dissent">DUNN, Justice,

dissenting.

I respectfully dissent.

Appellees request, by way of declaratory judgment, that the court determine, as a matter of law, that the promissory note falls within the provisions of Tex.Prob. Code Ann. sec. 450 (Vernon 1980). Sec. 450(a)(1) provides, in effect, that if the promissory note contains a designation of a person to receive payment at the payee’s *655death, then the promissory note is to be deemed a non-testamentary instrument.

Generally, a promissory note is testamentary in character; however, sec. 450 and the Uniform Probate Code, sec. 6-201 (1969), set out three specific instances in which a promissory note may be considered a non-testamentary document. In light of the statutes governing the execution of wills and the cases that support carrying out the will of the testator, these specific statutory exceptions to the general rule should be strictly, rather than liberally, construed.

The determination of whether or not the instrument falls within the confines of the exception must be determined from the document itself, i.e. the promissory note, and extrinsic evidence may not be offered to prove intent; otherwise, a declaratory judgment is not proper. See R & P Enterprises v. La Guarta, Gavrel & Kirk, Inc., 596 S.W.3d 517 (Tex.1980).

Considering the promissory note in question, we find the following language:

FOR VALUE RECEIVED, I, we, or either of us, as principals, promise to pay to the order of CECILIA J. BROOKS, A WIDOW, {BUT IN THE EVENT OF CECILIA J. BROOKS DEATH TO HER HEIRS STANLEY M. BROOKS AND CLARENCE E. BROOKS), in the City of Houston, County of Harris, Texas, the sum of ONE HUNDRED NINETY FOUR THOUSAND EIGHT HUNDRED FIFTY AND NO/100 — ($194,850.00) DOLLARS in legal and lawful money of the United States of America, with interest thereon from date hereof until maturity at the rate of TWELVE AND ONE HALF (12.50%) per cent per annum; the interest payable as set out below; matured unpaid principal and interest shall bear interest at the maximum rate allowed by law from date of maturity until paid. (Emphasis added.)

To fall within the confines of the exception, it must be clear and unambiguous who should receive the benefits of the note in the event of the payee’s death. This is not the case here. The mere placement of commas is capable of creating two different meanings: (1) heirs, a general category of persons statutorily recognized that would include the appellees, Stanley M. Brooks and Clarence Brooks; or, (2) by placing a comma after heirs, the specific would control the general, and only Stanley M. Brooks and Clarence E. Brooks would be entitled to the benefits of the note. Because of this ambiguity as to exactly who the “designated person” is, the court could not determine, as a matter of law, that the promissory note falls into the exception set out in the statute making it a non-testamentary document. I would find that the promissory note does not qualify under the statute as a non-testamentary instruction.

Further, as to the Liberty Association accounts, the document, referenced by the majority in support of the saving certificates being a joint account with rights of survivorship, specifically refers to only two accounts, account no. 13-159993-5 and account no. 13-1805508. With regard to these saving certificates, I agree that they are non-testamentary documents. However, Savings Certificate, Account No. 13-1705508, does not appear on this supporting document. Further, nothing in this record, including the certificate itself, tends to indicate that this savings certificate was intended to be a joint account with rights of survivorship. Savings certificate, No. 13-1705508, was issued in the name of “Cecelia J. Brooks, or Stanley M. Brooks, or Clarence E. Brooks” with no mention of rights of survivorship. I would find that this savings certificate does not qualify as a non-testamentary document.

Citation profile

How this case has been treated — in progress