                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-302-CV


ESTATE OF ELIZABETH L. WEBB,
DECEASED

                                          ------------

              FROM PROBATE COURT NO. 1 OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

      This appeal arises out of a settlement agreement between the

beneficiaries under the will of Elizabeth L. Webb and the independent executor

of the estate of Harley D. Webb, Jr., Elizabeth’s husband. Appellant Richard

L. Page, trustee of the Harley D. Webb, Jr. Family Trust, appeals from the trial

court’s striking of his intervention in the cause of action brought by Appellees

Marsha Webb and David Webb, Elizabeth’s children (“the Webb children”),

against Appellee Hershel R. Payne as independent executor of the estate of


      1
          … See T EX. R. A PP. P. 47.4.
Harley. Appellee Catholic Charities Diocese of Fort Worth, Inc. (“the Diocese“)

had intervened and was also a party to the underlying lawsuit. Because we

hold that the trial court did not abuse its discretion by striking Page’s plea in

intervention, we affirm the trial court’s order.

                        F ACTS AND P ROCEDURAL H ISTORY

      In 1982, Elizabeth executed a will in which she named Harley as

independent executor of her estate. The will created the Elizabeth Webb Family

Trust (“the Family Trust”), to which she bequeathed the maximum amount that

would result in no federal estate tax payable by her estate. Harley, as executor,

was given the power and sole discretion to satisfy the devise and select which

assets of Elizabeth’s estate would be used to fund the trust. The will named

Continental National Bank as trustee and directed the bank to pay to Harley, as

long as he was living, such part of the income or corpus of the trust that the

trustee deemed proper for Harley’s support and the support of the W ebb

children.   The will gave Harley the power during his lifetime to “consume,

invade, or appropriate the corpus of the trust for his support,” but that power

had to be “exercised by written instrument, executed and acknowledge by him,

and delivered, during his lifetime, to [the] trustee.” The will further provided

that on Harley’s death, the property held in the Family Trust would pass to the

trustee to hold in a separate trust for the benefit of Elizabeth’s descendants.

                                        2
Upon the death of the last trust beneficiary, the corpus of the trust would pass

to the Diocese.

      Elizabeth Webb died on May 10, 1993. Harley and the Webb children

survived her. Elizabeth’s will was admitted to probate. Harley died in February

2005, apparently without ever funding the trust.        According to Appellees,

Chase Bank, successor in interest to Continental National Bank, never accepted

the Family Trust and there was no functioning trustee under the will. Harley

had executed a will in 2002; the will created the Harley D. W ebb, Jr. Family

Trust (“Harley’s trust”), to be funded by his residuary estate. The will named

Page as trustee of the Harley trust.

      On December 21, 2005, the Webb children filed the underlying lawsuit

against Payne, as independent executor of Harley’s estate, seeking to have the

Family Trust funded and to recover damages for Harley’s failure to fund the

trust. The Diocese intervened in May 2006. Trial was set for the week of

January 23, 2007, but the parties executed a settlement agreement prior to

trial. Because the settlement required the modification of the Family Trust, the

parties filed an original petition seeking modification of the trust under section

112.054 of the Texas Trust Code and approval of the settlement agreement.

      A hearing on the modification petition was scheduled for January 25,

2007. On that morning, Page filed a plea in intervention. The Webb children

                                        3
and the Diocese filed motions to strike his intervention on multiple grounds.

They argued that Page had no justiciable interest in the suit; that intervention

would serve only to complicate the case by an excessive multiplication of the

issues; that the intervention was untimely; that Page was estopped from

intervening by the doctrine of quasi-estoppel; and that the attempted

intervention was nothing more than Page’s attempt to prevent the Webb

children from receiving support from the Family Trust.        In response, Page

essentially alleged three claims of a justiciable interest justifying his

intervention.   First, he alleged that in his plea in intervention he had filed

declaratory judgment claims under section 37.005 of the Texas Civil Practice

and Remedies Code and that the statute gave him “an absolute right” to assert

such claims. Second, Page alleged that the agreement attempted to prevent

him from seeking redress against Payne for any breach by Payne of his duties

as executor of Harley’s estate. Third, he claimed that the settlement agreement

would “necessarily diminish the assets that ultimately would be transferred to

Page as trustee.”

