In Hilderbran v. Tex. SW. Council, Inc., parties donated a ranch via a 1930 deed to trustees for the Boy Scouts. No. 04-22-00736-CV, 2024 Tex. App. LEXIS 4390 (Tex. App.—San Antonio June 26, 2024, no pet. history). In 1943, the then acting trustees deeded the ranch to a council. In 2022, successor trustees sued the council, alleging that the 1943 deed created a trust and that the council was the trustee. The successor trustees sought an accounting and other trust-related remedies. The trial court dismissed the suit, and the successor trustees appealed.

The court of appeals affirmed, holding that the 1943 deed did not create a trust:

“A trust may be created by . . . a property owner’s declaration that the owner holds the property as trustee for another person . . . .” “To create a trust by a written instrument, the beneficiary, the res, and the trust purpose must be identified.” But “[a] trust is created only if the settlor manifests an intention to create a trust.”

The Trustees argue the 1943 Deed creates an express trust because it designates a beneficiary, identifies the property, and describes the trust’s purpose. The beneficiaries are “several troops of Boy Scouts of America [in] the Southwest Texas Council.” The res is the “the 300 acres of land acquired under said conveyance, and all other properties subsequently acquired under said conveyance, and all other properties subsequently acquired in connection with and as part of such trust estate.” The trust’s purpose is to set aside property “for the use and benefit of the  several troops of Boy Scouts of America which are now under the jurisdiction of the Southwest Texas Council, Boy Scouts of America.”

But by “a careful and detailed examination of the [1943 Deed] in its entirety,” it is apparent that these descriptions of the beneficiaries, the trust estate, and the trust purpose are references to the 1930 Deed’s trust language. These references, read in context of the entire 1943 Deed, do not create a separate trust, nor do the additional paragraphs: AND WHEREAS; NOW, THEREFORE; Object and Purpose; and Should the Said Council.

Id. Therefore, because there was no intent to create a separate trust via the 1943 deed, the court affirmed the dismissal of the trust-related claims because no trust existed.

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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

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]
817.420.8223

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