Humane Soc'y of Austin & Travis Cty., 531 S.W.2d at 580; In re Roy, 249 S.W.3d 592, 596 (Tex. App.-Waco 2008, pet. denied) (citing Geeslin v. McElhenney, 788 S.W.2d 683, 685 (Tex. App.-Austin 1990, no writ)). The executor must take care of the estate property as a prudent person would take care of the person's own property.
See In re Roy, 249 S.W.3d 592, 596 (Tex. App.-Waco 2008, pet. denied); Geeslin v. McElhenney, 788 S.W.2d 683, 685 (Tex. App.-Austin 1990, no writ). An executor's personal interests may not conflict with his fiduciary obligations to the estate and its beneficiaries.
Breach of Fiduciary Duty to BeneficiariesIn describing when a conflict of interest can amount to "gross misconduct or gross mismanagement," the court cited the Waco court's decision in In re Roy, 249 S.W.3d 592 (Tex. App.—Waco 2008, pet. denied). See Kappus, 284 S.W.3d at 838 n.30.
Appellees cite In the Interest of Roy for the well established principle that a fiduciary relationship creates a duty to disclose. See 249 S.W.3d 592, 597 (Tex. App.—Waco 2008, no pet.) (citing Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 669 (Tex. App.—Dallas 1986, writ ref'd n.r.e.)). There, the executor took a fee for the sale of the residence without disclosing this in the accounting and also reduced the rent.
Appellees cite In the Interest of Roy for the well established principle that a fiduciary relationship creates a duty to disclose. See 249 S.W.3d 592, 597 (Tex. App.—Waco 2008, no pet.) (citing Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 669 (Tex. App.—Dallas 1986, writ ref'd n.r.e.)). There, the executor took a fee for the sale of the residence without disclosing this in the accounting and also reduced the rent.
Texas law and the terms of the will thus confirm that the trustee's duty not to self-deal also applies to Mrs. Fisher as executrix as well. Humane Soc'y of Austin Travis County v. Austin Nat'l Bank, 531 S.W.2d 574, 577 (Tex. 1975); see In re Roy, 249 S.W.3d 592, 596 (Tex.App.-Waco 2008, pet. denied).
Corpus Christi Bank & Tr. v. Alice Nat'l Bank , 444 S.W.2d 632, 634 (Tex. 1969) ; seeEastland v. Eastland , 273 S.W.3d 815, 821 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ("The primary distinction between an independent administration and a dependent administration is the level of judicial supervision over exercise of the executor's power."). The independent executor's task is to pay claims against the estate and distribute the remaining assets under the will, a settlement agreement, or the Texas Estates Code. See TEX. EST. CODE § 403.051(a) ; Ertel v. O'Brien , 852 S.W.2d 17, 20–21 (Tex. App.—Waco 1993, writ denied) ("An independent executor is charged with the duty of paying the claims against the estate subject to the order and classification set out in the Probate Code."); cf.In re Roy , 249 S.W.3d 592, 596 (Tex. App.—Waco 2008, no pet.) ("As trustee of the estate's property, the executor is subject to high fiduciary duties."). "An independent administration is to close, and the authority of the personal representative is to terminate, when the estate has been settled."
See In re Estate of Casida, 13 S.W.3d 519, 524 (Tex.App.-Beaumont 2000, no pet.) (The grounds of removal alleged showed no bad faith, but rather a disagreement over the value of the property.).See In re Roy, 249 S.W.3d 592, 596-97 (Tex.App.-Waco 2008, pet. denied) (holding that while a conflict of interest might not be enough to remove an independent executor, the failure to disclose that conflict was grounds for removal).Id.
However, an issue raised for the first time in a reply brief is ordinarily waived and need not be considered. See Tex. R. App. P. 38.3; see also In re Roy, 249 S.W.3d 592, 595 (Tex. App.-Waco 2008, pet. denied) (citing Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.-Houston [1st Dist.] 2003, pet. denied)). Moreover, J.G. and T.B. failed to cite any legal authority in support of the complaint pertaining to the child-support order.
However, an issue raised for the first time in a reply brief is ordinarily waived and need not be considered. See TEX. R. APP. P. 38.3; see also In re Roy, 249 S.W.3d 592, 595 (Tex. App.-Waco 2008, pet. denied) (citing Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.-Houston [1st Dist.] 2003, pet. denied)). Moreover, J.G. and T.B. failed to cite any legal authority in support of the complaint pertaining to the child-support order.