Dutcher v. Dutcher-Phipps Crane & Rigging, Inc., 510 S.W.3d 592 (Tex. App.—El Paso 2016, pet. denied).




Husband died owning shares of stock issued to him individually. Wife claimed the stock passed to her under the residuary clause of Husband’s will. However, Children asserted that the shares passed to them as beneficiaries of trusts claiming that due to a mistake, the shares were issued to him personally rather than in his capacity as the trustee of the trusts. The trial court agreed with Children.


The appellate court affirmed. The court explained that merely because the shares did not indicate that Husband held them in his capacity as a trustee did not mean that the facts and circumstances could not show that he actually held them in a representative capacity. The court carefully examined written documents which bolstered Children’s claim that the shares were supposed to have been issued to Husband in his capacity as a trustee. For example, Husband amended and restated the trusts after the alleged transfer. There would have been no reason to amend the trusts if the trusts were not receiving the shares as new trust property.


Moral:  Property held in a seemingly personal capacity can later be shown to be held in the capacity as a trustee if there are sufficient facts and circumstances showing that the property was actually intended to be held in a representative capacity.