AFFIRMED and Opinion Filed August 20, 2019




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00704-CV

                 IN THE ESTATE OF JOHN M. LITTLE, JR., DECEASED

                            On Appeal from the Probate Court No. 1
                                     Dallas County, Texas
                             Trial Court Cause No. PR-15-03606-1

                              MEMORANDUM OPINION
                   Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                   Opinion by Justice Whitehill
        This case involves a dispute between three siblings concerning funds in their deceased

father’s survivorship bank account that gave only one sibling survivorship rights. The trial court

granted summary judgment for the account surviving party against his siblings’ claims and entered

a final take nothing judgment from which his siblings appeal.

        A pivotal question is whether, absent additional facts not present here, a revocable trust’s

non-settlor co-trustee owes the trust’s contingent beneficiaries fiduciary duties regarding the

settlor’s decisions to exclude assets from the revocable trust and instead deposit those assets in a

survivorship account favoring the co-trustee as the sole surviving party. The answer is “no,”

because the settlor retains the prerogative to dispose of the assets under his or her control as he or

she sees fit.

        More specifically, appellants raise two issues. The first issue argues that the trial court

erred in granting final summary judgment against them on their fiduciary breach and money had
and received claims1. We reject that issue because, although appellants have standing as trust

beneficiaries complaining about appellee’s conduct as a co-trustee instead of the settlor’s conduct,

appellants did not raise a genuine issue of material fact showing that appellee breached a fiduciary

duty owed to them in this case.

             The second issue argues that the trial court erroneously excluded certain evidence from the

settlor’s estate planning lawyer regarding the trust’s creation—but before the settlor engaged in

the transactions at issue. We reject this issue because appellants have not shown that the excluded

evidence was relevant.

             Accordingly, we conclude that the trial court did not err in granting summary judgment

against appellants and affirm the trial court’s judgment.

                                                              I. BACKGROUND

             John Little, Jr. (Father) had three children; Mary Ann, Jay,2 and Dan.3 The Little family

owned a ranch and related livestock and equipment.4 Father owned a 100% interest in the livestock

and equipment. Prior to 2006, Mary Ann, Father, Jay, and Dan each owned a 25% undivided

interest in the real estate.

             Father also had a will and a revocable living trust (the Trust). According to Dan’s affidavit,

Father created a will dated June 2, 2010. Dan further stated that Father created the Trust in 2005

and amended and restated the Trust agreement in February 2014. Mary Ann and Jay do not dispute

these facts, and the Trust agreements are in the record. The Will, however, is not.




     1
       There is no argument or authority on appeal here or in the court below, concerning summary judgment on a “money had and received claim.”
We thus construe this solitary reference as part of the alleged breach of fiduciary duty claim.
     2
         Jay died during the pendency of this suit. For purposes of this appeal, however, we refer to his estate as “Jay.”
     3
         Because the decedent, Father, and two parties have the same last name, we address Father’s children by their first names.
     4
         We draw the facts from the parties’ summary judgment evidence.

                                                                         –2–
        Father named Dan, Mary Ann, and Jay residuary Trust beneficiaries, and he named himself

and Dan co-trustees during Father’s lifetime. The Trust further provided that Northern Trust would

serve as trustee when Father died.

        Both Trust agreements include a “Schedule of Property.” Both schedules list “$10” as the

Trust’s only asset. There is no argument or evidence that Father ever deeded the ranch real estate

or conveyed the ranch livestock and equipment to the Trust. Nor is there any evidence in the

record that Father ever funded the Trust with anything other than $10.

        In 2000, and again in October 2014, Father created survivorship bank accounts at Northern

Trust. He named Dan as both accounts’ sole surviving party. Mary Ann and Dan do not dispute

these facts.

        In 2006, Father sold his 25% interest in the ranch land to Mary Ann, Jay, and Dan, in

exchange for which each signed a $169,500 promissory note secured by each child’s interest in

the real estate. Although the notes themselves are not in evidence, Dan’s summary judgment

affidavit states that the notes were “payable to Dad in the amount of $169,500 which were all

payable on demand, though the understanding among our family members was that Dad would not

make demand for payment until the ranch was sold to a third party.” Mary Ann and Jay did not

controvert this evidence. There is no argument or evidence that the Father transferred or conveyed

the notes to the Trust.

        Dan’s affidavit further states:

        As with the first Northern Trust survivorship account, Dad deposited whatever
        funds came into his possession into the second account and paid all of his living
        expenses and debts out of that account until his death, with me or my assistant
        Debbie Cooper helping make deposits and prepare and send out checks for him
        throughout that time until his death.

