In re Roy, 249 S.W.3d 592 (Tex. App.—Waco 2008, pet. denied).
Testatrix’s will named one of her four children as the Independent
Executor of her estate. The trial court removed him from office for
various breaches of duty. For example, he signed leases for
approximately half of the rent than Testatrix had been receiving. Once
the children discovered this fact, they demanded an accounting and then
objected to various items contained therein. The trial court reviewed
the evidence and determined that he had violated his duties in a variety
of ways including engaging in acts of self-dealing with regard to the
rent-reduced leases and grossly mismanaging estate property. According,
the trial court removed him from office and appointed the successor as
named in Testatrix’ will. Independent Executor appealed.
The appellate court affirmed. The court began its analysis by reviewing
Probate Code § 149C which provides the grounds for removing an
independent executor. The court examined the evidence and determined
that it was sufficient to support the trial court’s finding that
Independent Executor was guilty of gross misconduct or gross
mismanagement in the performance of his duties which is a ground for
removal under § 149C(a)(5).
The court upheld the trial court’s denial of an award of Independent
Executor’s fees in defending the removal action because he did not
defend his action for removal in good faith. The court agreed that it
was proper for the trial court to appointed the successor executor as
named in Testatrix’s will because there was no evidence that he was
disqualified under the Probate Code § 78.
Moral: An independent executor should not breach fiduciary duties by
self-dealing and mismanaging estate property.