dissenting.
I respectfully dissent. It is fundamental for the creation of a trust that the legal estate must be vested in the trustee and the equitable estate vested in the beneficiary. Cutrer v. Cutrer, 334 S.W.2d 599, 605 (Tex.Civ.App.—San Antonio 1960) aff'd, 162 Tex. 166, 345 S.W.2d 513 (1961). This will contains no language expressing the testator’s intention that the legal estate vest in the executors or that a trust be created. I would reverse the judgment of the courts below.
Paragraphs IV and V evidence the testator’s intent to devise to his wife a life estate in all the rest and residue of his estate, with the remainder in fee simple to Perfect Union Lodge. The majority relies on the last two clauses in paragraph VII to hold that a trust was created because the testator granted the executors powers under the Texas Trust Act during the life of his wife. However, no transfer of the legal estate to the executors was effectuated by these administrative provisions. I would hold that the will’s dispositive provisions, which state that the nature and quantum of the estate vested in the wife, should control over the will’s purely administrative provisions establishing the executors’ powers and duties.
This case is controlled by the ruling in Beckham v. Beckham, 227 S.W. 940 (Tex.Comm’n App.1921, judgm’t adopted) in which the testator made an absolute bequest of all of her property to her children, followed by a provision stating:
I hereby authorize and empower my said executor to take possession of any and all property belonging to my estate; to sell and convey same; to invest any money that may come into his hands in such way as he shall deem proper; and to execute all the deeds of conveyance, ac-quittances and receipts necessary and proper to be executed in order to carry out the object of this instrument.
To determine whether the testator intended to create a trust empowering the executor to administer the estate until the children reached their majority, the court considered the following: (1) that the will expressly stated, “my said executor”; (2) that the additional powers conferred were not inconsistent with the duties of the executor; and, (3) that there was no language indicating an intent to create a trust. The court held that no trust was created because no clear intent appeared from the will. See also Time Securities v. West, 324 S.W.2d 583, 585-86 (Tex.Civ.App.—San Antonio 1959, writ ref’d n.r.e.).
This is a self-made will of an attorney who practiced law in Texas for over 50 years and it is apparent by his reference to the Texas Trust Act that he was cognizant of the requisites for the creation of a testamentary trust, but he specifically excluded designating the executors as trustees. It is logical to assume that the terms used in Lumpkin’s will were used correctly and intentionally unless the context of the will showed a clear intention to the contrary. Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803, 806 (1951).
The majority erroneously relies on cases inapposite to the instant case, McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412 (1887) and Gonzalez v. Gonzalez, 457 S.W.2d 440 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n.r.e.), which held that the legal estate was separated from the equitable estate. In McMurray, the testator devised the residue of her estate to her husband and provided that he would have full control and the right to use and dispose of the estate as he desired, but any property remaining at the husband’s death would pass to the testator’s nieces. The court held that the testator’s will established a trust in which her husband was trustee for the benefit of the remainders, her nieces. The legal estate had already vested in the husband and the equitable estate was vested in the beneficiaries subject to being defeated by the husband’s right to dispose of or consume the property during his lifetime, thus allowing a trust to come into existence. Compared with the instant case, the legal estate never vested in the executors, nor was there evidence of this intent. The legal estate was vested in Mrs. Lumpkin. Similarly, in Gonzalez, the testator devised his estate to his wife and seven minor children in eight equal parts. The court found that the obligations imposed upon the wife to maintain and improve the property created a trust for the benefit of the wife and children, with the wife as trustee. As in McMurray, the legal estate had already vested in the wife before she was denominated trustee.
The majority fallaciously relies on Dulin v. Moore, 96 Tex. 135, 70 S.W. 742 (1902); and Paton v. Baugh, 265 S.W. 250 (Tex. *223Civ.App. — Dallas 1924, no writ) because the wills: (1) create express trusts; (2) appoint named trustees to hold the property as trustees; and (3) vest legal title in the trustee. Additionally, in Heironimus v. Tate, 355 S.W.2d 76 (Tex.Civ.App.—Austin 1962, writ ref’d n.r.e.), the court held that a trust was created because the will vested the legal estate in the executors and gave them full power of attorney to control and distribute the trust. Finally, Najvar v. Vasek, 564 S.W.2d 202 (Tex.Civ.App.—Corpus Christi 1978, writ ref d n.r.e.) is not in point because the court held that no trust was created.
In conclusion, this court should follow Beckham and hold that the will of A.H. Lumpkin did not vest the legal estate in the residue of his property in his executors. The purely administrative powers created in the executors authorized an independent administration, thereby obviating probate formalities and were designed to aid in the orderly distribution of the residuary estate. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888, 892 (1948).
I would hold that the will of A.H. Lump-kin did not authorize the appointment of the executors to serve as trustees of his estate and would thus reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings.
PHILLIPS, C.J., and WALLACE, J., join in this dissent.