      The trial court granted the motions to strike without stating in its order

the grounds on which it based its ruling; however, prior to entering the order,

the court had sent a letter to the parties stating that it was of the opinion that




                                        4
under Texas Trust Code section 115.011(b), Page was not a necessary party.

The court also severed Page’s cross-claims. This appeal followed.

                                    S TANDARD OF R EVIEW

      We review for an abuse of discretion a trial court’s determination on a

motion to strike a plea in intervention. 2 To determine whether a trial court

abused its discretion, we must decide whether the trial court acted without

reference to any guiding rules or principles; in other words, we must decide

whether the act was arbitrary or unreasonable.3 Merely because a trial court

may decide a matter within its discretion in a different manner than an appellate

court would in a similar circumstance does not demonstrate that an abuse of

discretion has occurred.4

                                         A NALYSIS

      Rule 60 of the Texas Rules of Civil Procedure provides that “[a]ny party

may intervene by filing a pleading, subject to being stricken out by the court for

sufficient cause on the motion of any party.” 5 When a motion to strike the


      2
       … Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70
(Tex. App.—Fort Worth 2003, no pet.).
      3
       … Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
      4
          … Id.
      5
          … T EX. R. C IV. P. 60.

                                             5
intervention is filed, “the burden shifts to the intervenor to show a justiciable

interest in the lawsuit.” 6 This interest must be more than “a mere contingent

or remote interest.” 7   The intervenor has a justiciable interest in a lawsuit

“when his interests will be affected by the litigation.” 8

      In Page’s first issue, he argues that the appellate record establishes a

prima facie case for his standing, and thus, the trial court abused its discretion

if it granted the Webb children’s and the Diocese’s motions to strike based on

standing.     In his second issue, he argues that the trial court abused its

discretion by striking his motion to intervene.     Page asserts that he has a

justiciable interest in the outcome of this action (and therefore has standing) in

that (1) the proposed settlement agreement threatens injury to him, (2) the risk

of threatened injury is traceable to the pending action, and (3) allowing him to

intervene will allow his objections to be redressed. He claims that the proposed

settlement agreement threatens injury to him because the underlying lawsuit

attempts to recover damages from Harley’s estate and provides that assets of

Harley’s estate will be transferred to Elizabeth’s estate; Payne will be released

from liability under the settlement agreement but Page will not; and Payne is


      6
          … Law Offices of Windle Turley, 109 S.W.3d at 70.
      7
          … Id.
      8
          … Id.

                                        6
“buying his way out of a dispute at the expense of Page.” He contends that

allowing him to intervene would allow his concern—that the estate assets that

he owns as trustee will be dissipated—to be addressed. He also claims that

despite payment by Harley’s estate, “the trust [presumably Harley’s trust] will

continue to be subject to potential litigation” with the Webb children.

      Page makes only one argument on appeal that was also raised in the trial

court with respect to having a justiciable interest:    that the funding of the

settlement agreement will diminish the assets that would ultimately be available

to be distributed to Harley’s trust. We hold that this interest does not rise to

the level of a justiciable interest, and even if it does, the trial court did not

abuse its discretion by striking Page’s intervention.

