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At a Glance:
Armstrong v. Roberts
December 7, 2006
211 S.W.3d 867
Published Opinion

Armstrong v. Roberts

Court of Appeals of Texas,

El Paso.

Terry L. ARMSTRONG and Ronald Kemp, Appellants,


J.C. ROBERTS, Deceased and Parties in Interest, Mary Lou Garrison, Richard G. Garrison, and Pamela Buckley, Appellees.

No. 08–05–00164–CV.


Dec. 7, 2006.


Rehearing Overruled Feb. 7, 2007.

Attorneys & Firms

*868 Phillip C. Bowen, El Paso, for Appellants.

Dan Sullivan, Andrews, for Appellees.

Before McClURE, J., and BARAJAS, C.J. (Ret.) (BARAJAS, C.J. (Ret.), sitting by assignment, not participating).



Terry L. Armstrong and Ronald Kemp (collectively Armstrong) appeal a declaratory *869 judgment in favor of their aunt, Mary Lou Garrison. We affirm in part and reverse in part.


This controversy surrounds the death of John C. Roberts on February 3, 2003. Roberts fathered two daughters, Mary Lou Garrison and Mamie Jo Kemp. In 1994, Roberts granted Mary Lou a power of attorney. Based on that authority, Mary Lou purchased three certificates of deposit and designated the payees on death for each: (1) a $60,000 certificate of deposit payable on death to Mary L. Garrison and Pamela Buckley; (2) a $100,362.33 certificate of deposit payable on death to Mary Lou Garrison and Maime Jo Kemp; and (3) a $100,000 certificate of deposit payable on death to Mary L. Garrison. Mamie Jo died in 2002 and was survived by two children, Terry L. Armstrong and Ronald Kemp. Mary Lou Garrison has one daughter, Pamela Buckley.

Pursuant to Roberts’ Last Will and Testament, all property owned by him passed to Maime Jo and Mary Lou.1 At the time of Roberts’ death, his estate included the three certificates of deposit and one checking account containing $20,159.17. The will was admitted to probate on May 12, 2004. Some three weeks later, Mary Lou filed a declaratory judgment action seeking to establish that while Armstrong and Kemp were entitled to their respective one-fourth shares of Roberts’ estate, the bank account and certificates of deposit passed to her because of her right of survivorship. The declaratory judgment was granted on April 1, 2005.


In multiple issues for review, Armstrong challenges the trial court’s findings of fact and conclusions of law that the power of attorney authorized Mary Lou to purchase the certificates of deposit; that the CDs were valid pay on death accounts; and that Mary Lou met her burden of establishing the fairness of the transactions which arose from a fiduciary relationship.

Standard of Review

A trial court’s fact findings have the same force and dignity as a jury’s verdict. Id. at 883.

The Power of Attorney

The language of a power of attorney determines the extent of authority conveyed. Gouldy v. Metcalf, 75 Tex. 455, 458, 12 S.W. 830, 831 (1889).

The document at issue provides:

JOHN C. ROBERTS of the County of Andrews and State of Texas has this day Made, Constituted and Appointed and by these presents do Make, Constitute and Appoint MARY L. ROBERTS GARRISON of Andrews, in the County of Andrews and State of Texas true and lawful Attorney for and in my name, place and stead, to do any and every act and exercise any and every power that I might or could do or exercise through any other person and that they shall deem proper or advisable, intending hereby to vest in them a full and universal power of attorney giving and granting unto my said attorneys full power and authority

hereby giving and granting to said Attorney full power and authority to do and perform any and all acts and things whatsoever requisite and necessary to be done in and about the premises, as fully and to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that said Attorney or substitute shall lawfully do in the premises by virtue thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand at Andrews County, Texas this 23rd day of Andrews2 [sic], A.D.1994.

Roberts placed no restrictions upon the actions Mary Lou could take. Where an instrument is free from qualifying features either on its face or from the evidence, the agent has unlimited power to act in complete substitution for any act which the principal might himself do if present and acting. Veatch v. Gilmer, 111 S.W. 746, 747 (Tex.Civ.App.1908). Since Roberts granted Mary Lou broad powers, she properly created the certificates of deposit. We conclude, however, that she lacked the authority to designate the payees on death.

Designation of Payees on Death

All three certificates of deposit are governed by Probate Code Section 439(b):

If the account is a P.O.D. account and there is a written agreement signed by the original payee or payees, on the death of the original payee or on the death of the survivor of two or more original payees, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more P.O.D. payees die before the original payee. If two or more P.O.D. payees survive, there is no right of survivorship in event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.

TEX. PROB.CODE ANN. § 439(b)(Vernon 2003) (emphasis added). Armstrong claims that based on this language, Mary Lou was prohibited from designating payees on death because only Roberts, the original payee, could make such designation.

Our primary objective in statutory construction is to determine the Legislature’s intent and give it effect. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied).

The Legislature amended Parker v. JPMorgan Chase Bank, 95 S.W.3d 428, 429–32 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (non-movant in summary judgment proceeding failed to establish fact issue that payable on death account was created where decedent opened two accounts, receipts indicated accounts were P.O.D., beneficiary was designated, but account receipt was not signed by the decedent). We sustain Issue One. Our resolution of this issue negates the necessity of our consideration of Issue Two, Issues Four through Thirteen, and Issue Fifteen.


