In the Estate of Stacy Lynn Fuchsman v. the State of Texas

majority opinion

In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

No. 02-25-00218-CV

IN RE ESTATE OF STACY LYNN FUCHSMAN, DECEASED

On Appeal from Probate Court No. 1

Denton County, Texas

Trial Court No. PR-2022-00863-A

Before Kerr, Birdwell and Wallach, JJ.

Opinion by Justice Birdwell

OPINION

Appointed to act as the Dependent Administrator for the Estate of Stacy Lynn

Fuchsman, Deceased, Appellant David M. Pyke sought the probate court’s approval

and award of a five percent statutory commission on qualifying cash disbursements and

receipts, including the net cash proceeds received from the sales of two residential

properties comprising almost the entirety of the corpus of the Estate. See Tex. Est. Code

§ 352.002(a). Finding that the proposed commission would be unjust and unreasonable

because the Estate had already paid sales commissions of five percent to real estate

agents or brokers to sell these residential properties, see id. § 352.004, the probate court

awarded Pyke a commission solely on qualifying cash disbursements; the court awarded

no commission whatsoever on any qualifying cash receipts, including the net cash

proceeds from the sales of these properties. The probate court thereafter entered an

order (1) approving Pyke’s final account of the Estate, (2) authorizing payment of an

administrator’s commission on qualifying cash disbursements only, (3) authorizing

payment of attorney’s fees and expenses to Pyke and another law firm, and (4) ordering

disbursement to the decedent’s heirs of all funds remaining in the Estate after such

payments. Because we hold that, as a matter of law, the probate court abused its

discretion by denying Pyke any commission on qualifying cash receipts due to the

payment of real estate agent or brokerage commissions on the sales of the real property

owned by the Estate, we reverse and render judgment awarding the statutory

commission Pyke sought on all qualifying cash receipts.

I. Background

Fuchsman died intestate on June 3, 2021. In June 2022, Appellee Alexis Wahlen

filed for a determination of heirs, an independent administration, and for letters of

administration, claiming to be the owner of all or part of her aunt’s estate and identifying

herself, her brother Hunter Wahlen, and her sister Appellee Sabrina Wahlen as their

aunt’s only heirs. 1 As part of the corpus of the Estate, the application identified two

For the sake of clarity, we will refer to the Wahlens by their given names. Alexis and Sabrina are nominal appellees due to their status as heirs, but they neither objected in the probate court to the commission sought by Pyke nor filed responsive briefs in opposition to his appeal.

As will be discussed in more detail below, Hunter passed away during Pyke’s administration of the Estate, but Hunter’s father, Paul Wahlen, filed an objection to Pyke’s commission identifying himself as the dependent administrator of his son’s estate. Nevertheless, Paul has not filed a responsive brief in opposition to Pyke’s appeal, but that omission may be because, according to the order approving Pyke’s final account of his administration, the probate court ordered that a one-third share of the remaining funds in the Estate be disbursed by Pyke, as the Dependent Administrator of the Estate of Stacy Lynn Fuchsman, to Pyke, as the Dependent Administrator of the Estate of Hunter Thomas Wahlen, thereby leaving Pyke in the apparently conflicting positions of both appellant and appellee on the merits of this appeal. See Pine v. Deblieux, 405 S.W.3d 140, 142 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (observing successor administrator who filed motion for summary judgment seeking declaration that certain assets of her father’s estate were not subject to administration demonstrated potential conflict by failing to respond to her own motion on behalf of the estate).

Although we normally may accept as true all factual assertions in an appellant’s brief that remain unchallenged by an appellee, due to Pyke’s dual standing as both appellant and appellee, we will assume each factual statement in his appellant’s brief is contested. Cf. Lorant v. 2016 Parkview Condos. Dev. LLC, No. 02-22-00032-CV, 2022 WL 16845110, at *3 n.8 (Tex. App.—Fort Worth Nov. 10, 2022, no pet.) (citing Rancher v. Franks, 269 S.W.2d 926, 927–28 (Tex. App.—Fort Worth 1954, no writ) (“In her brief appellant says that appellees filed no motion for judgment non obstante veredicto. Since

pieces of real property—one in Carrollton, Texas, and one in Plano, Texas—and

estimated their value at $335,900.00 and $369,200.00, respectively. The Carrollton

property was a rental property, and the Plano property was the decedent’s personal

residence. Alexis represented that Hunter and Sabrina agreed that there was a need for

an independent administration of their aunt’s estate and that she should be appointed

the independent administrator. Hunter and Sabrina subsequently filed formal

appearances confirming their agreement to the proposed administration and

appointment.

