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Click here for the full text of this decision FACTS:Garcia Talmadge Miller died in Dallas County on Oct. 9, 2002, at the age of 101 years old. He left a will dated Aug. 6, 1985. Jasper C. Rowe, the grandnephew of the testator, was named independent executor under the will. On Oct. 26, 2002, before the will was admitted to probate, Rowe, purportedly acting in his professional capacity as an attorney, entered into an “informational agreement” with Madison Miller, the primary beneficiary of the estate. This “informational agreement,” in the form of a letter, purported to set forth “terms” of representation “in order to Enable Transfer of Estate to Heirs, ASAP.” This letter informed Madison of Rowe’s hourly rate and “that at the exclusive option of this office, payment may be determined to be paid on a contingent fee basis.” The letter included a description of the contingent fee to be a “total legal fee of 1/3 (one-third) of the value of the claim . . . if the case is settled before suit is filed” and was signed by Miller on a signature line over which was typed “acknowledged and agreed to,” as “Heir of Estate,” for the “Estate of Lucy and Garcia T. Miller.” Rowe admitted that at the time of this letter, Miller had no legal authority to bind the estate in this agreement. On the same day as the letter to Madison, Rowe, purportedly acting in his professional capacity as an attorney, wrote a letter to himself as “Proposed Independent Executor.” This second letter contained virtually identical language to the one prepared for Madison except that, in this letter, the paragraph outlining the fee structure is presented in boldface type. This letter also was different from the letter to Madison in at least three other respects. First, Rowe’s letter to himself noted that “the estate does not have sufficient liquid assets to pay an hourly amount” and outlined a “total legal fee of 1/3 (one-third) of the value of the estate . . . if the estate is settled when the initial suit is filed.” Second, he wrote “a fee of 4/10 will be due if the administration is settled or concluded after suit for administration is filed and if further litigation is necessary for the administration of the estate.” Third, in this letter, Rowe also claimed a lien on real or personal estate property to guarantee the payment of attorneys’ fees. After the probate proceeding commenced, the probate court appointed Rowe as independent executor without bond on Jan. 6, 2003. Also on that day, Rowe wrote himself another letter to “ratify” the earlier “engagement letter” hiring himself as the attorney for the estate. The probate court admitted the will into probate unchallenged. The will did not provide for Rowe to receive a fee for his services, nor did it identify Rowe as a beneficiary. Rowe filed the inventory and appraisement on Aug. 13, 2004, over one year and seven months after he was appointed independent executor. The probate court approved the inventory on Sept. 1, 2004, but only as to assets. Subsequently, Rowe sold two parcels of the estate’s real property, paid himself nearly $100,000, and attempted to sell the last remaining piece of real estate. On April 12, 2006, Madison, the primary beneficiary of the estate, filed an ancillary action in the probate court to remove Rowe as independent executor, alleging Rowe was guilty of gross mismanagement of the estate. She requested that the probate court appoint a successor. Rowe filed an answer in the capacity of independent executor contesting the action and arguing Madison was estopped from filing the action. The probate court heard evidence respecting Miller’s motion on three different occasions. During the hearing, Rowe testified the testator gave him explicit oral instructions that, after his death, Rowe should sell all real estate holdings in the estate. Rowe testified the testator instructed him to hire himself as attorney for the executor of the estate. Also, Rowe testified she instructed him to use the proceeds from the sale of real estate to pay himself one-third of the value of the estate as compensation for his services, before distributing the proceeds to the beneficiaries. Rowe claimed that these instructions had been written down, but the writing was lost. Additionally, Rowe offered the testimony of Pamela Atchison, the testator’s grandniece, regarding statements allegedly made by the testator before his death about how he wanted his estate to be administered. Madison objected to Rowe’s questions on multiple grounds. The probate court sustained the objections and excluded Atchison’s testimony regarding the testator’s statements. However, Atchison was allowed to testify that there were written instructions from the testator last seen when the testator put them in his safe several years before his death; however, the instructions were not found after the testator’s death. However, after sustaining Madison’s hearsay objection, the probate court did not allow testimony on the content of these written instructions. The record reflects Rowe paid himself nearly $100,000 in legal fees before paying any beneficiaries. Madison presented unrebutted expert testimony that all probate work could have been performed in a period of six months or less at a cost of no more than $5,000. Additional evidence showed that Rowe failed to pay property taxes or correct code compliance violations on the real estate after receiving notices from the city. Accordingly, the city charged penalties to the estate, and the only remaining property in the estate was scheduled for foreclosure due to nonpayment of property taxes. Other evidence admitted in the record reflected Rowe lent $25,000 of the estate’s money to one of his own clients. The loan was not documented, had no due date, lacked an agreement to pay interest and lacked collateral. Rowe had not attempted to collect any payments on this loan at the time of the hearing. After hearing the evidence, the probate court signed an order removing Rowe as independent executor. Rowe filed a motion for new trial and included affidavits setting out what he and his corroborating witness would have testified to in court, had they been allowed, regarding the statements made by the testator before his death. The trial court overruled the motion for new trial. An appeal followed. HOLDING:Affirmed. In issue one, Rowe argued that the probate court erred in excluding evidence that he claimed would corroborate the existence of the oral instructions from the testator that Rowe should take a legal fee of one-third of the proceeds of the estate. Madison responded that application of the Statute of Frauds worked to exclude the evidence, and, because Rowe failed to make a bill of exceptions, he did not preserve the issue for appeal. Simply filing affidavits, the court stated, purporting to include the excluded evidence in the probate court’s record as part of the motion for new trial, does not create a bill of exceptions. Thus, the court found that because Rowe did not make a timely offer of proof before the probate court or file a formal bill of exceptions, he failed to preserve the issue for appeal. In issues two through five, Rowe complained of the probate court’s order removing him as independent executor and ordering reimbursement of the estate for attorneys’ fees paid to Rowe from the estate. First, the court found that Rowe failed to adequately brief and therefore waived his complaint that the probate court erred in failing to enforce contracts allegedly authorizing compensation from the estate for his legal services. Next, the court concluded that the probate court did not abuse its discretion when it removed Rowe as independent executor based on “gross mismanagement” of the estate. The court did so after finding that Rowe failed to challenge several fact findings supporting the removal of Rowe as independent executor based on instances of “gross mismanagement” in administering the estate. Moreover, the court found that the probate court’s action in removing Rowe could not be properly characterized as interference with Rowe’s discretionary powers. Texas Probate Code �149C(a)(5), the court stated, explicitly authorizes probate courts to remove an independent executor upon finding gross mismanagement. In addition to removing Rowe on the grounds of gross mismanagement, the probate court made findings that Rowe was not entitled to payment as an attorney, that the will did not provide for payments to Rowe and that Rowe did not apply to the probate court for any fees for serving as executor. The probate court also ordered Rowe to pay back the monies he had paid to himself. Such an order is within the power of the probate court, the court stated. Accordingly, the court could not conclude the probate court abused its discretion when it ordered Rowe to reimburse the estate for unauthorized payments made to himself from the estate. OPINION:Lang, J.; Moseley, Lang and Mazzant, JJ.

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