(dissenting).
I respectfully dissent, because the summary judgment proofs show (1) that Dr. *268Clarence W. Lokey collected funds under the banner of the Methodist Church but did not report a large portion of those funds to his principal National Division, (2) that he used the money as settlor of the Lokey Trust, and (3) that the funds which Dr. Lokey says were restricted funds were commingled with National Division’s funds. According to Dr. Lokey, the amounts of the restricted funds are now incapable of ascertainment. Dr. Lokey’s own deposition testimony demonstrates the futility of a trial which has for its purpose an accounting to separate the admittedly commingled funds.
Dr. Lokey, according to his deposition admissions, was the agent of National Division. As such agent he owed fiduciary duties to his principal. See 1 Restatement (Second) of Agency § 13 (1958). As an agent, he had the duty to deal openly with and to make full disclosure to National Division, as well as to refrain from acquiring interests adverse to it. Kinzbach Tool Co., Inc. v. Corbett-Wallace Corporation, 138 Tex. 565, 160 S.W.2d 509 (1942). In addition, he had the duty to keep clear and accurate accounts. 2 A. Scott, The Law of Trusts § 172 (3d ed. 1967).
Prior to 1944, Dr. Lokey, a Methodist minister, served as District Superintendent for the Bryan District of the Texas Annual Conference. In the fall of that year, he was elected General Secretary of the Division of Home Missions, and he moved to New York City in that capacity. He moved back to Texas in the fall of 1949 to concentrate his efforts in the new mission work among Spanish people by serving as the Superintendent of the Spanish Speaking Missions for the Methodist Church. He continuously served as Superintendent from 1949 until his retirement on January 31, 1966. Although the title to one or more of the church agencies changed through the years, it is undisputed that the line of authority ran from the Board of Missions under which was the National Division followed by the Department of Spanish Speaking Missions.
National Division authorized Dr. Lokey to collect funds on its behalf and to make reports to it of all funds so collected for the Spanish Speaking Missions. His employment was full-time. National Division paid his salary, rent, travel and other expenses. He explained, “I was committed to enlist funds which people wanted to give specifically for particular things and see that they did the things that the giver wanted to do. That was the thing we were specifically authorized to do, and nothing beyond that.” He said the Spanish work was new mission work for which he was the first director. He said, “[Tjhey expected us to get out and enlist the interest of the people who lived in the neighborhood or in the jurisdiction . . ., and we were responsible for enlisting their interest, accepting their money and applying it as they had wanted.” These funds, according to Dr. Lokey, were to be collected and sent to National Division; the money would then be returned with additional money needed in the work. The funds collected for National Division, according to Dr. Lokey, were used for full or supplementary payment of salaries of Spanish speaking preachers, the payment of rent or the purchase of facilities in which to conduct services and a number of other special demands arising out of the mission work.
Dr. Lokey collected and reported some funds to National Division; but, commencing at some uncertain time, he also collected funds for the same Spanish work which he did not report and which he kept in a private account known only to himself and Bishop A. Frank Smith. When asked if he received moneys that were not reported to any agency of the Methodist Church, Dr. Lokey answered, “That’s right.” When asked if only he and his secretary knew about the $100,000 fund, he answered, “The secretary didn’t know anything about that either.” He said that nobody knew of the unreported collections except Bishop Smith, “no Anglo, no Latin.” He said, “[W]e *269didn’t feel that we were under any obligation to reveal to those folks what we were doing over and beyond what we were committed to do by the Division.” Dr. Lokey explained how he arrived at his ideas about his powers to make collections for the same work and not report them. He said the National Division “sent me down here to create”a new job which they didn’t know anything about that had never existed before. They had to give us the right to proceed.” This summary judgment proof shows conclusively that, while National Division authorized Dr. Lokey to make collections either in its name or in that of the Methodist Church, the Division expected him to report all such collections.
On January 4, 1963, Dr. Lokey wrote a $100,000 check payable to the Texas Methodist Foundation. He drew these funds from the account maintained at the Tyler Bank and Trust Company, Tyler, Texas, where National Division’s funds were on deposit. He, as the sole settlor and by use of those church funds, established the Augustine Kern Lokey and Clarence Walters Lokey Trust. The Texas Methodist Foundation was named trustee for the purpose of investing the funds. He reserved to himself and two others the powers to make distribution of the funds from the Trust. On July 8, 1964, he wrote a check in the sum of $40,000 which was also payable to the Foundation. The last item was designated as “A” Trust, because Dr. Lokey orally instructed the Secretary of the Foundation not to include it within, the Lokey Trust until it had been invested and grown to $50,000. The Foundation held the funds, but their status has been ambiguous.
