Kanz v. Hood, 17 S.W.3d 311 (Tex. App.—Waco 2000, pet. denied).
Beneficiary sued Independent Executor complaining that he had neither
rendered an accounting nor distributed the estate and sought recovery of
his compensation and appointment of a successor executor. Executor
claimed that he had resigned from office which thereby closed the estate
so the court lacked jurisdiction over Beneficiary’s claims. The trial
court determined that Executor had filed a false closing affidavit and
appointed a receiver to sell the remaining estate assets. In an earlier
unpublished opinion, the appellate court affirmed.
Both Beneficiary and Executor then petitioned the trial court for
reimbursement of their attorney’s fees and costs. The court granted
Beneficiary’s application but denied Executor’s application. The court
also ordered the district clerk to distribute all remaining estate funds
held in the registry of the court. Executor appealed.
The appellate court affirmed. The court held that the trial court’s
determination that Executor was not entitled to attorney’s fees for
defending the removal action was not against the great weight and
preponderance of the evidence. The court focused on Probate Code §
149C(c) which authorizes the court to award attorney’s fees, even if the
removal action is successful, provided the independent executor’s
defense is in good faith. The trial court determined that Executor’s
defense of his own gross misconduct and gross mismanagement was not
taken in good faith. The appellate court agreed and rejected Executor’s
claim that the trial court was required to award attorney’s fees because
it did not remove Executor from office and did not make an explicit
finding of fact that the defense was in bad faith. The court also
rejected Executor’s argument that Garcia v. Garcia, 878 S.W.2d 678, 680
(Tex. App.—Corpus Christi 1994, no writ), held that reimbursement of
expenses is mandatory under § 149C(c).
Moral: Independent Executors who defend removal actions are not
automatically entitled to their attorney’s fees. To avoid controversy,
executors should request a specific finding that their defense was in
good faith.