. Lang, supra.

        Nor do we accept the contention that because Iris sought to do some estate

planning when executing the will, she intended to bequeath to the trust much more than

her interest in the realty. It may be that $600,000 had to be transferred to the trust to gain

various estate tax advantages. Yet, Kirby cites us to no evidence of record illustrating that

at the time Iris executed the will, the realty she intended to leave in trust was not worth that

sum or that she did not think it worth that sum.

        Additionally, had Iris intended to leave her stocks, bonds, and like assets in trust to

her children, then one is left to scratch his head over her later actions. As we will illustrate

in the discussion below, Iris and Dillard opened an account with Merrill Lynch and executed

a written agreement vesting Dillard with rights of survivorship. Placed within that account

were stocks and bonds, along with cash and other personalty. Indeed, the type of

securities which Kirby alleged were destined for the trust constituted a large segment of

that account’s value. Given the old proverb that “actions speak louder than words” and Iris’

act of vesting Dillard with rights of survivorship in her stocks, bonds and the like, we are

hard-pressed to conclude that she intended her children or the trust to receive them upon

her death.



        2
          For similar reasons, we reject the contention that because Iris supplied the “nest egg” to Dillard, she
undoubted ly intended to bequea th to her sons most if not all of her estate. Again, the inference does not
reasonably flow from the fact. And, while she may have kept Kirby informed about the exten t of her property,
he cites us to nothing of record suggesting, much less illustrating, that she had the rationales offered by Kirby
in m ind when exe cuting her w ill.

                                                      11
         Simply put, we deign to follow the directives of the Texas Supreme Court. In doing

so, we choose to focus on the meaning of the words actually written in the will, San Antonio

Area Foundation v. Lang, supra, and the generally accepted meaning assigned to the

words “cash” and “money.” And, according to that court, the “usual and ordinary meaning

of [those] term[s] when used in a will to refer to a class or type of property owned by the

testator” is coin, paper money, checks and demand deposits in banks and savings

institutions.   Stewart v. Selder, 473 S.W.2d at 8-9.           Nothing of record supports a

reasonable inference that Iris intended otherwise. So, the trial court erred in construing the

words in a manner exceeding that definition, and the error was harmful.

         Issue Three - Absolute Right to Withdraw All Principal and Income

         In his final issue, Dillard questioned whether the trial court erred in declaring that his

ability (as trustee) to encroach on the principal for his benefit be limited to those events in

which he “requires additional funds for his maintenance and support when taking into

account all other resources available to him.” This allegedly constituted error because he

had the unfettered discretion or absolute right to distribute the principal. We overrule the

issue.

         Resolution of this dispute requires us to again read the will to determine Iris’ intent

per the rules of construction discussed in the preceding issue. Furthermore, the pertinent

trust terms are found in §II(B) and (D) of the will. Through the former, Iris stated that:

         . . . [i]f at any time in the discretion of the Trustee my husband should be in
         need of additional funds for maintenance and support, then the Trustee, in
         addition to the income payments provided, shall in his discretion pay to or
         apply for the benefit of . . . Dillard such amounts from the principal of the
         Trust, up to the whole thereof, as Trustee deems necessary. In no event
         shall any trust income or principal be paid during the lifetime of . . . Dillard to
         anyone other than my husband.

                                                12
In paragraph (D), she wrote:

       . . . If at any time in the discretion of the Trustee, my Husband should be in
       need of additional funds for his maintenance and support, then the Trustee
       shall in his discretion pay to or apply for the benefit of my Husband, in
       addition to the income payments, such amounts from the principal of the
       Trust, up to the whole thereof, as Trustee deems necessary. In no event
       shall any income or principal from the Glen David Dillard Trust be paid during
       my Husband’s lifetime to anyone other than my Husband.

No one claims that any term in either provision is ambiguous or otherwise susceptible to

different meanings. Nor do we view them as being so. Furthermore, as can be seen from

the provisions themselves, Iris specified that the principal could be distributed to Dillard if

he “should be in need of additional funds for his maintenance and support.” (Emphasis

added). Given this, we are obligated to determine the meaning of “maintenance and

support.”

