dissenting.
The majority holds that a non-named successor executor to a will can be substituted without the approval of the testator, beneficiaries or any court. I cannot agree with this holding and must record my dissent. I believe the findings by the trial court holding the Substitute Fiduciary Act “the Act”, Tex.Rev.Civ.Stat.Ann. art. 548h (Vernon Supp.1989), unconstitutional is correct and should be affirmed.
I agree with the trial judge that the Act violates the principles of substantive due process. There has been no showing of any social necessity that exists which is sufficient to justify the restrictions the Act places upon the rights and liberties of testators, beneficiaries and the court. The only necessity that I see for this statute is the possibility of being an economic tent to benefit the bank while taking away the right of the testator to select the one to administer his estate. I believe the evidence in the record supports the trial court’s findings and I believe the Act deprives a person of his proper interest in selecting one to administer his estate after he is deceased. Thus, since no social necessity has been sufficiently shown, I find the Act reaches the level of arbitrary or unreasonable causing a violation of appellee’s due process rights. In Interest of B._M. _N._, 570 S.W.2d 493, 510 (Tex.Civ.App. —Texarkana 1978, no writ).
I would also hold the Act unconstitutional as violating a person’s right to contract found in Tex.Const. art. I § 16 which states:
§ 16. Bills of attainder; ex post facto or retroactive laws; impairing obligation of contracts Sec. 16. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.
Although a will is usually not treated in the same context as a contract, I believe the testator’s conveyance of property and the selection of one to administer the estate should be given the right that Texas Citizens have in entering into contracts with one another without State interference.
I do not agree with the majority that section 2(d) of Article 548h allows the testator to avoid the application of the Act. First, the section is too vague and ambiguous to be construed as allowing the testator to avoid this act. Section 2(d) states:
(d) Except as provided by this subsection, the prospective designation in a will or other instrument of the affiliated bank as fiduciary is considered designation of the subsidiary trust company, and any grant in the will or other instrument of any discretionary power is considered conferred on the subsidiary trust company. However, *48the affiliated bank and subsidiary trust company may agree in writing to have the designation of the affiliated bank as fiduciary be binding, or the creator of the fiduciary account may, by appropriate language in the document creating the fiduciary account, provide that the fiduciary account is not eligible for substitution under this Act.
From my reading of this provision, I do not find the specificity needed to place this onerous burden on the testator. The language does not indicate what the term “creator of the fiduciary account” means, nor does it state in what document the testator can avail themselves of this harsh and unconstitutional act.
Finally, I believe the ability of an executor transferring administrators without the permission of the testator or the beneficiaries offends the long standing case law which states that a person of sound mind has the legal right to dispose of his own property as he sees fit and to prescribe the terms upon which his bounty should be enjoyed. State v. Rubion, 158 Tex. 43, 308 S.W.2d 4, 8 (1958). I find the Act violates this principle and should be struck as unconstitutional. Therefore, I would affirm the judgment of the trial court.