There is no contrary evidence.




                                               –3–
          A document dated March 24, 2014 (roughly eight years after the notes were executed) and

captioned “RELEASE OF LIEN” is in the record. This document recites that Father and the Trust

were the note payees. These documents, however, do not themselves contain a promise by any

note obligor to pay any money to any payee.

          The Little family sold the ranch in March 2014. In addition to the amount paid for the real

estate, the purchaser paid: (i) $108,000 for equipment, (ii) $108,000 for livestock, (iii) $23,904.08

for a life estate on 24.820 acres of the ranch owned by a family partnership in which Father had

an interest, and (iv) $134,723.68 for the partnership interest purchased in connection with the life

estate. All of the sale proceeds attributable to Father’s interests were deposited in the second

survivorship account. There was $605,751.45 in that account when Father died in 2015.

          By the Trust’s terms, Dan ceased being a co-trustee when Father died. Although named as

successor trustee, Northern Trust declined to serve. Consequently, the probate court appointed a

substitute trustee who accepted that appointment.

          Father’s estate earned $4,349.24, which was deposited in the survivorship account.5 And

Dan paid $200,611.92 of Father’s post-death expenses from that account.

          After being told that the note proceeds were to become Trust property, Dan transferred

money from the survivorship account to the trustee, including (i) $70,595.49 in proceeds from the

promissory note payments, (ii) $23,904 received for the life estate, and (iii) $121,201.43 for

Father’s share of the partnership. He transferred the money so the trustee could cover Father’s

bequests and remaining expenses.                          Post-transfer, $216,000 in survivorship account funds

remained. Those remaining funds form the basis of this dispute.

          On December 9, 2015, Mary Ann and Jay sued Dan in the 191st District Court alleging

that he breached a fiduciary duty regarding the transfer of funds from the revocable trust to the


   5
       Neither party addresses the source of these funds or makes any separate argument about their treatment.

                                                                     –4–
survivorship account. That case was subsequently transferred and made a part of the current

probate court proceeding.6

            The trustee moved for instructions seeking direction regarding the disposition of potential

claims against Dan for the remaining survivorship account funds. The probate court subsequently

entered an order finding that “pursuing the claims against Dan would not be in the best interest of

the Trust, the Estate, or the beneficiaries.” Accordingly, the probate court ordered the trustee to

assign the potential claims against Dan 1/3 each to Mary Ann, Jay, and Dan—which the trustee

did.

            Dan moved for summary judgment arguing that (i) Mary Ann and Jay have no standing to

assert their claims against him and (ii) there is no evidence that Dan breached a fiduciary duty in

connection with the $216,000.

            Mary Ann and Jay responded to that motion and attached the affidavit of James Mincey,

Father’s estate planning lawyer. Dan objected to paragraphs three through five of that affidavit,

and the court sustained those objections. The court also sustained objections to Dan’s summary

judgment exhibit 4 (an email from Mincey).

            The court granted Dan’s summary judgment motion and entered a final judgment that

dismissed with prejudice all claims that Mary Ann and Jay have asserted or could have asserted in

that case. Mary Ann and Jay appeal from that judgment.

                                                                     II. ANALYSIS

A.           First Issue (Standing): Do Mary Ann and Jay have standing?7

            Yes, they have standing because they complain about Dan’s conduct as a co-trustee and

not about their father’s decisions as the Trust’s settlor.


     6
         The pleadings from the 191st court are not included in our record.
      7
        Appellant’s first issue address both standing and the duty/breach arguments. Because standing is conceptually a separate question from
duty and breach, we separate this issue into two distinct parts.

                                                                        –5–
          Here, as in the court below, the parties dispute whether Mary Ann and Jay have standing.

To have standing, a party must have a “sufficient relationship with the lawsuit so as to have a

justiciable interest in its outcome.” Austin Nursing Ctr. v. Lovato, 171 S.W.3d 845, 848 (Tex.

2005). Because standing is a component of subject-matter jurisdiction, we begin with this

threshold issue. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex. 1993).

          Subject matter jurisdiction can be raised at any time, including for the first time on appeal.

Id. at 445. Whether subject matter jurisdiction exists is a question of law subject to de novo review.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

          Dan argues that Mary Ann and Jay as contingent beneficiaries of a revocable trust have no

standing to complain about what Father as the Trust’s settlor chose to do with his money during

his lifetime. Mary Ann and Jay respond that they are not complaining about Father’s actions;

instead, their complaints concern Dan’s conduct as co-trustee and his alleged misappropriation of

Trust property.

