Graff v. 2920 Park Grove Venture, Ltd., No. 05-16-01411-CV, 2018 WL 2949158 (Tex. App.—Dallas June 13, 2018, pet. filed).
Independent Executor contracted to sell some of the
testator’s real property to pay the estate’s debts. Beneficiary objected
asserting that the Independent Executor lacked the authority to sell the
property. Nonetheless, the sale was completed and Beneficiary brought
suit on a variety of grounds, including lack of authority to sell, all
of which the trial court rejected. Beneficiary appealed.
The appellate court affirmed. The court first held
that claims based on fraud and conspiracy were barred by the statute of
limitations. The court then focused on Beneficiary’s argument that
Independent Executor lacked the power to sell. The court examined the
will and noted that there was no express “power of sale” clause.
However, the will did not restrict the sale and an independent executor
has the authority to do any act which a dependent executor could do
under court order. The existence of estate debts provided the
independent executor with the needed authorization to sell estate
property.
Moral: To avoid a claim that an independent
executor lacks the authority to sell estate assets, the testator should
include a power of sale clause in the will.