Dr. Lokey justifies his withdrawing the $140,000 from the other National Division funds in two ways. (1) A number of donors made restricted gifts to him for such use as he might determine, and (2) Bishop A. Frank Smith authorized him to make the secret collection and to use it as Dr. Lokey thought best. According to Dr. Lokey, there were many people who “committed the money to me to carry out the things which we talked about, which was the strengthening of the Ministry of the Methodist Church to the Latin American People.” Such an authorization is, in fact, a good expression of Dr. Lokey’s duty to the National Division.
Dr. Lokey, though closely questioned, was unable to explain how he settled upon the sum of $140,000 as the amount of the restricted gifts. He could not recall the name of a single donor, the largest donor, the number of donors, the dates or amounts of the gifts, or the nature of the restrictions which the donors placed upon their gifts.
Dr. Lokey finds his other source of authority for creating the trust in Bishop A. Frank Smith. Bishop Smith was Chairman of the Board of Missions in 1944; he was the one who persuaded Dr. Lokey to assume the duties as Secretary for National Division, one of three divisions under the Board. Dr. Lokey produced two letters from Bishop Smith which show that the two of them maintained a separate private fund for church use. Dr. Lokey said, “The Division left it up to us to make a program and to work it out, and he, being the Chairman of the Division, whatever he wanted to do was accepted, and between the Bishop and myself was complete authority to operate and carry out the program . . . .” The Board of Missions governed the National Division, and Bishop Smith was the Chairman of the Board. My search of the Book of Discipline of the United Methodist Church does not show that the Chairman of the Board of Missions, acting alone, had the power to countermand the decisions either of the National Division or the Board of Missions.
This proof by Dr. Lokey shows that while he was employed to collect money for the Spanish Work of the Southwest and to deliver it to National Division, he collected funds for that work which he neither delivered nor reported to National Division. According to Dr. Lokey, Bishop Smith did not authorize the use of these funds in any *270amount for funding the Lokey Trust because Bishop Smith knew nothing about such a plan. Bishop Smith died in October, 1962; the Lokey Trust was created in January, 1963. Dr. Lokey testified in his deposition that neither Bishop Smith nor anyone else ever instructed him to use the church money for funding a trust, or for investment, or for the establishment of a scholarship fund. No one authorized him to use the funds by creating a trust in his own name.
A more serious problem with the holding of the majority is its failure to recognize that Dr. Lokey commingled the so-called restricted funds with those of National Division. The rule when one mixes trust funds with his own is that the whole will be treated as trust property, except so far as the commingler is able to distinguish what is his own. Andrews v. Brown, 10 S.W.2d 707 (Tex.Com.App.1928). Dr. Lokey’s commingling of the restricted funds with those of his principal imposed upon him the duty of strict accounting. Mooers v. Richardson Petroleum Co., 146 Tex. 174, 204 S.W.2d 606 (1947); 2 A. Scott, The Law of Trusts § 172 (3d ed. 1967).
Dr. Lokey’s testimony shows that he kept the restricted funds in an account separate from the National Division funds until shortly after Bishop Smith’s death. He said he had no records of that prior account and does not “know what the account was.” After Bishop Smith’s death, he began depositing the restricted funds with National Division’s funds in the same account. All records of the restricted funds, the names of the donors, the amounts of their gifts, and the nature of the restrictions asserted by Dr. Lokey have been destroyed. They were destroyed in 1965, about two years after the funds were commingled and he withdrew the $140,000. Dr. Lokey was adamant in his testimony that, even with a dozen secretaries helping him, “there could be no possibility of reconstructing the records.” Dr. Lokey could furnish no clue as to the reason $140,000 was selected as the amount of alleged restricted funds. From his testimony, not only is the record of the claimed restricted funds unknown, it is forever unknowable.
It might be thought that resort to the records of the Tyler Bank and Trust would supply the information needed to separate the restricted funds from National Division’s money. Dr. Lokey’s designation of certain funds as “restricted” came from oral instructions of the donors. The records are not now in existence and cannot be reconstructed. The bank copies of the cancelled checks for the period prior to 1964 do not reveal this information, and Dr. Lokey says that the information is now unavailable. According to Dr. Lokey, he is unable to uncommingle the funds, and there is no other living person who knew about the restricted funds.
I would affirm the summary judgment.