dissenting.
I must respectfully dissent from the majority’s decision to reverse and render the portion of this case that was brought forward on appeal. Appellant is incorrect in her contention that upon the death of John J. Oadra, she owned all the funds in the account as trustee under Chapter XI of the Texas Probate Code.
John J. Oadra was the grantor of this bank account. He opened and funded .the account with only his money. He earned and contributed 100% of the funds in this account. According to appellant’s own testimony, John J. Oadra exercised exclusive control over the funds in the account. He was the only person to deposit to, withdraw from, or change the amounts or terms of the account. From the account’s inception in 1982 until his death in 1984, John J. Oadra’s funds were re-invested by him, not appellant. Appellant, in signing the account card, was simply placing her signature where she was told to sign. She testified she did not understand what she was signing and was not aware that she was signing the card as a trustee. Further, her testimony established she had no intention to create a trust and was not under the impression that John J. Oadra had given her these funds. Appellant had never even been to Mainland Savings to deal with this account until she went after John J. Oa-dra’s death and changed the name on the account to Stella A. Oadra or Annie Kowis or Walter J. Oadra.
This dissent is founded upon the sound reasoning of Justice Hecht in Stauffer v. Henderson, 801 S.W.2d 858 (Tex.1990), and my construction of the statutes. Although Justice Hecht’s case did not involve the same type of bank account, his reasoning is equally applicable to the facts of this case.
Ownership of the funds is the primary issue on appeal and the statutes clearly set out the determination of ownership. Section 438 governs the ownership of the funds in this account during the lifetime of all parties. See Tex.Prob.Code Ann. § 438 (Vernon 1980). Subsection (c) states that “a trust account belongs beneficially to the trustee during his lifetime, and if two or more parties are named as trustee ..., during their lifetimes beneficial rights as between them are governed by subsection (a) of this section.” Tex.Prob.Code Ann. § 438(c) (Vernon 1980). Subsection (a) plainly states that “[a] joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” Tex.Prob. Code Ann. § 438(a) (Vernon 1980). The jury found by clear and convincing evidence that John J. Oadra did not make a gift of the funds to appellant and that she was not a grantor of the account. Thus, as between appellant and John J. Oadra, during his lifetime and at the time of his death, all funds in the account belonged to John J. Oadra, the sole depositor.
The majority stumps its toe when it continues to apply section 438(c) to this account after the death of one of the parties. Although I agree with the majority that appellant is still a trustee after John J. Oadra’s death and would have a right to payment of the funds, section 438(c) cannot vest beneficial ownership of the funds in her. Section 438(c) does not create a right of survivorship between trustees as the majority suggests. Section 438(c) only governs the ownership of the funds in the account while all the parties to the account are still alive. See Tex.Prob.Code Ann. § 438 (Vernon 1980). After one party to a multiple-party account dies, section 439 governs the ownership of the funds. See Tex.Prob.Code Ann. § 439 (Vernon 1980). Thus, after John J. Oadra’s death, the ownership of the funds in the account must be determined by section 439. As noted by Justice Hecht:
*469[S]ection 439 provides the exclusive means for creating a right of survivor-ship in joint accounts. In addition to simple joint accounts treated in section 439(a), it applies to P.O.D. (payable on death) accounts (section 439(b)) and trust accounts (section 439(c)).
* * * * * *
Section 441 adds: “Transfers resulting from the application of Section 439 of this code are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary or subject to the testamentary provisions of this code.”
Stauffer, 801 S.W.2d at 862-63.
Subsections (a) and (b) of section 439 do not apply in this case, since the account is not a joint account, or P.O.D. account. See Tex.Prob.Codb Ann. § 439(a), (b) (Vernon 1980). Subsection (c) does govern trust accounts, but it states “[i]f the account is a trust account, on death of the trustee or the survivor of two or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving_” Tex.Prob.Code Ann. § 439(c) (Vernon 1980). Since appellant is a trustee and is still alive, subsection (c) does not apply to this case. This leaves subsection (d), which applies to all other cases where a party to a multiple-party account has died, and that means this case. Subsection (d) states “[i]n other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of his estate.” Tex.Prob.Code Ann. § 439(d) (Vernon 1980) (emphasis added). Thus, since John J. Oadra owned all the funds in the account during his lifetime, upon his death his ownership is now transferred as part of his estate. Appellant has no ownership in these funds whatsoever.
In Stauffer, it was found that the signature card of the joint account in question authorized the payment of funds to the survivor of the two account holders but did not create a right of survivorship such that the survivor owned the funds. Stauffer, 801 S.W.2d at 865-66 (emphasis added). In this case, the majority confuses the right to payment of the funds with ownership of these funds. The language in the account card authorizes Mainland Savings to pay the funds to either John J. Oadra or appellant. However, as section 437 points out “[t]he provisions of Sections 438 through 440 of this code that concern beneficial ownership as between parties, ... are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts.” Tex.Prob.Code Ann. § 437 (Vernon Supp. 1992).
Similarly, section 447, which governs the payment of a trust account, authorizes payment “on request, to any trustee.” Tex. Prob.Code Ann. § 447 (Vernon 1980). But section 448 makes it clear that payment made under section 447 merely “discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between the par-ties_” Tex.Prob.Code Ann. § 448 (Vernon 1980). The principal purpose of statutes such as section 447 and bank account cards “is to authorize the depository to pay funds in the account upon the direction of any party, not to establish ownership of the funds as between the parties upon the death of one of them.” See Stauffer, 801 S.W.2d at 861. In this manner, financial institutions are protected from lawsuits brought by beneficiaries, other trustees, and survivors after the death of a party to a multiple-party account. This has nothing to do with establishing ownership of the funds in the account.