In June 2023, Alexis filed her First Amended Application seeking the

appointment of Pyke as the dependent administrator for her aunt’s estate. Hunter and

Sabrina contemporaneously confirmed their agreement with Pyke’s proposed

appointment. The amended application made no changes to the estimated valuations

of the Carrollton and Plano properties.

On August 9, 2023, the probate court entered its Judgment Declaring Heirship,

declaring Alexis, Hunter, and Sabrina as Fuchsman’s sole heirs and awarding each onethird shares in the real and personal property of the Estate. The same day, the court

entered an order granting the requested dependent administration, appointing Pyke as

the Estate’s dependent administrator and, upon the taking and filing of his oath and

approval of his $400,000.00 bond, issuing him letters of dependent administration.

that statement is unchallenged, this Court is not required to look to the record but may accept appellant’s statements as true.”)).

Critically, the order further expressly forbade Pyke from selling or disposing of estate

assets “without the authorization and approval of the Court which, if granted, will be

authorized by a separate written order of this Court.” Pyke thereafter filed the required

oath and bond.2

In December 2023, Pyke filed an Inventory, Appraisement, and List of Claims

in the probate court that appraised the Carrollton and Plano properties at $265,000.00

and $390,268.00, respectively, representing virtually one hundred percent of the value

of the corpus of the Estate. The probate court approved the filing.

In April 2024, Pyke filed applications with the probate court for authority to sell

the Carrollton and Plano properties by listing them through a licensed real estate broker.

The appraisals he filed with the applications valued the properties at $310,000.00 and

$380,000.00, respectively. The next month, the probate court entered orders

authorizing the sale of the properties, including approval of “a realtor’s commission

rate not to exceed a total of 5%.”

In July 2024, Pyke filed a report proposing the sale of the Carrollton property

for $265,000.00 in cash, attaching for the probate court’s approval the proposed

contract for sale and seller’s settlement statement. The seller’s settlement statement

included a five percent commission for the listing agent of $13,250.00. The probate

court thereafter entered a decree approving and confirming the sale of the Carrollton

Pyke subsequently filed a new bond in the amount of $520,000.00 to cover an anticipated increase in the value of the Estate due to the sale of the Plano property.

property as reported, finding that the sale was in the best interest of the Estate. See id. §

356.556(a) (authorizing approval of proposed sale of real property if proposed sale is

“for a fair price, properly made, and in conformity with law”).

In September 2024, Pyke filed his First Annual Account documenting his

activities as dependent administrator. The accounting confirmed the sale of the

Carrollton property for $265,050.00,3 the probate court’s approval thereof, including

the payment of a five percent commission ($13,250.00) to the real estate agent who

brokered the sale, and net cash proceeds from the sale—after payment of the

commission, taxes, and title and closing costs—of $223,416.47. Pyke also notified the

probate court that he would be seeking a statutory administrator’s commission on the

net cash proceeds by separate filing.

Contemporaneously with the First Annual Account filing, Pyke filed an

application for an administrator’s commission pursuant to Section 352.002(a) of the

Texas Estates Code. He sought a five percent commission on all cash received and paid

out during the annual accounting period for a total commission of $12,298.13. This

amount included, among other receipts and disbursements, a five percent commission

on the net cash proceeds received from the sale of the Carrollton property ($223,416.47

x .05 = $11,170.82). In support of the total commission sought, Pyke recounted the

The $50.00 difference between the report proposing the sale of the Carrollton

property for $265,000.00 and the accounting confirming the property’s sale for $265,050.00 is a “Non-Refundable Option Fee (retained by Seller).”

valuable administration services he had provided to the Estate during the accounting

period.