       Like words were used by the testatrix when creating a trust in State v. Rubion, 308

S.W.2d 4 (Tex. 1958).       There the Supreme Court had to decide what interest the

beneficiary had when the trust instrument allowed the trustee to distribute assets for the

beneficiary’s support and maintenance. The court noted that those terms evinced the

creation of support trust. Id. at 8. And, though a trustee’s discretion viz distributions from

such a trust may be considerable, it was not unbridled. Id. at 8-9. Quite the contrary, the

trustee must nevertheless act reasonably and in a manner commensurate with the purpose

of the trust. Id. at 9. This meant that his decision to distribute income or corpus for the

beneficiary’s support and maintenance could not be exercised at whim. Instead, the

trustee was obligated to base his decision after considering indicia such as 1) the size of

the trust estate, 2) the beneficiary’s age, life expectancy, and condition in life, 3) his

present and future needs, 4) the other resources available to him or his individual wealth,

                                              13
and 5) his present and future health, both mental and physical, to name a few. Id. at 10-

11. With these words and directives in mind, we turn to the trust before us.

        Admittedly, Iris used the word “discretion” when expressing the scope of the

trustee’s authority.        Yet, she also incorporated therein the words “support and

maintenance” and stated that the corpus could be expended when “necessary” to serve

that purpose and when he was in “need of additional funds.” “Support and maintenance,”

“additional funds,” and “necessary” hardly connote utter discretion to do that which the

trustee may care to at any given moment. Rather, they evince a restriction on the trustee’s

discretion and authority and denote an intent to permit expenditure when needed for

Dillard’s support and maintenance. So, like the testatrix in Rubion, Iris too created a

support trust. Given that, distributions of principal therefrom could be made only in ways

commensurate with that purpose. In other words, and contrary to the suggestion of Dillard,

the discretion vested in the trustee under the instrument at bar was and is not unbridled

or absolute. Instead, he, like the trustee in Rubion, must exercise it only after considering

the beneficiary’s needs, age, condition, separate resources, the size of the trust estate,

health, and the like. And, if upon considering those factors, the trustee reasonably

concludes that a distribution is warranted, only then can it be made.3 Finally, the wording

used by the trial court at bar to describe the trustee’s authority merely reflects the

restrictions imposed by Iris and recognized by the Supreme Court long ago.




        3
         Furthermore, the decision is subject to judicial review. Rekdahl v. Long, 407 S.W .2d 339, 344 (Tex.
Civ. App.--Eastland ), aff’d, 417 S.W .2d 387 (1967 ).

                                                    14
                                      Kirby’s Appeal

       As previously mentioned, Kirby also appealed from the two orders issued by the trial

court via three issues. We address each in the order presented.

       Issue One - Dillard was Barred from Contending that Certain Accounts

       Were Anything Other Than Community Property

       Through his first issue, Kirby asserted that Dillard was barred from contending that

Merrill Lynch Account No. 51D-11699 and American Express Account No.

0040618086553002 were anything other than community property. This is allegedly so

because he listed them or their contents as assets of Iris’ estate on an inventory previously

filed and approved by the Yoakum County Court sitting in probate. In so listing the

accounts or their contents in the inventory, Dillard judicially admitted that they were

community property and not property that passed to him via a joint tenancy with right of

survivorship agreement, according to Kirby. We overrule the issue.

       The contention that Dillard uttered a judicial admission via the inventory and was

estopped from contradicting it was not raised or pled below. Estoppel, being an affirmative

defense, must be specially pled. TEX . R. CIV. P. 94; Burkett v. Delaware Drilling Corp.,

435 S.W.2d 307, 308-309 (Tex. App.—El Paso 1968, writ dism’d. w.o.j.). Because it was

not at bar and because a review of the record illustrates that it was not tried by consent,

the claim was waived.

       Issue Two - Whether the Merrill Lynch Account Passed to Dillard

       Via a Joint Tenancy with Right of Survivorship Agreement




                                             15
       In his second issue, Kirby contended that the trial court erred when it found that the

Merrill Lynch Account mentioned in the preceding issue passed to Dillard by right of

survivorship. This is allegedly so because Dillard failed to prove that the account was

subject to such an agreement. We overrule the issue.

       In effect, Kirby questioned the legal sufficiency of the evidence to support the trial

court’s factual conclusion that the account was governed by a particular written agreement

signed by Iris and Dillard. In assessing whether the evidence is legally sufficient to support

a court’s judgment, we apply the test enunciated in Lewelling v. Lewelling, 796 S.W.2d

164, 166 (Tex. 1990). And, if upon viewing the evidence in a light most favorable to the

judgment we conclude that more than a scintilla exists to support it, then the finding is

legally sufficient. Id.

       Next, §439 of the Texas Probate Code also guides resolution of the dispute before

us. It pertains to rights of survivorship and states that

       [s]ums remaining on deposit at the death of a party to a joint account belong
       to the surviving party or parties against the estate of the decedent if, by
       written agreement signed by the party who dies, the interest of such
       deceased party is made to survive to the surviving party or parties . . . A
       survivorship agreement will not be inferred from the mere fact that the
       account is a joint account.”