Ownership of the funds is established by sections 438 and 439. John J. Oadra’s ownership vested in his estate upon his death pursuant to these statutes. In order to change ownership of the funds in the account there must be some act of transfer. In this case, there is no evidence of any act by John J. Oadra to transfer ownership or to relinquish dominion and control of the funds. Instead, appellant’s own testimony proved John J. Oadra’s continued dominion *470and control over the funds right up until his death.
The majority’s observation that the Texas Legislature made changes in the Uniform Probate Code when it adopted that Code is correct. However, the majority fails to discuss the basis for those changes or why any changes were even necessary in adopting the Uniform Probate Code. Section 6-104 of the Uniform Probate Code was based on the assumption that when parties create a joint bank account they want the survivor or survivors of the account to own the funds remaining in the account upon the death of one of the parties. Unip.Prob.Code § 6-104 comment (1983). In other words, this section of the Uniform Code was drafted to create the presumption that upon the death of one party in a multiple-party account, the surviving parties to the account owned the funds on deposit. See id. This is exactly the opposite of the development of joint tenancies with the right of survivorship in Texas. As Justice Hecht noted in Stauf-fer, when joint accounts were authorized under the 1848 Texas statute, a written agreement between the parties to the account was required in order to create a joint tenancy with right of survivorship. Stauffer, 801 S.W.2d at 860. This is consistent with the policy in this country which historically was against the right of surviv-orship. See Stauffer, 801 S.W.2d at 859-60 (citing C. Moynihan, Introduction to the Law of Real Property 210-11 (2d ed. 1988)). Although the wording of this section has changed since 1848, the basic presumption against the right of survivorship has “survived” and is embodied in section 439. See Tex.Prob.Code Ann. § 439 (Vernon 1980). Section 439(a) takes the language of section 6-104(a) and adds the specific requirement that a right of surviv-orship between parties must be expressed in writing in order to be effective. See Unif.Prob.Code § 6-104(a) (1983); Tex. Prob.Code Ann. § 439(a) (Vernon 1980).
The removal of section 6-104(c)’s reference to subsection (a) in its adoption by the Texas Legislature, indicates to me that the legislature intended section 439(c) or section 439(d) (the “catchall” subsection) to govern trust accounts. The presumption involved in a trust account under section 439(c) is that the funds should vest in the surviving beneficiary or beneficiaries on the death of the trustee or all trustees. Tex.Prob.Code Ann. § 439(c) (Vernon 1980). In other words, a trust account specifically creates a right of survivorship between the trustee and the beneficiaries to avoid probate. See id. This is the purpose of such accounts, and there is no need for a separate written agreement as required by subsection (a) of section 439. The idea that section 438(c) creates a right of survivor-ship between multiple trustees so that upon the death of one trustee the funds in the account somehow automatically vest in the other trustee or trustees is antagonistic toward the statutory intent of section 439(c). In general, such a right of surviv-orship between trustees would defeat the intent that section 439 govern exclusively the right of survivorship between parties to multiple-party accounts. See Stauffer, 801 S.W.2d at 862-63. Further, it defeats the purpose of having section 439(d) which is to govern the right of survivorship in multiple-party accounts when the other subsections of section 439 do not apply. Tex. Prob.Code Ann. § 439(d) (Vernon 1980). I find nothing in the majority’s discussion of the changes made to the Uniform Probate Code in its adoption by the Texas Legislature, which would support or justify such an outcome.
Death is unwelcome under any circumstances, but under the majority’s decision John J. Oadra’s murder proved to be disastrous for his estate. The result reached by the majority diminishes John J. Oadra’s estate by over $400,000 solely due to his untimely death. Additionally, the majority’s findings are in direct contravention with the jury findings at trial. The jury found by clear and convincing evidence that John J. Oadra did not make a gift of the funds in the account to Stella A. Oadra and that Stella A. Oadra was not a grantor of the account. For this Court to set aside these jury findings, the evidence must be legally or factually insufficient to support them. Such is not the case in this instance *471since an examination of the record reveals there is ample evidence to support the jury findings. See Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Further, the majority’s decision is in direct conflict with the longstanding policy in Texas that the right of survivorship as a legal incident of joint ownership or joint accounts is not favored. See Stauffer, 801 S.W.2d at 859-60 (citing C. Moynihan, Introduction to the Law of Real Property 210-11 (2d ed. 1988)). The consequences of such a decision are that the creditors of John J. Oadra’s estate are cheated and his intended beneficiaries are denied their rightful inheritance. A man who funded a bank account and put his mother’s name on it for tax purposes is now having those funds taken away from the rightful owner, his estate.
The trial court properly held that appellant did not own the funds in the account. Instead of awarding the funds to specific individuals, however, the trial court should have awarded the funds to Robin Denise Oadra Stegall, as successor administratrix of the Estate of John J. Oadra. For the reasons stated above, I respectfully dissent. I would not sustain appellants’ point of error, but rather would affirm as modified the trial court’s judgment.
SEARS, J., joins in this dissent.