          Determining whether a party has standing to assert a particular claim depends on the facts

pled and the cause of action asserted. Mazon Assocs., Inc. v. Comerica Bank, 195 S.W.3d 800,

803 (Tex. App.—Dallas 2006, no pet.).8 Standing may be predicated on statutory or common-law

authority. See Williams v. Lara, 52 S.W.3d 171, 178–79 (Tex. 2001). When standing has been

statutorily conferred, the statute itself serves as the proper framework for a standing analysis.

Aubrey v. Aubrey, 523 S.W.3d 299, 311 (Tex. App.—Dallas 2017, no pet.).

          Dan argues that Moon v. Lesiker, 230 S.W.3d 800, 806 (Tex. App.—Houston [14th Dist.]

2007, pet. denied) directly answers the standing question here. We disagree.




    8
      As previously noted, we do not have the petition in our record. But the summary judgment motion, response, and the court’s judgment
make clear that Dan’s alleged fiduciary duty regarding the survivorship account funds is at issue.

                                                                 –6–
        Moon involved a dispute between a brother and a sister over an asset their father placed in

a revocable trust. During his lifetime, however, the father sold the asset to the brother at a

significantly discounted value. After the father died, the sister sued the brother seeking a

constructive trust and an accounting for the asset. The Moon majority held that because the father

was the settlor, sole beneficiary, and co-trustee of a trust that he had the power to revoke during

his lifetime, the sister lacked any justiciable interest in property the father removed from the trust,

and therefore lacked standing. Id. at 806.

        Justice Guzman’s concurrence, however, stated that the standing issue was resolved by the

property code section permitting a suit by contingent beneficiaries. Id. at 806–807. Although she

agreed with the majority that the revocable trust’s contingent beneficiaries were not entitled to

relief on the merits, Justice Guzman did not agree that such fact prevented their standing to present

a justiciable issue. See id.

        We conclude that Moon’s concurring opinion is a more reasoned view of standing in this

situation. Section 115 gives a district court jurisdiction over proceedings against a trustee or

concerning a trust. Under the property code, “any interested person may bring an action under

Section 115.001 . . . .” TEX. PROP. CODE §115.011(a). An “interested person” is defined as “a

trustee, beneficiary, or any person having an interest in or claim against the trust or any person

who is affected by the administration of the trust.”          TEX. PROP. CODE § 111.004(7).          A

“beneficiary” is “a person for whose benefit property is held in trust, regardless of the nature of

the interest.” Id. at 111.004(2). And an “interest” is “any interest, whether legal or equitable or

both, present or future, vested or contingent, defeasible or indefeasible.” Id. §111.004(6).

        Mary Ann and Jay are trust beneficiaries, assignees of the trustee’s claims, and interested

persons as defined by the property code. Therefore, regardless of their ability to succeed on the

merits, they have standing to assert their claims against Dan as co-trustee when the transactions

                                                 –7–
occurred. In reaching a summary judgment decision on the merits, the trial court implicitly reached

the same conclusion which was not erroneous.

B.     Second Issue: Did the trial court erroneously exclude evidence from Father’s estate
       planning lawyer?

       Mary Ann and Jay’s second issue argues that the trial court erred in sustaining Dan’s

objections to the Mincey affidavit. Because this issue’s resolution affects our analysis of Mary

Ann and Jay’s first issue merits arguments, we discuss their second issue next. As discussed

below, we conclude the evidence was properly excluded.

       The rules of evidence control the admissibility of evidence in summary judgment

proceedings; thus, we review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163 (Tex. 2018). An abuse of discretion

occurs when the trial court acts arbitrarily or without reference to any guiding rules and principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We must uphold

the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). And we will set aside the trial court’s

judgment only if the “erroneous evidentiary ruling probably caused the rendition of an improper

judgment.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see TEX.

R. APP. P. 44.1(a)(1).

       Dan objected to the Mincey affidavit paragraphs three-five based on hearsay, relevance,

and speculation. Mary Ann and Jay argue that the objections should not have been sustained

because (i) the Mincey affidavit impeaches Dan’s summary judgment affidavit, (ii) the evidence

is admissible under TEX. R. EVID. 803 as a “then existing state of mind,” and (iii) the evidence is

admissible under the “Dead Man’s Rule.” See TEX. R. EVID. 601.