On November 5, 2024, the probate court entered an order approving Pyke’s First

Annual Account and, having audited the accounting, finding it in compliance “with the

law in every respect.” Later that month, Pyke filed a report proposing the sale of the

Plano property for $315,000.004 in cash, attaching for the probate court’s approval the

proposed contract for sale and seller’s settlement statement. The seller’s settlement

statement included a three percent commission for the listing agent of $9,600.00 and a

two percent commission for the selling agent of $6,400.00—representing a five percent

overall sales commission of $16,000.00. After deducting these commissions, taxes, title

and closing costs, and certain homeowners’ association (HOA) fees, the net cash

proceeds to the Estate on the seller’s settlement statement amounted to $254,010.04.

On November 25, 2024, the probate court entered a decree approving and confirming

the sale of the Plano property as proposed, finding that the sale was in the best interest

of the Estate.

The very same day, the probate court entered an order denying the five percent

administrator’s commission sought by Pyke on the net cash proceeds from the sale of

the Carrollton property, finding that “the administrator [had already] paid a five percent

Pyke’s Report of Sale of Real Property concerning the Plano property states that “[t]he sales price of the Property to be sold is $320,000.00, but a seller’s concession of $5,000 makes the effective purchase price $315,000.”

commission to a realtor acting as an agent of the estate for the sale of the subject real

property.” The court’s order did not, however, address the commission sought on all

other cash receipts and disbursements during the first annual accounting period, nor

did it reference any objection from Alexis, Hunter, or Sabrina.

In January 2025, after the sale of the Plano property, Pyke filed an amended

report and seller’s settlement statement of the sale explaining that, due to an

administrative error by the title agent, the seller’s settlement statement had not included

a payoff amount for outstanding fees owed to the HOA in the amount of $17,309.00,

which had been paid by Pyke out of the cash proceeds received by the Estate, reducing

the projected net recovery from the transaction from $250,010.04 to $236,810.82. As a

result, Pyke sought the probate court’s approval of the HOA payment as an expense of

the Estate. Shortly thereafter, the court entered an order approving and authorizing the

HOA payment.

On February 21, 2025, Pyke filed his Final Account for his administration of the

Estate. The accounting confirmed the sale of the Plano property, including the receipt

of $254,119.82 in “net proceeds received,” and the subsequent payment of the

$17.309.00 outstanding HOA fees as a cash disbursement. With no outstanding debts

or taxes to be paid and absent any remaining property in the Estate’s corpus, Pyke

reported the total value of the Estate on final accounting to be $469,326.60 in cash on

hand.

On the same day he filed his Final Account, Pyke filed an application for an

administrator’s commission (1) asking the probate court to reconsider its denial of his

previous application for $12,298.13; (2) seeking a five percent commission on the net

cash proceeds received from the sale of the Plano property in the amount of $12,705.99;

and (3) requesting a five percent commission on the net disbursements made during

the final accounting period in the amount of $1,105.43, for a total administrator’s

commission of $26,109.55. Given that this amount did not exceed, in the aggregate,

five percent of the gross fair market value of the Estate ($657,728.00 x .05 =

$32,866.40), Pyke observed that the total commission sought did not violate the cap on

commissions imposed by Section 352.002(b)(1). See id. § 352.002(b)(1).

Pyke also argued that the probate court’s denial of the statutory commission on

the net cash proceeds from the sales of the Carrollton and Plano properties due to the

payment of realtor’s commissions approved by the court was a misinterpretation or

misapplication of Section 352.002(a), which does not grant the courts such discretion.

And alternatively, Pyke argued that, even if the court’s interpretation of the code was

correct, his efforts on behalf of the Estate warranted a commission more than the

statutory cap.

