Krumnow v. Krumnow, 174 S.W.3d 820 (Tex. App.—Waco 2005, pet. denied).
Testator’s will was admitted to probate in a constitutional county
court and Executor duly qualified as the personal representative. Later,
an application was filed to remove Executor from office and have a
successor appointed. The county court transferred the case to the
district court under Probate Code § 5(b). The district court declined to
remove Executor at first but later removed Executor and appointed a
successor. Subsequently, Executor field a motion to have this order
vacated and the district court scheduled a hearing to resolve all
matters involving Testator’s will and inter vivos trust including the
appointment of a receiver. The district court denied Executor’s motion
and appointed a receiver. Executor appealed.
The appellate court began its analysis by examining whether the district
court had jurisdiction to issue its orders. The court agreed that the
district court had jurisdiction over whether Executor should be removed
from office because this was a contested matter under Probate Code §
5(b) which is eligible for transfer from the county court to the
district court. However, the district court lacked jurisdiction to
appointed a successor personal representative. The district court had
jurisdiction to resolve only the contested matter (whether to remove
Executor) after which the case should have returned to the county court
for further proceedings (the appointment of a successor personal
representative). Accordingly, the court vacated the district court’s
appointment of a successor personal representative.
Moral: A district court that receives a transfer from a county court has
jurisdiction to determine only the contested issues, not all issues
remaining in the case.
Krumnow v. Krumnow, 174 S.W.3d 820 (Tex. App.—Waco 2005, pet. denied).
A district court appointed a receiver on its own motion, and without
notice to the fiduciary holding the property, to swoop in and take
control over various properties involved in a will and inter vivos trust
dispute. The appellate court determined that the court abused its
discretion in issuing this order. The court explained that
“[r]eceivership is an extraordinary harsh remedy and one that courts are
particularly loathe to utilize.” Krumnow at 828. The court described how
both the trust and estate property were currently being managed by a
fiduciary and thus there was no great emergency or imperious necessity
for a receiver. The status of the property could be maintained by a less
drastic remedy such as a restraining order or temporary injunction.
Moral: The appointment of a receiver is justified only in extreme cases
where this remedy appears to be the only way to preserve or protect the
property in litigation.