In Andresakis v. Modisett, the trustors signed trust agreements in 1976 and 1981, and each agreement created three trusts, one for their daughter, one for their son, and a third trust for their only grandchild, Andresakis. No. 07-16-00003-CV, 2017 Tex. App. LEXIS 42 (Tex. App.—Amarillo January 4, 2017, no pet. history). The agreements provided, however, for additional separate trusts benefiting “any grandchild subsequently born to or adopted by [their children] and who survives for a period of at least six (6) months.” Under the instruments, any such additional trust for a later-born or later-adopted grandchild of the trustors was to be funded by partitioning assets from the trust estate benefitting Andresakis, such that thereafter the trust estates benefitting each of the trustors’ grandchildren would have equal value. The son married in 1998 and later adopted his wife’s two children (the Modisetts), who were both over eighteen at the time of the adoption.

Andresakis sued the Modisetts and the trustees for a judgment declaring that the Modisetts were not beneficiaries of any trust under either trust agreement. The parties filed counter motions for summary judgment, and the trial court granted the Modisetts’ motion. The Modisetts then moved for a summary judgment declaring their trust interests vested when they were adopted. The trial court disagreed and in its final judgment fixed a vesting date six months later. Both sides filed notice of appeal.

The court of appeals affirmed both findings. The court of appeals first set forth the appropriate standards for interpreting trusts:

The construction of an unambiguous trust instrument is a question of law for the trial court. A trust instrument is construed to determine the intent of the settlor from the language of the four corners of the instrument. All terms are harmonized to give proper effect to each part of the instrument. The instrument should be construed, if possible, so that effect is given to all provisions and no provisions are rendered meaningless. Provided the language of the instrument unambiguously expresses the settlor’s intent, there is no need to construe the instrument because “it speaks for itself.” An instrument is ambiguous if its meaning is uncertain or reasonably susceptible to more than one meaning.

Id. Andresakis argued that the trustors intended the class of subsequently adopted children to consist only of children adopted before attaining majority. Andresakis also argued that his interpretation is supported by the provisions of the agreements empowering the trustees to make discretionary distributions to or for a grandchild in an amount “necessary or advisable for the health, support, education and maintenance” of the grandchild, and language requiring the trustees to consider, among other things, the ability of any person who is “legally obligated to support such beneficiary,” when making distributions. The appellate court disagreed with this argument:

We cannot agree that any language of the trust agreements indicates an intention of the trustors to limit adopted grandchild beneficiaries to those adopted as minors. We agree instead with the trial court that the agreements unambiguously express the contrary intention, that individuals who become grandchildren of the trustors by adoption are beneficiaries, “whenever adopted.” That the sentence containing the phrase, “whenever adopted,” specifically addresses the adoption of step-children further affirms its application to the Modisetts’ adoption by Kenneth Cailloux.


The court also affirmed the vesting finding by the trial court. The trust document stated that  the term “such grandchild” referred to an individual born to or adopted by either of the trustors’ children “and who survives for a period of at least six (6) months.” The language also instructed the trustees to “set apart” or “partition” assets to constitute the trust estate of a newly-created trust makes clear that the partition occurs only for the benefit of a grandchild who survives birth or adoption by at least six months. The court disagreed with the Modisetts’ argument that because the agreements vests the trust assets in the trustees without qualification, the Modisetts’ beneficial interest also was vested on the date of their adoption, subject to divestiture if they had not survived their adoption by six months. Rather, the court held that their interests vested six months after they were adopted.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law