TEX . PROB . CODE ANN . §439(a) (Vernon Supp. 2003). In other words, there must be a

written agreement signed by the decedent and providing that upon the death of the

decedent his interest survives to the other party. Stauffer v. Henderson, 801 S.W.2d 858,

863 (Tex. 1990). Additionally, the right cannot be established through either extrinsic

evidence or by a rebuttable presumption but only by a written agreement vesting rights in

the property to the survivor. Id. at 864.


                                             16
         At bar, there appears of record an agreement containing the requisite survivorship

language. No one disputes this. However, the document expressly references Merrill

Lynch Account No. 51D-11699, not Account No. 552-17M38. Thus, the argument involved

whether the agreement applied only to the former account and not the latter or to both. To

resolve the debate, Dillard presented the testimony of his Merrill Lynch broker. He

explained that the accounts were actually one and the same and that they had different

numbers simply because the original account was moved from Merrill’s Fort Worth office

to its Austin office. When an account is moved, he continued, a new number is assigned

to it to simply reflect the new office. New agreements were not executed.4 This is more

than a scintilla of evidence supporting the trial court’s determination that the written

agreement governed Account No. 552-17M38 and the property therein passed to Dillard

via rights of survivorship.5

         Issue Three - Accounting and Inventory and Appraisement
         Finally, Kirby contended that the trial court erred in approving the accountings it

ordered Dillard to file. This was allegedly so because the accountings provided by him do

not include a “complete list of receipts, disbursements, and other transactions regarding

the trust property . . . and fail to show which property is being administered.” We agree

and sustain the point.


         4
          At least, the Merrill Lynch broker testified that new agreements were not executed . Moreover, Kirby
failed to proffer a ny new agre em ents to rebut the broker’s testimony. This seems m ost telling. That one
wo uld open an account and place more than a million dollars worth of property therein without executing an
agreement to determine the rights and liabilities of the deposito r an d depositee is incredible. To adopt K irby’s
position without evidence of a new agreement would be to adopt the incredible. Strange days indeed, when
we d o that.

         5
           Inc identa lly, by offering the testimony of the brok er, Dillard was no t tendering extrinsic eviden ce to
evince an intent on behalf of the account owners to create rights of survivorship. Rather, he was sim ply
illustrating what agreement applied to what account. W hile Stauffer prohibits the former, it does not bar the
latter.

                                                         17
       At bar, the trial court ordered Dillard to “provide an accounting . . . of all Trust

assets” commencing with the assets as of the date Iris died 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 that the submission should

contain 1) an itemization of all trust property that has come to the trustee's knowledge or

trustee's possession and that has not been previously listed or inventoried as property of
the trust, 2) a complete account of receipts, disbursements, and other transactions

regarding the trust property for the period covered by the account, including their source

and nature, with receipts of principal and income shown separately, 3) a list of all property

being administered, with an adequate description of each asset, 4) a statement of the

cash balance on hand and the name and location of the depository where the balance is
kept, and 5) a statement of all known liabilities owed by the trust. TEX . PROP . CODE

§113.152 (Vernon 2001). Neither the original nor amended accounting proffered by Dillard

complies with these directives. For instance, there existed at the time of Iris’ death an
account with the First National Bank, numbered 140-2801, and containing a sum of

$45,034. To the extent that the $45,034 sum consisted 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 via rights
of survivorship. The order of the court declaring what accounts so passed to him said

nothing of First National Bank account number 140-2801, however.

       Furthermore, the trial court’s order alluded to an accounting of trust property only.
Yet, given our decision that the phrase “cash, certificates of deposit, and money in any

financial institution” included only coin, checks, paper money, and demand deposits held

by financial institutions, the accountings proffered by Dillard covered more than simply trust
property. Thus, they are inaccurate.




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       Accordingly, we reverse that portion of the trial court’s September 18, 2000 order

decreeing that Iris’ “stocks, bonds, and partnership interests” passed to the trust, render

judgment declaring that the phrase “cash, certificates of deposit, and money in any
financial institution” means only coins, paper money, checks, certificates of deposit, and

demand deposits in any financial institution, and affirm the remainder of that order as

modified. Next, we reverse that portion of the October 3, 2001 order approving of the
original and amended accountings of Dillard, remand the issue to the trial court for further

proceedings, and affirm the remainder of the order.



                                                 Brian Quinn
                                                    Justice




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