Pense v. Bennett, No. 06-20-00030-CV, 2020 WL 5948801 (Tex. App.—Texarkana Oct. 8, 2020, no pet. h.).


Trustee Powers

The trial court granted summary judgment that the trustee had the power under the trust instrument and the Trust Code to convey certain real property. On appeal, the beneficiary claimed that the summary judgment was improper because of his allegation that the transfer was in breach of the trustee’s fiduciary duty. The appellate court rejected this claim because the trial court did not have before it the issue of whether the transfer was in breach. In fact, the judgment clearly provided that the “court makes no findings or determinations” on that issue because it is being litigated in a case pending in another court.

Moral:  The determination of whether the trustee had the power to make a transfer of property is distinct from whether the exercise of that power was proper.