On March 4, 2025, Hunter’s father, Paul, identifying himself as the Dependent

Administrator of the Estate of Hunter Thomas Wahlen,5 filed an objection to Pyke’s

Although Paul had previously sought reimbursement from the Estate for the

expense of retaining the services of a forensic genealogist, this is the first indication that

application for an administrator’s commission urging the probate court to deny the

requested commission on the proceeds from the sales of the Carrollton and Plano

properties because the commission request, in addition to the realtor’s commissions

already paid, was unreasonable. Ten days later, Pyke, also identifying himself as the

Dependent Administrator of the Estate of Hunter Thomas Wahlen, filed a Waiver of

Service for the Account for Final Settlement he had filed as the Dependent

Administrator for the Estate of Stacy Lynn Fuchsman.

The probate court conducted a hearing on the Final Account and Pyke’s

application for an administrator’s commission on April 7, 2025. During the hearing,

Pyke urged the probate court to reconsider its previous ruling that disallowed any award

of a statutory commission because he had hired a realtor to sell the properties, arguing

that nothing in the language of the statute provided the court with the discretion to

disallow the commission and that in doing so in this instance “virtually the entire

statutory calculation would be eliminated.” He also observed that the heirs had

expressly requested that he hire a realtor and noted that having access to list the

properties “on MLS” required hiring a realtor.6 Pyke further testified that certain

Hunter had died. There is no suggestion of death in the record reflecting when Hunter died, however, or any documentation demonstrating Paul’s appointment as the dependent administrator of his son’s estate.

“MLS stands for ‘Multiple Listing Service,’ a tool to facilitate real estate transactions nationwide developed and maintained by real estate professionals.” Harris Cnty. Appraisal Dist. v. Integrity Title Co., 483 S.W.3d 62, 65 n.1 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (citing Nat’l Ass’n of Realtors, Multiple Listing Service (MLS):

difficult aspects of his administration would go uncompensated by disallowing the

commission he sought:

This estate consisted of some cash that I had to endeavor to locate,

personal property of very little value other than a vehicle. The houses had

to be cleaned out and prepared to sell, exhaustive search through business

records at the house that were in no organized format whatsoever, dealing

with tax issues, seeking information from the IRS to find bank accounts,

and then selling the two pieces of real property which were far and away

the gross value of the estate. So if those were deducted -- if the proceeds

of those sales were deducted, the commission would be significantly unfair

to me and not represent fair compensation for an estate where there’s

been no allegation that I’ve mishandled the estate in any way.

In response, counsel for Paul did not contest Pyke’s representation that the heirs

had requested a realtor to facilitate the sales of the properties and expressly stated that

neither she nor her client was asserting any allegation of mismanagement of the Estate

by Pyke; indeed, counsel thanked Pyke for “all of his work” in the case.7 Instead,

What Is It, http://www.realtor.org/topics/nar-doj-settlement/multiple-listing-servicemls-what-is-it (last visited July 27, 2026)); see Tucker v. Bedgood, No. 13-16-00433-CV, 2016 WL 7011584, at *5 n.4 (Tex. App.—Corpus Christi–Edinburg Dec. 1, 2016, no pet.) (describing a Multiple Listing Service (MLS) as “a service used by realtors . . . to facilitate real estate transactions and publicly document the details of those transactions”), disapproved on other grounds by Agar Corp. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136 (Tex. 2019); Pleasant v. Bradford, 260 S.W.3d 546, 550 (Tex. App.—Austin 2008, pet. denied) (“An MLS listing contains a variety of information about a house and notifies fellow realtors that the house is for sale.”); Newman v. McClure, 459 S.W.2d 703, 704 (Tex. App.—Fort Worth 1970, no writ) (describing MLS as an organization of local realtors entitling members “to render broker services upon property under otherwise exclusive listings of fellow members”).

Counsel even extended her appreciation and gratitude to Pyke’s dependent administration of Hunter’s estate, confirming that Pyke had already been so appointed by the time of this hearing.

counsel argued that she agreed with the probate court’s earlier ruling disallowing the

statutory commission Pyke sought in his annual account after the sale of the Carrollton

property, suggesting that other statutory probate courts “around the state” similarly

disallowed such commissions when the sale of real property included the payment of a

realtor’s commission by an estate. Counsel conceded that she did not think Pyke

“should not be compensated for his work” but simply thought the payment of a

“double commission” on the sales of the Carrollton and Plano properties was not

proper.