In Issues Three and Fourteen, Armstrong complains of the trial court’s determination that the checking account constituted a joint account with right of survivorship. The Probate Code provides:

Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties against the estate of the decedent if, by a written agreement signed by the party who dies, the interest of such deceased party is made to survive to the surviving party or parties. Notwithstanding any other law, an agreement is sufficient to confer an absolute right of survivorship on parties to a joint account under this subsection if the agreement states in substantially the following form: ‘On the death of one party to a joint account, all sums in the account on the date of the death vest in and belong to the surviving party as his or her separate property and estate.’ A survivorship agreement will not be inferred from the mere fact that the account is a joint account. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under Section 438 of this code augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death, and the right of survivorship continues between the surviving parties if a written agreement signed by a party who dies so provides.

Shaw v. Shaw, 835 S.W.2d 232, 234 (Tex.App.-Waco 1992, writ denied).

*872 In 1991, Roberts opened a joint bank account with his wife Julia and Mary Lou. Mary Lou’s husband was added to the account in 2003. The record contains a copy of the front side of the bank’s signature card reflecting the signatures of Roberts, Julia, Mary Lou, and her husband. Originally a money market account, it was changed to a NOW account by Mary Lou in 1998. The signature card reads, “Ownership: Joint w suv.” Armstrong contends this language is insufficient to establish rights of survivorship because the bank card does not contain the “safe harbor” language from Section 439(a) or its substantial equivalent: “On the death of one party, to a joint account, all sums in the account on the date of death vest in and belong to the surviving party as his or her separate property and estate.”

Shaw, 835 S.W.2d at 235. We agree with Armstrong that “Joint w suv” is insufficient.

Mary Lou counters that the back of the signature card meets the requirements of Section 439(a). The front of the signature card does contain this recitation:


We reiterate that only a copy of the front of the card was admitted. Nevertheless, Deborah Rulestead, a senior vice-president of the bank, testified as to the contents of the back of the signature card.

Q: Now, we don’t have the second page to this, we don’t have it, but is there a back to this or a second page of this that explains the different types of accounts, the survivorship would be different types of accounts of whether or not the P.O.D.’s or otherwise?

A: Yes, sir, on the second page.

Q: Okay. And even though we don’t have that itself, the original would contain that information, is that correct?

A: Yes, sir.


Q: What does a joint account with survivorship mean to you? How do you—what does the Bank do when it has an account like that?

A: If it’s a joint account with survivorship, it’s an account that’s owned by more than one person. If one of the person’s [sic] dies then all the money in that account goes to the living person who remains on the account.

Q: If it’s a multiple account, does it—who does it go too?

A: It goes to the other sibling.

Q: It goes to the last surviving, the survivor of the account?

A: Yes, sir.

Q: Is that correct?

A: Yes, sir.

Q: And that’s explained on the back, is that correct?

A: Yes, sir.

*873 Armstrong objected and the following transpired:

[Armstrong’s Counsel]: Your Honor, again, we’re going to object to that, that-

The Court: Well, what does it matter. Maybe somebody can explain to me what does it matter whether it is explained on the back.

[Mary Lou’s Counsel]: I can explain, what counsel is trying to do. Counsel is trying to use a technicality of the law in order to keep these people from having what they contracted for when they opened this Bank account. He said that because we don’t have the second page to it that explains the account, that the survivorship doesn’t comply with Rule 439. That’s all they’re trying to do—

The Court: Well, the nature of the account is the nature of the account, whether or not, I mean the account is what it is.

[Armstrong’s Counsel]: As demonstrated in this courtroom today without any attachment of something that I have not even seen, Your Honor.

[Mary Lou’s Counsel]: Well, there’s no law that I understand that if I had an agreement with you or with Counsel not to introduce any instruments I still can get testimony from witnesses about what’s on the back. I mean that shouldn’t limit me from testimonial evidence as opposed to documentary evidence.

The Court: Go ahead. Overruled.

Because Armstrong has not properly challenged the evidentiary ruling, we will consider Rulestead’s testimony in our analysis.4 She testified that the nature of a joint account with survivorship rights was explained on the back of the signature card as an account owned by more than one individual and that upon an individual’s death, all the money in the account passes to the survivor(s). The record thus reveals that the signature card contains language substantially similar to Section 439(a) need not be followed exactly, but must be “substantially” followed to create a joint account with rights of survivorship). We overrule Issues Three and Fourteen.


We affirm the judgment of the trial court with regard to the checking account. Having found error with regard to the certificates of deposit, we reverse and render judgment that these funds be distributed according to Roberts’ will.



He was preceded in death by his wife, Julia.


The power of attorney was executed on September 23, 1994.


See Act of Sept. 1, 1993, 73rd Leg., R.S., ch. 846, § 26, 1993 Tex. Gen. Laws 3337, 3348.


Armstrong raised the evidentiary issue in a reply brief. An issue raised for the first time in a reply brief is not properly preserved for our review. Howell v. Texas Workers Compensation Com’n, 143 S.W.3d 416, 439(Tex.App.—Austin 2004, pet. denied) (the rules of appellate procedure do not allow an appellant to include a new issue in a reply brief that was not raised in appellant’s original brief).

End of Document