dissenting.
Contrary to the express terms of the 1976 Trust Agreement, the majority permits The Denver Foundation to transfer the principal of the Sterne-Elder Trust to itself and thereby become trustee over the Trust. The majority arrives at this result based on the fact that the 1976 Trust Agreement incorporates by reference the governing documents of The Denver Foundation, which purportedly give it such authority. In my view, The Denver Foundation cannot contradict the express terms of a trust agreement, and therefore cannot, through the vehicle of incorporation, give itself authority to transfer the principal of the Sterne-Elder Trust and become trustee of the funds. Under the majority's rationale, no provision of a trust instrument is safe from such revision by incorporation. For this reason, I respectfully dissent.
The terms of the 1976 Trust Agreement governing the Sterne-Ellder Trust designate the United Bank of Denver (and its successor, Wells Fargo) as the trustee of the Trust and The Denver Foundation as one of its beneficiaries. 1976 Trust Agreement, § 2(c)(8)(d). The 1976 Trust Agreement provides that Wells Fargo is to pay the income from the Trust principal to The Denver Foundation on a periodic basis, which the Foundation will then distribute to various end-user charities. See id.; see also maj. op. at 1119. As the majority recognizes, the Sterne-Elder Trust "categorically forbids," maj. op. at 1122, The Denver Foundation from "direct[ing] disbursement of principal, or invad[ing] the principal" of the Trust. Id.; see also 1976 Trust Agreement, § 2(c)@8)(d). Indeed, I agree with the majority that the terms of the Agreement, including the provision regarding disbursement, are unambiguous. See maj. op. at 1122, 1126.1
In this case, The Denver Foundation has ordered Wells Fargo to transfer the principal of the Sterne-Elder Trust to itself, in direct contravention to section 2(c)(8)(d) of the 1976 Trust Agreement. The majority permits this transfer by relying on the fact that the 1976 Trust Agreement incorporates by reference the governing documents of The Denver Foundation, which the Foundation has construed to allow trustee banks, such as Wells Fargo, to be ordered to "disburse" to the Foundation the principal from the trusts for which these banks serve as trustee. See id. at 1124; see also 1997 Declaration, § 3-1.1. In arriving at this result, the majority holds that The Denver Foundation has the power to "conclusively construe, if in good faith" its governing documents, maj. op. at 1123, and that this power necessarily extends to interpretation of the 1976 Trust Agreement's prohibition on disbursement, which the Foundation reads to apply only to disbursement to end-user charities, not disbursement to another trustee such as The Denver Foundation.
The initial flaw in the majority's reasoning is the vast deference it pays to the Foundation's interpretation of a settlor's trust agreement. The Foundation may have the authority to conclusively construe its own governing documents, but it does not have such expansive authority over interpretation of trust instruments under which it is designated as one of many beneficiaries. The fact that the trust instrument in this case incorporates by reference the governing docu*1128ments of The Denver Foundation does not change this result. We are asked to interpret the 1976 Trust Agreement; it is the 1997 Declaration that is incorporated therein, not vice versa. The Foundation cannot give itself powers under the 1997 Declaration that, by incorporation, would contradict the plain terms of the 1976 Trust Agreement.
But the majority holds The Denver Foundation can do precisely that. Section 2(c)(B)(d) of the 1976 Trust Agreement prohibits the Foundation from "disbursing" the principal of the Trust-period. Under Article 3-1.1 of the 1997 Declaration, the Foundation is given the power to direct a trustee bank to "disburse" the principal of a trust to the Foundation. After today's decision, the principal of the Sterne-Elder Trust will have been "disbursed." The Foundation's, and hence the majority's, interpretation relies on Article 3-1.2 of the 1997 Declaration, which deals with distributions to end-user charities and "is explicitly made subject to restrictions contained in trust instruments." Id. at 1123. The Foundation concludes from this that because Article 3-1.2 is explicitly limited by the trust instrument, Article 3-1.1 must not be. See id. at 1128. But again, the 1976 Trust Agreement governs this case. The Denver Foundation is not free to abide by it in some instances and not in others.