The probate court thereafter clarified the distinct amounts paid for realtor

commissions, for attorney’s fees and legal expenses incurred during the first annual

reporting period, and for an administrator’s commission on cash disbursements—

although Pyke informed the court that the latter had not yet been paid. The probate

court also recalled its reasoning from the first hearing on Pyke’s original application in

which it had declined to authorize the commission sought because “professional fees

[had already been] paid out” on the Carrollton property transaction and the court’s

standard permitted only one commission paid per transaction.

When the probate court inquired whether any other jurisdiction awarded both

realtor’s and administrator’s commissions on the same transaction, Pyke indicated that

probate courts in Dallas County and Ellis County had done so. Pyke also clarified that

the administrator’s commission he sought was distinct and separate from the attorney’s

fees and legal expenses he requested as well as from the brokerage commissions paid

to the realtors:

The reason I would quibble with how your Honor worded the issue, I

don’t seek commission on a transaction. I seek commission as an

administrator. The reason I don’t think -- that that’s an important

distinction is there are all sorts of activities that an administrator does that

are not compensable by the statutory calculation. For example, the fact

that I had to search in this case for a bank account, finally find a bank

account, and go sit in the office of the bank for hours to get control of

that bank account is not a commissionable activity per the statute.

Retrieving a bank account is not commissionable activity. There’s all sorts

of activities like that. Tax compliance. Other than writing the check itself

is not commissionable activities. So whether it is -- It’s not just related to

the transaction. It is all of your services are compensated what could be

considered an arbitrary formula, but it is the formula the statute gives us.

And I think it’s important that the statute caps compensation so that that’s

not abused. It cannot be more than five percent of the gross value of the

estate. So that’s, I think, the check on compensation being fair. Thank you

for the opportunity to clarify.

Nevertheless, the probate court held that adding the realtor’s and administrator’s

commissions together constituted a ten percent commission on the sales of the

properties, depleting the Estate of approximately $53,000.00 in violation of the statute.

On April 8, 2025, the probate court entered an order granting Pyke’s application

for administrator’s commission in part and denying it in part. In its order, the court

expressly found that Pyke had “taken care of and managed the Estate in compliance

with the standards set forth in the Texas Estates Code.” Nevertheless, the court found

good cause to sustain the objection of Paul—whom the court expressly recognized as

the dependent administrator of Hunter’s estate—and found that the requested amount

of $26,209.55[8] was “unreasonable and unjust.” Observing that it had previously denied

Pyke a statutory commission on the sale of the Carrollton property due to the payment

of a five percent realtor’s commission on that transaction, the probate court denied

Pyke a statutory commission on the sale of the Plano property for the same reason—

finding that allowing such commission in addition to the five percent realtor’s

commissions on these transactions “would result in total commissions paid on each

transaction to be in excess of five percent (>5%)” and citing Section 352.002(b)(1) of

the Estates Code for authority. Instead, the court approved and awarded Pyke an

administrator’s commission of $2,027.74 solely on “actual disbursements” subject to

commission, leaving cash receipts other than the real estate transactions—for example,

for the sale of the decedent’s car—completely uncompensated.

The probate court subsequently entered an order approving the final account of

the Estate. In the order, the court ordered the payment of (1) $2,027.74 for the statutory

commission on cash disbursements it had previously awarded to Pyke, (2) $5,713.27 in

attorney’s fees and expenses for legal services provided by Pyke to the Estate separate

and distinct from his administration, 9 and (3) $7,994.81 in attorney’s fees and expenses

This amount appears to be a typographical error in the trial court’s order, as Pyke had requested a total administrator’s commission of $26,109.55.

