In Bean v. Bean, a dissenting co-executor sought relief from a probate court regarding whether certain assets were separate property or community property. No. 05-21-00286-CV, 2022 Tex. App. LEXIS 9058 (Tex. App.—Dallas December 13, 2022, no pet. history). Alan Lavern Bean was an astronaut during Apollo-era space programs. He owned 39 artifacts from his experience as an astronaut. Such “artifacts” were in his possession before his 1982 marriage to Leslie Bean. Alan consistently characterized the artifacts as his separate property, and Congress confirmed “full ownership” and “clear title” of such artifacts in 2012 when it enacted H.R. 4158. Notwithstanding, his wife Leslie was a co-executor and took the position that they were community property. Another co-executor disagreed, and they had a third co-executor appointed to break ties. The third co-executor agreed with Leslie, and the dissenting co-executor filed claims in the probate court challenging those decisions. The probate court agreed with the dissenting co-executor, and the majority appealed.

After a detailed review of the federal statute holding that artifacts were owned by the possessing astronauts, the court of appeals agreed with the probate court and held that the disputed 39 artifacts were he decedent’s separate property. Leslie also had another argument, that the trial court improperly reviewed this issue because he majority had the right to resolve construction issues under the will:

In a February 20, 2020 email to counsel, Tom interpreted HR 4158 and decided “title to space artifacts in Alan’s possession had not been vested in Alan prior to the date of House Bill 4158 and therefore constituted community property at his death.” Leslie asserts the probate court erred by disregarding Tom’s decision because that decision was “final and binding” pursuant to the Will. We disagree.

A provision in a will making the executor’s decision on disputed questions regarding the will’s construction binding on all interested parties is generally valid. Nations v. Ulmer, 139 S.W.2d 352, 356 (Tex. App.—El Paso 1940, writ dism’d). Such decisions by the executor, if fairly and honestly made and reasonably susceptible to the terms of the will, are binding and final on all interested parties. Id.; Key v. Metcalf, No. 14-04-00782-CV, 2006 Tex. App. LEXIS 1271, 2006 WL 348149, at *2 (Tex. App.—Houston [14th Dist.] Feb. 16, 2006, no pet.) (mem. op.). However, a gross departure from the testator’s intent cannot be considered an honest endeavor by the executor to determine that intent. Pray v. Belt, 26 U.S. (1 Pet.) 670, 680, 7 L. Ed. 309 (1828). The executor’s construction of the will is subject to court review “[i]f an unreasonable use be made of such a power so given in a will, one not foreseen, and which could not be intended by the testator . . . .” Id. Such is the case here.

Id. The court of appeals then held that the tie-breaker co-executor was not reasonable, and that notwithstanding, that the probate court had the right to resolve legal issues:

Throughout his life, Alan consistently maintained that his space artifacts and mementos were his separate property. This was central to his property settlement with Sue and the prenuptial agreement with Leslie. He vehemently reiterated this view in the Will. Indeed, the Will included fifteen pages of detailed explanations and instructions concerning Alan’s space artifacts and mementos. Alan adamantly believed his space artifacts and mementos were his separate property and explicitly provided those items should remain his separate property and be distributed after his death per his instructions in the Will. Tom’s decision to characterize all of Alan’s space artifacts and mementos as community property directly contradicts Alan’s stated intent. The decision is such a gross departure from Alan’s intent that it cannot be considered an honest endeavor by Tom to determine that intent. Further, there is some evidence to support a finding that Tom acted with bias toward Amy and in favor of Leslie. In his affidavit, Tom testified he knew his role was to determine disputes fairly. However, he also conceded that he viewed his role was to protect Leslie because Alan knew Amy “was often tough on and in disagreement with Leslie.” This evidence of slight bias in favor of Leslie further supported the probate court’s decision to review Tom’s determination of how to characterize the 39 Space Artifacts.

Moreover, the probate court properly disregarded Tom’s decision. Not only does the decision directly contradict Alan’s stated intent, but the decision is a legal one properly delegated to the probate court. The Will provided for Tom to break ties concerning issues related to the administration of the estate on which Leslie and Amy could not agree. That tie-breaker role does not explicitly or implicitly provide Tom with the authority to make legal decisions such as determining Alan’s intent or applying a legal characterization to property of the estate. Tom is not an attorney and lacks the education and training to interpret a federal statute and determine its legal meaning. Amy had a right to have such decisions addressed by the probate court.

Id. The court of appeals affirmed the trial court’s judgment.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law