But even if the Foundation is correct that the prohibition on disbursement of principal applies only to disbursements made to end-user charities, there is a more fundamental problem in its interpretation. By permitting The Denver Foundation to disburse the trust principal to itself "to hold for management and investment," id. at 1118, the Foundation becomes the new trustee of the Sterne-Elder Trust. This arrangement is clearly contrary to the language of the 1976 Trust Agreement, which names the United Bank of Denver (and Wells Fargo as its successor) as trustee. See 1976 Trust Agreement, § 2(c)B)(d).
The majority does not defer to any interpretation proposed by the Foundation to permit the substitution of trustees, as no such interpretation is possible from the words of 1976 Trust Agreement. Instead, the majority concludes that the Sternes were unconcerned with the question of who would serve as trustee so long as the principal of the trust remained held in a permanent endowment. See maj. op. at 1124-25. The majority thus dismisses Wells Fargo as "merely the mechanism" for executing the Sternes' "most essential purpose" of establishing a permanent endowment. Id. at 1125.
This rationale is problematic both as applied to the facts of this case and to trust law in general. On the facts, there is no indication from the 1976 Trust Agreement that the Sternes did not care whether Wells Fargo served as the trustee. On the contrary, the agreement contains extensive provisions pertaining to succession of trustees in the event that United Bank of Denver ceased to exist. See 1976 Trust Agreement, § 3 (stating that following the settlor's inability to serve as trustee, "all rights and powers of the Trustees shall thereupon vest in and thereafter be exercised only by the corporate Trustee ...." (emphasis added)); see also id. at § 2(c)@8)(d) (stating that if the Foundation is succeeded by another, "the Trustee shall hold the principal" of the Sterne-Elder Memorial Trust...."). These provisions demonstrate that the Sternes carefully and thoughtfully considered the issue of which entity would serve as the trustee of their Trust.
The majority answers that the Sternes could not have designated The Denver Foundation as trustee when they created their Trust because the Foundation was not, at that time, organized to accept such responsibility. See maj. op. at 1125. In other words, the majority reasons, had the Sternes been able to designate The Denver Foundation as trustee at the time, they would have. But the Foundation obtained the power to act as a trustee in 1983, and there was nothing preventing the Sternes from selecting the Foundation to serve as trustee after that time. See 1976 Trust Agreement, § 8 (giving settlor power to name a successor trustee); see also Restatement (Third) of Trusts § 68(1) (2008). Yet, no change was ever made. Finally, as the majority recognizes, settlors such as the Sternes are still permitted under the Foundation's governing documents to give the Foundation a gift to be *1129held in trust by a trustee bank. See maj. op. at 1120. That The Denver Foundation continues to permit such a choice demonstrates the fact that the selection of a trustee is an important one.
In the end, the majority's rationale demonstrates the dangers of elevating a trust's purpose over its language. Under the majority's rationale, The Denver Foundation could, through amendment of its governing documents and the authority to construe them "conclusively," id. at 1128, give itself any authority over the principal of the Sterne-Elder Trust as long as the trust's "most essential purpose" remains intact. Id. at 1125. Under this interpretation, there would be nothing to stop The Denver Foundation from disbursing the Trust principal to end-user charities. Indeed, the Sternesg' "most essential purpose" might simply be to put their money to good use in the future-a purpose that distribution to end-user charities would certainly serve. The majority states that its holding does not permit such a result, see id. at 1125 n. 15, but nothing in its rationale would prohibit it. I, like the majority, do not question the good faith of The Denver Foundation. See id. at 1124. But the question here is not one of The Denver Foundation's good faith; rather, it is whether the Foundation can override the language of the 1976 Trust Agreement by amending its governing documents incorporated into that Agreement. In my view, The Denver Foundation does not have the authority to revise a trust document's provisions through incorporation.
Accordingly, because I believe The Denver Foundation cannot contradict the express terms of a trust agreement, and therefore cannot, through the vehicle of incorporation, give itself authority to transfer the principal of the Sterne-Elder Trust and thereby become trustee, I respectfully dissent.
I am authorized to say that Justice RICE and Justice COATS join in this dissent.
. Because the terms of the Agreement are unambiguous, the majority properly finds extrinsic evidence regarding Wells Fargo's prior treatment of distribution orders inadmissible. See maj. op. at 1126.