At the beginning of his administration, Pyke filed a notice with the probate court that, as a licensed attorney who anticipated providing legal services to the Estate in addition to his services as administrator, he intended to seek dual compensation as both attorney and administrator. Pyke then sought attorney’s fees and expenses in the amount of $12,794.21 during the first annual reporting period, which the court reduced

for legal services provided by another law firm to Alexis.10 Conditioned upon payment

of these amounts, the probate court ordered the disbursement of the balance of the

corpus of the Estate—all cash—in equal thirds to Alexis, Sabrina, and Pyke, now

expressly identified by the court as the Dependent Administrator of the Estate of

Hunter Wahlen, Deceased. Upon this final distribution to the heirs, the court ordered

Pyke to file a Report of Compliance and Application to Close and Discharge the

Administrator.

Pyke timely filed a notice of appeal expressly complaining of the probate court’s

April 8, 2025 order granting in part and denying in part his application for an

administrator’s commission and contending that this was a final judgment “as no

further orders granting or denying commissions will be entered.”

II. Jurisdiction

“At the outset, we take up a question of jurisdiction, because we must consider

our jurisdiction sua sponte when it seems in doubt.” In re Est. of Banta, No. 02-21-00327-CV, 2022 WL 2526940, at *1 (Tex. App.—Fort Worth July 7, 2022, pet. denied).

to an award of $10,451.71. Pyke subsequently sought $6,288.27 in attorney’s fees and legal expenses for the final accounting period, which the probate court reduced to an award of $5,713.27. In seeking an administrator’s commission for the first annual and final accounting periods, Pyke explained how his legal fees and commission represented separate forms of compensation for distinct services provided.

This amount represents the full amount of attorney’s fees and legal expenses sought by Alexis, who retained another law firm to represent the heirs before and during the administration. The probate court awarded the amount without reduction.

“‘Courts are empowered to note potential jurisdictional defects sua sponte,’ and by

doing so, a court ‘discharges its duty to ensure that the court itself is functioning in an

authorized and properly judicial capacity.’” Hidalgo Cnty. Water Improvement Dist. No. 3 v.

Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178, 185 (Tex. 2023) (quoting Rattray v.

City of Brownsville, 662 S.W.3d 860, 867, 869 (Tex. 2023)). Stated differently, we are

obligated to examine and resolve any question that arises concerning our jurisdictional

authority to address and determine the merits of an appeal even when the parties to the

appeal neither perceive its absence nor challenge its existence. See Pike v. Tex. EMC

Mgmt., LLC, 610 S.W.3d 763, 774 (Tex. 2020); M.O. Dental Lab v. Rape, 139 S.W.3d 671,

673 (Tex. 2004); Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex. App.—

Fort Worth 2016, no pet.) (“We are required to review sua sponte jurisdictional issues.”);

St. Louis Sw. Ry. v. Elliston, 128 S.W. 675, 675 (Tex. App.—Fort Worth 1910, no writ)

(“The court will of its own motion notice this fact of its want of jurisdiction.”).

By way of his notice of appeal, Pyke asserted that the order made the subject of

his appeal was the order the probate court entered granting in part and denying in part

his application for administrator’s commission. After we sent a letter to Pyke

questioning the finality and appealability of that order, see Tex. R. App. P. 42.3(a)

(authorizing courts of appeals to dismiss for lack of jurisdiction sua sponte after

providing the parties with ten days’ notice), he timely filed an amended notice of appeal

adding the probate court’s order approving his final account—which incorporated the

essential elements of the commission order—as the subject of his appeal and arguing

that these orders, viewed together, should be analogized to orders granting or denying

requests for attorney’s fees that have been held to be final and appealable. See In re Est.

of Harris, No. 02-19-00333-CV, 2021 WL 832721, at *4 (Tex. App.—Fort Worth Mar. 4,

2021, pet. denied) (holding that an order awarding attorney ad litem fees or terminating

attorney ad litem’s representation “concludes a discrete phase of the probate

proceeding” and is subject to appeal); Wittner v. Scanlan, 959 S.W.2d 640, 642 (Tex.

App.—Houston [1st Dist.] 1995, writ denied) (“[W]e hold that the order awarding

attorney’s fees to [the administrator of the decedent’s estate] is final for the purposes

of appeal.”).

