Eisen v. CAPITAL ONE, NATIONAL ASSOCIATION

DAVID GAULTNEY, Justice,

dissenting.

The majority acknowledges that Suanne Eisen Lubin and Dan Eisen are remainder beneficiaries of the funds in the trust and holds that the term “beneficiary” in the trust document does not include them. I respectfully dissent.

A “beneficiary” is a “person for whose benefit property is held in trust, regardless of the nature of the interest.” Tex. PROp.Code Ann. § 111.004(2) (Vernon 2007). An “interest” is “any interest, whether legal or equitable or both, present or future, vested or contingent, defeasible or indefeasible.” Tex. PROp.Code Ann. § 111.004(6) (Vernon 2007). A “remainder beneficiary” is “a person entitled to the principal when an income interest ends.” Tex. PROp.Code Ann. § 116.002(11) (Vernon 2007). How a particular receipt or expenditure is treated may affect the respective interests of the income and remainder beneficiaries. Similarly, making discretionary payments out of the principal to an income *315beneficiary will affect the relative interests of the beneficiaries. In this case, the will provides the trustee with discretion to distribute the principal of this spendthrift trust to the income beneficiary (Elizabeth Eisen) as “necessary or desirable for [her] health, maintenance and support in order to maintain her in the standard of living to which she has become accustomed at the time of my death to the extent advisable in the Trustee’s discretion, considering the size of the trust estate and [Elizabeth’s] reasonably expected future needs ... throughout her lifetime.” The trust does not expressly state that Elizabeth, Suanne, or Dan may remove the trustee. The instrument says the “beneficiary” may do so under certain circumstances, which means all the beneficiaries must agree to change the trustee. It makes no difference that the trustor used the singular of “beneficiary.” We generally recognize that the singular includes the plural and the plural includes the singular unless expressly provided otherwise. See e.g. Holley v. Grigg, 65 S.W.3d 289, 294 (Tex.App.-Eastland 2001, no pet.). The trustor did not expressly provide otherwise, and his use of the term “beneficiary” includes Suanne and Dan by definition.

The will does not define beneficiary differently. The majority refers to the definition used in Article VI: “Each person for whom a separate trust is established under the provisions of this Article shall be referred to herein as the ‘beneficiary.’ ” Beneficiaries under Article VI receive trust property only in the event Suanne or Dan predecease Elizabeth.

Elizabeth is a beneficiary of the Article IV trust. So are Suanne and Dan. Because of their interests in the principal as granted by the trust, and the restriction on the trustee’s use of the principal for Elizabeth’s “health, maintenance and support,” the trust property is not solely for Elizabeth’s use and enjoyment during her life. If the trustor had intended her to be the sole beneficiary of the trust, he would not have provided Suanne and Dan remainder interests in the trust property, and he need not have provided for the possibility of Article VI trusts.

The majority states the testator could not have intended the meaning assigned to “beneficiary” in section 116.002, because section 116.002 did not exist at the time he executed his will, and because the definitions of “beneficiary” and “remainder beneficiary” only apply “when those terms are used” in Chapter 116. See Tex. PROp.Code Ann. § 116.002 (Vernon 2007). Section 116.002 did not change the law concerning whether a remainder beneficiary is a beneficiary. See generally Tex. PROp.Code Ann. § 111.004(2), (6). The will states that the trustee “shall have all the rights, powers, duties and discretions conferred upon my Executor herein and conferred upon trustees by the Texas Trust Code, as amended to the date of execution of this will, provided that in the event further amendments may be made to such Code after the date of execution of the will, such amendments may increase, but they shall not diminish, curtail or restrict the powers herein conferred and as now conferred on the Trustee under the Texas Trust Code.” The will anticipated that the Trust Code and the amendments would be consulted in construing the rights, powers, duties, and dis-cretions of the trustee with respect to the beneficiaries.

The Trust Code in existence at the time of the execution of the will provided in part that the trustee shall administer the trust with due regard for the interest of the income beneficiaries and remaindermen, and defined “beneficiary” as a “person for whose benefit property is held in trust, regardless of the nature of the interest.”4 *316Suanne and Dan are beneficiaries of the trust and must be included in any decision to replace the trustee chosen by the trustor. We should affirm the judgment of the trial court.

. See Act of May 27, 1983, 68th Leg., R.S., ch. 567, § 2, sec. 111.004(2),(6), 1983 Tex. Gen. *316Laws 3269, 3333-34; Act of May 27, 1983, 68th Leg., R.S., ch. 567, § 2, sec. 113.101, 1983 Tex. Gen. Laws 3269, 3360.