      Page does not argue that having less property transferred to the trust

threatens any harm to him other than the fact that Harley’s trust will have

fewer assets. Page acknowledged to the trial court that executors usually have

the right to pay claims asserted against an estate.      And this “harm” was

provided for and authorized by the trust instrument. Harley’s will expressly

directs the executor, Payne, to pay “all claims which are in the opinion of

[Payne] legally enforceable against [Harley’s estate]” and to do so “out of any

available assets or the income from those assets” of the residuary estate. The

executor is also authorized “to select and value assets to fund the trusts

                                       7
created by [Harley’s] will, and to make other decisions concerning the assets

and administration of [Harley’s] estate.”      Finally, the will authorizes the

executor “to distribute any part or all of [Harley’s] estate in satisfaction or

partial satisfaction of any gift, including any gift to a trustee, at such time as

[the executor] deems advisable.” Thus, under the terms of Harley’s will, Payne

is permitted to settle any claims against the estate out of assets devised to

Harley’s trust. Harley’s will therefore necessarily contemplates that the amount

of property devised to the trust would be diminished by payment by the

executor of claims against the estate and that the trustee would not have

management of trust property until after the resolution of these claims. Page

as trustee of Harley’s trust has no authority or right under the trust instrument

to complain about Payne’s using any particular property in the settlement of the

underlying claim or about Payne’s settlement of claims that he believes are

legally enforceable against Harley’s estate. 9 Because Page has not shown that

he has an interest affected by this litigation that is more than merely contingent

or remote, we hold that Page did not assert a justiciable interest in this case.




      9
       … See T EX. P ROP. C ODE A NN. § 113.001 (Vernon 2007) (providing that
the instrument creating a trust may limit the power a trustee would otherwise
have by statute).

                                        8
      Even if Page had asserted a justiciable interest, the trial court nevertheless

did not abuse its discretion in striking his intervention. Even if an intervenor has

a justiciable interest, the trial court has considerable discretion in determining

whether the plea in intervention should be struck. 10 It is, however, an abuse

of discretion to strike a plea in intervention if (1) “the intervenor could have

brought the same action, or any part thereof, in his own name”; “(2) the

intervention will not complicate the case by an excessive multiplication of the

issues, and (3) the intervention is almost essential to effectively protect the

intervenor’s interest.” 11 Page cannot show that he meets the first or third

prong of this standard, and he has not demonstrated that the trial court

otherwise abused its discretion by striking his intervention.

      Section 112.054 of the Texas Trust Code allows for the modification or

termination of a trust, providing that on the petition of a trustee or a

beneficiary, a court may order, among other things, “that the trustee be

changed, that the terms of the trust be modified, [and] that the trustee be . . .

permitted to do acts that are not authorized or that are forbidden by the terms




      10
       … Id.; see also Pettus v. Pettus, 237 S.W.3d 405, 420 (Tex. App.—Fort
Worth 2007, pet. denied).
      11
       … Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,
657 (Tex. 1990); see also Pettus, 237 S.W.3d at 420.

                                         9
of the trust.” 12 Page is not a beneficiary or trustee of the Family Trust. And

Page was neither a necessary party to a suit under the Texas Trust Code asking

a court to modify or construe a trust nor an “interested person” who could

bring such an action or who was entitled to be heard in a probate court

proceeding concerning Elizabeth’s estate.13 Furthermore, “notwithstanding the




      12
           … T EX. P ROP. C ODE A NN. § 112.054(a) (Vernon 2007).
      13
         … See T EX. P ROP. C ODE A NN. § 115.001 (Vernon Supp. 2008) (stating
that a district court has jurisdiction over all proceedings by or against a trustee
and all proceedings concerning trusts, and this jurisdiction is exclusive except
for jurisdiction conferred on other courts, including a statutory probate court),
§ 115.011 (Vernon 2007) (stating that an “interested person” may bring an
action under section 115.001, but the only necessary parties to such an action
are beneficiaries, persons receiving distributions from the trust, and the trustee,
if the trustee is serving), § 111.004(7) (Vernon 2007 & Supp. 2008) (defining
“interested person” as “a trustee, beneficiary, or any other person having an
interest in or a claim against the trust or any person who is affected by the
administration of the trust”); Lemke v. Lemke, 929 S.W.2d 662, 664 (Tex.
App.—Fort Worth 1996, writ denied) (reviewing a trial court’s division of a
marital estate and holding that a wife had no standing to challenge a trust
where she was not an “interested person” in a trust in that she was not the
trustee or a beneficiary, had no claim or interest in the trust, was not affected
by its administration in any way, and did not stand to inherit any of the trust
assets upon the death of the trust beneficiary); see also T EX. P ROP. C ODE A NN.
§ 10 (Vernon 2003) (stating that “[a]ny person interested in an estate may, at
any time before any issue in any proceeding is decided upon by the court, file
opposition thereto in writing and shall be entitled . . . to be heard upon such
opposition”); § 3(r) (Vernon 2003 & Supp. 2008) (defining “interested persons”
as “heirs, devisees, spouses, creditors, or any others having a property right in,
or claim against, the estate being administered”).