But we have previously held that we lack jurisdiction to hear an appeal from an

order approving an account for final settlement, interpreting the order as merely an

intermediate step toward closing the estate and not a final, appealable order. In re Est.

of Froehle, No. 02-18-00003-CV, 2018 WL 2440388, at *1 (Tex. App.—Fort Worth May

31, 2018, no pet.) (first citing In re Est. of Scott, 364 S.W.3d 926, 927–28 (Tex. App.—

Dallas 2012, no pet.) (concluding that order approving account for final settlement that

authorized distribution of the estate pursuant to a determination of heirship and that

specified additional steps necessary to close the estate—including the filing of proper

receipts and an application for discharge of the administrator and closure of the

estate—was not final and appealable); then citing Bozeman v. Kornblit, 232 S.W.3d 261,

264 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (determining that order approving

account for final settlement and specifying additional steps for closing the estate—such

as payment of attorney’s fees awarded by a separate order, delivery of property and

funds to the heirs according to a prior judgment of heirship, and filing an application

to close the estate—was not final and appealable); then citing In re Est. of Aguilar, No.

04-16-00250-CV, 2016 WL 3944817, at *1 (Tex. App.—San Antonio July 20, 2016, no

pet.) (concluding that order approving final account was not final and appealable but

dismissing appeal for want of jurisdiction upon appellants’ motion); and then citing In re

Est. of Waddell, No. 13-13-00202-CV, 2013 WL 1932173, at *1 (Tex. App.—Corpus

Christi–Edinburg May 9, 2013, no pet.) (holding that order approving annual account

and authorizing expenditures was not final and appealable)). But see Jarvis v. Feild, 327

S.W.3d 918, 930–32 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.) (addressing

“Order Approving Account for Final Settlement”—an order regarding both asset

valuation and final distribution to heirs of estate—as final and appealable). Given the

addition of the order approving Pyke’s final account as a subject of his amended notice

of appeal, we sent a second letter to him questioning our jurisdiction considering Estate

of Froehle.

Pyke responded with additional briefing expounding on the authorities he

previously cited and distinguishing the factual circumstances present in Estate of Froehle

from those here because, unlike in Estate of Froehle, Pyke’s final account was found by

the probate court’s order, after audit, to comply with the law, leaving only the

distribution of the remaining assets of the Estate to the heirs, after which Pyke was to

file a report confirming such distribution and a motion seeking discharge as the

dependent administrator and the closing of his administration. Based on this briefing,

we opted to carry the question of our jurisdiction with the case and ordered the parties

to include in their merits briefs arguments and authorities addressing the question. 11

“The general rule, with a few mostly statutory exceptions, is that an appeal may

be taken only from a final judgment.” In re Est. of Tacke, No. 02-14-00400-CV, 2015 WL

1543912, at *2 (Tex. App.—Fort Worth Apr. 2, 2015, no pet.) (citing Lehmann v. Har–

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). A judgment is not ordinarily final for

purposes of appeal unless the judgment disposes of all pending parties and claims in

the record. Id. One of the statutory exceptions to this general rule, however, exists in

probate cases. Tex. Est. Code § 32.001(c) (“A final order issued by a probate court is

appealable to the court of appeals.”); see In re Est. of Wheatfall, 729 S.W.3d 788, 790–91

(Tex. 2026); De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (op. on reh’g); Crowson

v. Wakeham, 897 S.W.2d 779, 781 (Tex. 1995). In probate proceedings, “multiple

judgments final for purposes of appeal can be rendered on certain discrete issues.”

De Ayala, 193 S.W.3d at 578; In re Est. of Heffner, No. 02-21-00419-CV, 2023 WL

3876760, at *2 (Tex. App.—Fort Worth June 8, 2023, pet. denied).

When Pyke filed his appellant’s brief, he did not provide the additional briefing requested. Nor did he file any responsive appellee’s brief as the dependent administrator of Hunter’s estate, let alone any briefing in opposition to our jurisdiction. By correspondence, Alexis declined to file a responsive brief to avoid additional legal fees. Sabrina simply did not respond.

“A probate proceeding consists of a continuing series of events, in which the

probate court may make decisions at various points in the administration of the estate

on which later decisions will be based.” Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.

App.—Austin 2000, pet. denied); see Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex.