       The complained-of paragraphs in the Mincey affidavit state that (i) when he executed the

2005 original and 2014 amended and restated Trust agreements, Father expressed his intent that
                                                 –8–
all of his assets would pass under the Trust, (ii) Father never expressed any intent that the cattle

and equipment would be bequeathed, devised, or gifted to Dan, or their proceeds placed in a

survivorship account, and (iii) Mincey was not aware, prior to Father’s death that any assets were

in a survivorship account. Instead, Mincey thought that the proceeds from all of Father’s assets

were in a Trust account. Mincey was surprised to learn about the survivorship account.

       But to be admissible, evidence must be relevant to the issues presented in the case. TEX.

R. EVID. 402.4; City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 186 (Tex. 2001).

Evidence is relevant if: (i) it has any tendency to make a fact more or less probable than it would

be without the evidence and (ii) the fact is of consequence in determining the action. TEX. R. EVID

401.

       In determining relevancy, we look at the purpose of offering the evidence. Rhey v. Redic,

408 S.W.3d 440, 460 (Tex. App.—El Paso 2013, no pet.). The relevancy test is satisfied if there

is some logical connection, either directly or by inference, between the fact offered and the fact to

be proved. Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764,

793 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

       There is no logical connection here for several reasons.

       To start, all funds on deposit in a survivorship account belong to the survivor, and the

depositor’s intent to use or regarding ownership of those funds may not be considered:

       The written agreements are determinative of the existence of a right of survivorship.
       Because the account cards are clear and unambiguous regarding the parties’ intent
       to create joint accounts with the right of survivorship, no extrinsic evidence to the
       contrary is admissible.

Banks v. Browning, 873 S.W.2d 763, 765 (Tex. App.—Fort Worth 1994, writ denied); accord,

Sheffield v. Estate of Dozier, 643 S.W.2d 197, 198 (Tex. App.—El Paso 1982, writ ref’d n.r.e.).

       But even if evidence of Father’s intent when creating the survivorship accounts were

admissible, Mincey’s affidavit would still be irrelevant for several reasons.
                                                –9–
       First, the disputed funds are in the survivorship account that Father opened in October

2014, roughly eight months after the February 6, 2014 Trust agreement amendment and

restatement. It is Father’s intent at the later point in time and after the ranch was sold and related

funds were ultimately deposited in that account that is relevant. Even assuming the truth of what

Mincey said, after signing the February 6th Trust agreement Father was free to change his mind

about what to do with the note and sale proceeds and to deposit those funds in the then existing

survivorship account. Moon, 230 S.W.3d at 806. Father was also free to transfer those remaining

funds to the later survivorship account if he wanted to. Id. And there is no evidence that Father

and Mincey communicated with each other during the intervening eight months following

February 6th.

       Second, the undisputed facts are that Father was familiar with survivorship accounts and

had been using one, with Dan as the sole surviving party, as his primary operating account since

2000. So Mincey’s affidavit suggests no inference that Father did not know and appreciate what

he was doing when he created and deposited funds into the survivorship accounts.

       Third, there is no evidence that a Trust bank account into which the sale and note proceeds

could have been deposited existed in March 2014 when the ranch sold.

       Fourth, there is no argument or evidence that Father lacked capacity when he created that

survivorship account or that Dan exercised undue influence over Father at that or any other time.

Nor did Mary Ann and Jay offer any other argument or evidence challenging the 2014 survivorship

account’s validity, which account passes outside of probate. See TEX. EST. CODE §§ 113.151,

113.158.

       Fifth, there is no evidence suggesting that the proceeds from the equipment and livestock

(or any other assets) were legally required to go in the Trust.




                                                –10–
           Sixth, whether Father’s estate planning lawyer knew that Father had a survivorship account

does not tend to negate the possibility that Father later decided to use the unquestionably existing

survivorship account to pass certain assets outside of probate. Likewise, that Father did not tell

Mincey when Father amended and restated the previously created (but apparently unfunded) Trust

that he might later put certain funds in his survivorship account is without consequence. Neither

statement has probative value as to whether Dan owed and breached a fiduciary duty in connection

with assets for which there is no evidence that they were (i) actually conveyed to the Trust or (ii)

deposited in an existing Trust bank account.

           Therefore, the Mincey affidavit does not tend to support an inference that Father lacked the

intent to create and fund the 2014 survivorship account exactly as Father did. Accordingly, we

conclude that the trial court did not abuse its discretion in excluding the complained-of paragraphs

in the Mincey affidavit, and we resolve Mary Ann and Jay’s second issue against them.

