In Texas, only those corporations specifically authorized by statute have the power to act as a trustee of Texas trusts. See Port Arthur Trust Co. v. Muldrow, 155 Tex. 612, 291 S.W.2d 312 (1956); Stewart v. Ramsey, 223 S.W.2d 782 (Tex. 1949). The only source of a corporation's power to act as a trustee in Texas is the Texas Banking Code, Art. 342-902, which provides that:
In 1945, however, the Supreme Court had declared it to be `against the public policy of this state' for a corporation to be a member of a limited partnership. Lubing Oil Gas Co. v. Humble Oil Refining Co., 191 S.W.2d 716, 722 (Tex. 1945). In Port Arthur Trust Co. v. Muldrow, 291 S.W.2d 312 (Tex. 1956), the Court created an exception to the Luling rule to permit a corporation to serve as a limited partner. 291 S.W.2d at 315. On the basis of this decision, the Court of Civil Appeals held, in a 2-1 decision in Delaney v. Fidelity Lease Ltd., 517 S.W.2d 420 (Tex.Civ.App.-El Paso 1974), that it is `permissible in this State to form a limited partnership where a corporation is the only general partner.' 517 S.W.2d at 423.
It is permissible in this State to form a limited partnership where a corporation is the only general partner, provided that the purpose to be carried out by the limited partnership is lawful. Port Arthur Trust Company v. Muldrow, 155 Tex. 612, 291 S.W.2d 312 (1956); 19 Hamilton, Texas Business Organizations § 212, p. 196. While the Port Arthur Trust Company case had before it only the question of the corporation entering the limited partnership as a limited partner, the Court in no uncertain language decided that a corporation was a 'person' within the meaning of Art. 6132a and placed no restriction as to a corporation entering the limited partnership as a general partner.
(1 Fletcher, Cyclopedia of Corporations 27.) It is also generally held and widely accepted in most jurisdictions that: ". . . [s]tatutory use of the word persons to include corporations is so general that to hold corporations are not included requires clear proof of the legislative intent to exclude them." ( Central Amusement Co. v. District of Columbia (Mun. Ct. App. Dist. Col. 1956) 121 A.2d 865, 866; see State v. Gibson (1958) 51 Del. 158 [ 140 A.2d 774, 776]; cf. Port Arthur Trust Company v. Muldrow (1956) 155 Tex. 612 [ 291 S.W.2d 312, 315, 60 A.L.R.2d 913]; see also 18 Am.Jur.2d, Corporations, § 22, p. 572; 1 Fletcher, Cyclopedia of Corporations 27.) Neither the federal nor state Constitutions define the term "person," but each document contains several references to the rights of persons, and it is well settled that the term "person" within the meaning of each Constitution includes corporations.
Texas courts have generally been reluctant to apply the rule when the reason for applying it is absent. E. g., Port Arthur Trust Company v. Muldrow, 155 Tex. 612, 291 S.W.2d 312, 60 A.L.R.2d 913 (1956). Furthermore, a corporation which represents itself to be a partner cannot, as a general rule, deny that status to escape liability to a person who has been misled by the corporation's representation.
The court had no point of error before it requiring such statement to be made. Its accuracy depends upon the scope of the corporate charter, Luling Oil Gas Co. v. Humble Oil Refining Co., 144 Tex. 475, 191 S.W.2d 716 (1945), and upon whether we should extend our holding in Port Arthur Trust Co. v. Muldrow, 155 Tex. 612, 291 S.W.2d 312 (1956), to sanction corporations acting as general partners in a statutory limited partnership. We reserve any decision on these questions until they are properly presented for our determination.
This case does not involve any issue as to the power of a Mississippi corporation to become a partner. See 13 Am. Jur., Corporations, §§ 823-825; Rowley, The Corporate Partner, 14 Minn. L. Rev. 769 (1930); Port Arthur Trust Co. v. Muldrow, 155 Tex. 612, 291 S.W.2d 312 (1956), noted in 35 Tex. L. Rev. 265; Barrett Seago, Partners and Partnerships: Law and Taxation (1956), § 7, pp. 65-70 (joint adventure); Lindley, The Law of Partnership (9th ed. 1924), p. 105. (Hn 3) Although not as precise as it should have been, the declaration adequately alleged agency.
Since a corporation is included within the definition of the term "person" under RCW 25.04.020, it follows that a corporation can enter into a limited partnership as a general or limited partner. Kitchell Corp. v. Hermansen, 8 Ariz. App. 424, 446 P.2d 934 (1968); Port Arthur Trust Co. v. Muldrow, 155 Tex. 612, 291 S.W.2d 312, 60 A.L.R.2d 913 (1956); Rathke v. Griffith, 36 Wn.2d 394, 218 P.2d 757, 18 A.L.R.2d 1349 (1950); J. Crane A. Bromberg, Law of Partnership § 9 (1968); 26 WASH. L. Rev. 222 (1951). RCW 25.08.070 (2) (a) assumes that a corporation can be a general partner of a limited partnership when it states that a limited partner shall not be deemed to take part in control by possessing or exercising the power to vote on the transfer of a majority of the voting stock of a "corporate general partner."
"The Uniform Limited Partnership Act used the word `person' or `persons' and there is no language in such Act excluding a corporation from the meaning of the word `person' as used in the Act, therefore, we hold that a corporation legally qualified under appropriate statutory provisions to act as a trustee may enter into a limited partnership organized to carry out a lawful purpose. * * *" Port Arthur Trust Co. v. Muldrow, 155 Tex. 612, 291 S.W.2d 312, 60 A.L.R.2d 913 (1956). While this case may be limited to a trust company acting as trustee of an express trust, we think that the better rule should not limit corporate activity and liability in limited partnerships to a trustee situation.