In In re Mittelsted, a trial court held a former executor in contempt for over twenty acts of commingling personal property with estate property and ordered that the executor pay over $200,000 to avoid contempt. No. 14-22-00274-CV, 2023 Tex. App. LEXIS 1014 (Tex. App.—Houston [14th Dist.] February 16, 2023, original proceeding). The executor filed a petition for writ of mandamus. The court of appeals first discussed the fiduciary duties of an executor:
Upon death, a decedent’s estate immediately vests in the devisees, legatees, and heirs at law of the estate, subject to payment of the decedent’s debts. Managing or administering a decedent’s estate is an executor’s core function. Because an executor holds and manages property interests of others, he or she serves as a trustee and is held to the highest standards of conduct. As trustee of an estate’s property, an executor is subject to the fiduciary standards applicable to all trustees. An independent executor owes fiduciary duties not only to the estate but to the estate’s beneficiaries as well. The universe of an executor’s fiduciary obligations includes a duty to exercise reasonable care in the administration of the estate property, and a duty to avoid commingling of estate funds with non-estate assets, including the executor’s personal property.
Id. (internal citations omitted). The court then addressed commingling by a trustee/executor:
Commingling personal assets with trust assets constitutes a breach of trust, and courts have developed certain principles concerning the identification of trust property when commingling occurs. For example, a party alleging that a trustee commingled funds has the initial burden to show that commingling has in fact occurred. When it is shown that a trustee commingled trust property with his own, the trustee then has the burden to distinguish his or her funds from those of the beneficiary, and if the trustee cannot do so, the whole commingled fund or the property purchased with that fund becomes subject to a trust in favor of the beneficiary. This tracing burden belongs to the trustee because it would be inequitable to place the burden on the party asserting the trust when the trustee has wrongfully commingled his own funds with trust funds, especially when the proof necessary to distinguish the funds is peculiarly within the knowledge and possession of the trustee. When a trustee withdraws from an improperly commingled fund, however, the trustee is presumed to have withdrawn or expended his own money first. This is true so long as sufficient funds remain in the commingled account to cover the amount of trust property or to identify that which belongs to the trust.
The court then analyzed the alleged commingling and held that there were several instances of it, but that there were other instances that were not supported. The court held that the contempt order was void:
The court assessed one coercive penalty for all twenty-two contemptuous acts, requiring Donovan to pay $287,457 to purge himself of contempt. “If one punishment is assessed for multiple acts of contempt, and one of those acts is not punishable by contempt, the entire judgment is void.'” Because Donovan’s challenged transfers from his IRA Account and Brokerage Account are not punishable by coercive contempt, we hold that the trial court’s entire civil contempt order is void. Further, because the order does not allocate the $287,457 amount based on separate contemptuous acts and otherwise contains no findings to support a lesser coercive contempt penalty, we are unable to reform the order or sever any valid portion from the remainder.