If the Estate wants the money returned to the estate, then the release of lien must be voided, and the parties put back into the position they were in before the check was deposited. See Pearce v Stokes, 291 S.W. 2d 309, 312 (Tex. 1956) (voiding a sale that took place before an estate was established). By granting summary judgment in favor of the Estate and ordering First Tech to repay the Estate, the trial court did not promote equity, but created a windfall for the Estate.

Id. at 626. In support of this proposition, the court cites two Texas Supreme Court cases: Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309 (1956), and Cochran's Adm'rs v. Thompson, 18 Tex. 652 (1857). Both cases are distinguishable because each deals with court-appointed (as opposed to independent) administrations.

Id. at 626. In support of this proposition, the court cites two Texas Supreme Court cases: Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309 (1956), and Cochran's Adm'rs v. Thompson, 18 Tex. 652 (1857). Both cases are distinguishable because each deals with court-appointed (as opposed to independent) administrations.

Id. at 678. In Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309 (1956), a certain Mr. and Mrs. Stokes executed a deed of trust on specified real property to secure the payment of purchase money notes. Sixteen months later, Mr. Stokes died and eventually a default

Glenn's claim is stated in terms of the theory of devastavit—an allegation that, as personal representative, White mismanaged an estate and allowed avoidable losses or errors. D.E. 23. He claims that White owes a fiduciary duty as a trustee of the decedent's estate pursuant to Tex. Probate Code § 37 (now Tex. Estates Code § 101.003), citing Ertel v. O'Brien, 852 S.W.2d 17 (Tex. App.—Waco 1993, writ denied) (relying in part on Pearce v. Stokes, 291 S.W.2d 309 (Tex. 1956)). The FCLTcourt reviewed the Ertel holding and the Texas Supreme Court cases on which it was based, determining that the only basis for a fiduciary duty in that case was the court's order appointing the executor as opposed to the statutory scheme of independent administration at issue here.

Texas law concerning estate administrators is in accord. See, e.g., Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309, 312 (1956) ("An administration is for the benefit of all creditors not just those who have secured claims or other claims of high priority."); James Cochran's Adm'rs v. Thompson, 18 Tex. 652, 1857 WL 5019, at *3 (1857) ("The appointment of an administrator is merely a trust to pay the claims of creditors, and then restore the remainder of the assets to the heirs."). If Tomlin intended to contend at oral argument that, because § 37 of the Probate Code covers the topic of fiduciary duties, if it does not impose such a duty then the trust-type obligation required by § 523(a)(4) cannot be derived from Texas common law, the court disagrees.

In exchange for Alamo's agreement to save Mrs. Gold from the threat of foreclosure, the parties agreed that Mrs. Gold would assume the note held by Alamo against Stetson. It is the law in Texas that a court may take judicial notice that property is worth more at a private, arms-length sale than at a forced sale under a deed of trust. Stokes v. Pearce, 285 S.W.2d 475, 478 (Tex.Civ.App. — Eastland 1955), aff'd, 155 Tex. 564, 291 S.W.2d 309 (1956). Each party to this transaction received consideration in two separate ways. Mrs. Gold received the use of the $75,000 principal on the original note for an additional year; in payment for this extension, Mrs. Gold was to pay one year's interest on the note.

According to Garza, because the opening of an administration of a probate estate suspends the power of sale in a deed of trust, her filing of the application similarly suspended the power of sale. See Pearce v. Stokes, 291 S.W.2d 309, 568 (Tex. 1956) (opening of an administration suspends power of sale in deed of trust executed by decedent). Therefore, she asserted Wells Fargo's deed was void and, as Trevino's heir, she was the true owner of the property.

A mortgagee has no proprietary interest, such as the right to dispose of the property, and no right of possession unless and until he acquires them by foreclosure of his lien. Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309, 312 (1956); Humble Oil Ref. Co. v. Atwood, 150 Tex. 617, 244 S.W.2d 637, 640 (1951); Carroll v. Edmondson, 41 S.W.2d 64, 65 (Tex.Comm'n App. 1931, judgm't adopted); Madison Rayburn, Texas Law of Condemnation Sec. 79, at 289 (1960); John Huffaker, Note, Condemnation — The Mortgagee's Interest in the Condemnation Award For a Partial Taking of the Mortgaged Property, 4 Tex.Tech L.Rev. 405, 406 (1973). A mortgagee could not, for example, be a "property owner" entitled to recover moving expenses as damages under section 21.043(a) of the Property Code.

FDIC is such a creditor. Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309, 312 (1956); Cochran v. Thompson, 18 Tex. 652, 657 (1857). Moreover, Patricia Buller places major reliance on Ex parte Yates 387 S.W.2d 377 (Tex. 1965).