                                        10
provisions in a will, its beneficiaries may agree among themselves on a different

division of the property bequeathed to them.” 14

      Nor could Page have brought claims against Payne as representative of

Harley’s estate for failure to fund the Family Trust, the claims that the

settlement agreement resolves. Page was not named in Elizabeth’s will as an

executor, a trustee, a beneficiary, or in any other capacity.     His status as

named trustee of Harley’s trust gave him an interest in Elizabeth’s estate only

as to the property left outright to Harley and subsequently bequeathed to Page

as trustee of the Harley trust. Had Harley properly funded the Family Trust

under Elizabeth’s will, the property placed in it would not have become part of

his estate when he died because under the terms of Elizabeth’s will, the assets

of the Family Trust passed to Harley only for his lifetime. When he died, any

remaining assets of the Family Trust passed to the trustee to hold in a separate

trust for the benefit of Elizabeth’s descendants—the Webb children—and not

into Harley trust’s (and thus not to Page as trustee). Thus, Page could not have

brought this action in his own name; having suffered no injury from Harley’s

failure to fund the Family Trust, he would have had no standing to bring such




      14
       … Shepherd v. Ledford, 926 S.W.2d 405, 414 (Tex. App.—Fort Worth
1996), aff’d, 962 S.W.2d 28 (Tex. 1998); see also Wade v. Wade, 140 Tex.
339, 167 S.W.2d 1008, 1010 (1943).

                                       11
a claim.15   Further, Payne, as executor of Harley’s estate, represented the

estate’s interest in the suit and the settlement.16

      Further, Page has not shown that his intervention is almost essential to

effectively protect his interest because, as discussed above, Harley’s will gives

Payne as executor the authority and discretion to use assets of Harley’s

residuary estate (which would otherwise ultimately be distributed to Harley’s

trust) to pay claims against Harley’s estate.         Thus, to the extent that any

property of Elizabeth’s estate became part of Harley’s residuary estate, under

the terms of Harley’s will, Payne, not Page, has the discretion to settle claims

using any property in Harley’s residuary estate. Accordingly, we hold that the

trial court did not abuse its discretion by striking Page’s plea in intervention.

Because we hold that Page did not assert a justiciable interest in this

controversy and that, even if Page had asserted a justiciable interest, the trial




      15
       … Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (stating that
standing requires a distinct injury to the plaintiff); see also T EX. P ROB. C ODE A NN.
§ 10 (allowing claims by “interested persons”); T EX. P ROP. C ODE A NN. §
115.011 (same).
      16
        … See T EX. P ROB. C ODE A NN. § 233A (Vernon 2003) (stating that an
executor or administrator of an estate, as personal representative of the estate,
may bring suit “for the recovery of personal property, debts, or damages” owed
the estate).

                                          12
court did not abuse its discretion by striking his intervention, we overrule Page’s

two issues.

                                   C ONCLUSION

      Having overruled both of Page’s issues, we affirm the trial court’s order.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE


PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DELIVERED: August 29, 2008




                                        13
