In In re Estate of Moore, a decedent executed a will that provided that the residuary of his estate would be held in trust for his mother, and such trust would terminate on her death with the assets then passing to certain charitable remainder beneficiaries. No. 05-18-00019-CV, 2019 Tex. App. LEXIS 3871 (Tex. App.—Dallas May 14, 2019, no pet. history). The decedent’s mother predeceased him. The decedent’s sole heir then alleged that the trust failed because the sole beneficiary predeceased the decedent and that she should receive the assets. The remainder beneficiaries of the trust alleged that the trust did not fail and that they should receive the assets. The trial court ruled for the charities, and the heir appealed.

The court of appeals first discussed construing a will:

Our primary “objective in construing a will is to discern and effectuate the testat[or]’s intent as reflected in the instrument as a whole.” In doing so, we do not focus on what the testator may have meant to write; rather, we focus on the meaning of the words the testator actually used. We must, however, construe the instrument as a whole and seek to harmonize any apparent conflicts or inconsistencies in the language. Moreover, we should avoid, whenever possible, a construction that results in partial intestacy. Indeed, “[t]he mere making of a will is evidence that the testator had no intent to die intestate and creates a presumption that the testator intended to dispose of his entire estate, and that he did not intend to die intestate as to the whole or any part of his property.” Where, as here, a “will contains a residuary clause, the presumption against intestacy is especially strong.”

Id. The court stated that the appellant’s challenge to the trial court’s construction was based on two arguments: (1) there were no living beneficiaries of the trust at the time of the decedent’s death; and (2) the trust’s creation was made expressly contingent on the decedent’s mother surviving him. The court disagreed with both arguments. The court noted that a trust beneficiary is “a person for whose benefit property is held in trust, regardless of the nature of the interest.” The court stated that the trust provided for two types of property interests—“a life estate for Moore’s mother and remainder interests for the other named individuals and entities.” Id. Regarding the first argument, the court concluded:

Here, Section IV manifests Moore’s intent to create a trust for the benefit of multiple beneficiaries, including his mother and the Arkansas Entities. His mother was intended to be a life beneficiary of the residuary estate, to the extent she survived Moore, and the Arkansas Entities were intended to be beneficiaries with vested interests in the remainder of the residuary estate held in trust following the death of Moore’s mother. Thus, even though the trust’s life beneficiary (Moore’s mother) was no longer living at the time the conveyance became operative, there were other named remainder beneficiaries sufficient to prevent the trust from failing.

Id. Regarding the second argument, the court held:

Section IV provides: “My residuary estate shall pass and vest in the Trustee hereinafter named, IN TRUST, in the following manner . . . .” This statement is not qualified by a condition precedent; rather, it is the subsequent statement creating Moore’s mother’s interest in the trust that is qualified by a condition precedent: “My residuary estate shall be held as a trust for the benefit of my mother, . . . if she is surviving at the time of my death[.]” Because Moore’s mother did not survive him, the condition precedent to her interest was not satisfied. Thus, her interest in the trust terminated, and the remainder interests either became present interests or became closer to present interests.

Id. The court concluded:

The will explains what must happen upon the death of Moore’s mother: “The trust herein created shall terminate at the death of my said mother, . . . and the trust estate shall be distributed as follows . . . .” On Moore’s death, the residuary estate passed into a trust for the benefit of its life and remainder beneficiaries. Because the life beneficiary was no longer living, the trust immediately terminated according to its own terms, leaving the corpus to be distributed to the remainder beneficiaries. The probate court did not err by concluding that Moore’s residuary estate passed into a valid trust and that it should be distributed according to Section IV.C.4 of the will.


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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…

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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 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