C.         First Issue (Breach): Is there a fact issue regarding Mary Ann and Jay’s fiduciary
           breach claim?

           No, because this record does not contain evidence showing that Dan breached any co-

trustee’s fiduciary duties regarding the funds at issue either because the record does not show that

(i) these funds were Trust property or (ii) Dan breached any fiduciary duty regarding the handling

of these funds if they were.

           1.         Standard of Review

           Dan’s summary judgment motion argues that there is no evidence that he breached a

fiduciary duty owed to Mary Ann and Jay regarding the disputed sums.9 Rule 166a (i) provides

that a party “may move for summary judgment on the ground that there is no evidence of one or

more essential elements of a claim or defense on which an adverse party would have the burden


      9
        Dan’s motion also argues that there is no evidence that Father “ever intended” for the disputed funds to be Trust Property. But as discussed
in part II(B) above that is not the relevant issue. The relevant issue is whether Dan owed and somehow breached fiduciary duties to Mary Ann and
Jay when Father ultimately decided to deposit the disputed funds in survivorship accounts designating only Jay as the surviving party.

                                                                      –11–
of proof at trial.” We review a no-evidence summary judgment under the same legal sufficiency

standard used to review a directed verdict. See TEX. R. CIV. P. 166a(i); Flood v. Katz, 294 S.W.3d

756, 762 (Tex. App.—Dallas 2009, pet. denied). Thus, we must determine whether the nonmovant

produced more than a scintilla of probative evidence to raise a fact issue on the challenged

elements. See Flood, 294 S.W.3d at 762.

       When analyzing a no-evidence summary judgment, “we examine the entire record in the

light most favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts against the motion.” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam)

(quoting City of Keller, 168 S.W.3d at 823).

       A no-evidence summary judgment is improperly granted if the nonmovant presented more

than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a scintilla of evidence exists when the

evidence rises to a level that would enable reasonable, fair-minded persons to differ in their

conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more

than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983)).

       However, Dan supported his motion with his own affidavit and its attached exhibits.

Furthermore, his motion argued that:

       The other reasons [in addition to a lack of standing] why the claims of Mary Ann
       and Jay’s Estate should be extinguished by summary judgment is because the only
       evidence that exists regarding such claims supports the fact that [Father’s]
       arranging for the deposit of the livestock and equipment sales proceeds into the
       survivorship bank account created at Northern Trust was done at his direction and
       in complete accord with his wishes.

       This ground, together with its related evidence and argument, closely resembles a

traditional summary judgment motion. Furthermore, a fiduciary, like a co-trustee, has the burden
                                               –12–
to establish the fairness of his or her transactions with fiduciary property. See Int’l Bankers Life

Ins. Co. v. Holloway, 368 S.W.2d 567, 576 (Tex. 1963).

       When we review a traditional summary judgment in favor of a defendant, we determine

whether the defendant conclusively disproved an element of the plaintiff’s claim or conclusively

proved every element of an affirmative defense. We take evidence favorable to the nonmovant as

true, and we indulge every reasonable inference and resolve every doubt in the nonmovant’s favor.

A matter is conclusively established if ordinary minds could not differ as to the conclusion to be

drawn from the evidence. Alexander v. Wilmington Sav. Fund Society, 555 S.W.3d 297, 299 (Tex.

App.—Dallas 2018, no pet.). When, as in this case, the summary judgment does not specify the

grounds on which it was granted, we affirm if any ground advanced in the motion is meritorious.

See Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 922–23 (Tex. App.—Dallas 2009, no pet.).

       On this record, we conclude that Dan’s affidavit established prima facially that he did not

breach any fiduciary duties regarding the ranch sale proceeds or any other assets that belonged to

the Trust. Accordingly, our analysis is the same regardless of whether Dan’s summary judgment

motion is properly classified as a no evidence or a traditional summary judgment motion: Did

Mary Ann and Jay adduce evidence sufficient to raise a genuine issue of material fact regarding

whether Dan breached a fiduciary duty in connection with the disputed funds?

       Based on this record, we conclude that they did not carry that burden either because they

adduced no evidence that the disputed funds were ever actually Trust property or, if they were,

that Dan breached a fiduciary duty regarding those funds.

       2.      Breach of Fiduciary Duty

       Jay and Mary Ann argue that Dan wrongfully retained Trust funds and co-mingled Trust

funds with his own. We are not persuaded by these arguments.




                                               –13–
       Generally, the elements of a fiduciary breach claim are: (i) the existence of a fiduciary

duty; (ii) breach of the duty, (iii) causation, and (iv) damages. First United Pentecostal Church v.

Parker, 514 S.W.3d 214, 220 (Tex. 2014). Trustees owe beneficiaries certain fiduciary duties.

See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996).

       As previously discussed, however, there is no evidence that ranch notes or the livestock

and equipment or their related proceeds were required to be placed in the Trust. Indeed, there is

no evidence that those assets were ever actually conveyed to the Trust such that Dan could have

owed Mary Ann and Jay fiduciary duties regarding them. Nor is there evidence that those assets

were in a non-survivorship account when Father died.

       Furthermore, the evidence shows that Father created the first survivorship account with

Dan as the sole surviving party long before Father created the Trust. And after amending and

restating the Trust agreement, Father later created the second survivorship account, again with Dan

as the sole surviving party. There is no evidence that Dan had anything improper to do with

establishing those accounts. The evidence also establishes that Father used the survivorship

account during his lifetime to pay debts and living expenses. And the only evidence on the topic

is that Father, not Dan, decided the sale proceeds would be placed in the survivorship account.

       In short, the only evidence on this record is that, in fact, the sale proceeds, and hence, the

survivorship account funds were not Trust property. See In re Harden, No.02-04-122-CV, 2004

WL 1597631, at *3 (Tex. App.—Fort Worth 2004, orig. proceeding) (survivorship account funds

not part of probate estate for purpose of determining administrator’s fiduciary obligations); Punts

v. Wilson, 137 S.W.3d 889, 892 (Tex. App.—Texarkana 2004, no pet.) (P.O.D. accounts payee

and trustee did not breach fiduciary duty to residuary estate beneficiary by taking possession of

account funds that were not included in the estate).




                                               –14–
       Moreover, the Trust was a revocable trust. Father as settlor and co-trustee had the power

to revoke the Trust and was the sole beneficiary of the Trust while alive. See TEX. PROP. CODE §

112.051. Father was free to fund the Trust and dispose of its property as he saw fit. Moon, 230

S.W.3d at 806.

       Furthermore, Dan, as co-trustee of a revocable trust, owed his fiduciary duty to Father

while Father was alive. The general rule is that:

       [T]he duties of a trustee of a revocable trust are owed exclusively to the settlor . . .
       the rights of non-settlor beneficiaries are generally subject to the control of the
       settlor. Thus, as a general rule, the trustee cannot be held to account by other
       beneficiaries for its administration of a revocable trust during the settlor’s lifetime.

Mayfield v. Peek, 546 S.W.3d 253, 262 (Tex. App.—El Paso 2017, no pet.) (quoting George G.

Bogert, Alan Newman, THE LAW OF TRUSTS AND TRUSTEES §964 (3d. ed. 2010).

       Dan was co-trustee of the Trust during Father’s lifetime and ceased being a trustee when

Father died. There is no evidence that he misappropriated or did anything with Trust property

during his tenure as trustee. The uncontroverted evidence is that, while a co-trustee, Dan also

made no decisions about the expenditure of funds from the survivorship account, nor did he claim

entitlement to any funds in that account. Instead, he helped Father pay his living expenses from

the survivorship account as Father directed. It was not until Father died and Dan was no longer a

trustee that he claimed the $216,000 in the account for which he was the named the surviving

party. Sums remaining in a survivorship account after the death of one of the parties belong to the

surviving party. See TEX. ESTATES. CODE § 113.151.

       The argument that Dan co-mingled Trust property with his own likewise fails for the same

reasons.




                                                –15–
                                     III. CONCLUSION

      Having resolved all of Jay and Mary Ann’s issues against them, we affirm the trial court’s

judgment.




                                                /Bill Whitehill/
                                                BILL WHITEHILL
                                                JUSTICE




180704F.P05




                                            –16–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE ESTATE OF JOHN M. LITTLE,                    On Appeal from the Probate Court No. 1,
 JR., DECEASED                                       Dallas County, Texas
                                                     Trial Court Cause No. PR-15-03606-1.
 No. 05-18-00704-CV                                  Opinion delivered by Justice Whitehill.
                                                     Justices Partida-Kipness and Pedersen, III
                                                     participating.


     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

      It is ORDERED that appellee DAN LITTLE
recover his costs of this appeal from appellants MARY ANN TATUM and JOHN LITTLE.


Judgment entered August 20, 2019.




                                              –17–