App.—Fort Worth 1987, order) (“The nature of ‘administration’ contemplates

decisions to be made on which other decisions will be based.”). As a result, “[t]he need

to review controlling, intermediate decisions before an error can harm later phases of

the proceeding justifies modifying the one[-]final[-]judgment rule with respect to

probate cases.” Tacke, 2015 WL 1543912, at *2 (citing Logan, 21 S.W.3d at 688); see In re

Est. of Romo, 469 S.W.3d 260, 262 (Tex. App.—El Paso 2015, no pet.) (same); Spies v.

Milner, 928 S.W.2d 317, 318–19 (Tex. App.—Fort Worth 1996, no writ) (quoting

Christensen, 740 S.W.2d at 74 (“There must be a practical way to review erroneous,

controlling, intermediate decisions before the consequences of the error do irreparable

injury.”)).

To determine whether an order is final and appealable under Section 32.001(c),

the Supreme Court of Texas has promulgated the following test:

If there is an express statute . . . declaring the phase of the probate

proceedings to be final and appealable, that statute controls. Otherwise, if

there is a proceeding of which the order in question may logically be

considered a part, but one or more pleadings also part of that proceeding

raise issues or parties not disposed of, then the probate order is

interlocutory.

Crowson, 897 S.W.2d at 783; see Wheatfall, 729 S.W.3d at 791 (reaffirming the Crowson test

for finality in probate proceedings); De Ayala, 193 S.W.3d at 578 (same); In re Est. of

Turnbow, No. 02-20-00243-CV, 2021 WL 4898663, at *2 (Tex. App.—Fort Worth Oct.

21, 2021, no pet.) (same). “An order that merely sets the stage for the resolution of

proceedings is interlocutory and not appealable.” Tacke, 2015 WL 1543912, at *3 (citing

De Ayala, 193 S.W.3d at 579).

“To apply either part of the Crowson test, we must first identify the phase of the

probate proceeding at issue.” In re Est. of Wilson, No. 02-06-00075-CV, 2006 WL

2986566, at *2 (Tex. App.—Fort Worth Oct. 19, 2006, no pet.); see In re Est. of Lynch,

No. 07-26-00054-CV, 2026 WL 916625, at *2 (Tex. App.—Amarillo Mar. 31, 2026, no

pet.) (“Applying that framework requires identification of the relevant phase of the

probate proceeding.”). Unfortunately, “evaluating what constitutes a ‘particular phase’

of a probate proceeding is less straightforward than it appears.” Wheatfall, 729 S.W.3d

at 791. But because the Crowson test does not limit the term “phase” to the completion

of a mere timeframe or stage of a probate proceeding and clearly contemplates a

substantive component, we must look not only to when the challenged ruling or order

occurred during the probate proceeding but also to its substantive nature, i.e., whether

future rulings and orders necessarily rely on its correct determination. See Tacke, 2015

WL 1543912, at *2 (observing probate exception to one-final-judgment rule permits

appellate review and correction to avoid irreparable harm of mistaken ruling later in

proceedings); Logan, 21 S.W.3d at 688 (same); Spies, 928 S.W.2d at 318–19 (same);

Christensen, 740 S.W.2d at 74 (same). With this understanding, a controlling, intermediate

decision concerning what compensation should be awarded to an executor or

administrator for the administration of a decedent’s estate, if any, appears to constitute

a discrete or particular phase of probate proceedings subject to appeal pursuant to

Section 32.001(c). See Lynch, 2026 WL 916625, at *2 (concluding determination of

executor’s compensation is discrete phase of probate proceeding when coupled with

executor’s removal for maladministration); see also Harris, 2021 WL 832721, at *4

(concluding determination of attorney ad litem’s compensation is discrete phase of

probate proceeding when coupled with termination of ad litem’s representation).

Section 352.002(a) authorizes a five percent commission to executors and

administrators as compensation for their administration of an estate:

An executor, administrator, or temporary administrator a court finds to

have taken care of and managed an estate in compliance with the standards

of this title is entitled to receive a five percent commission on all amounts

that the executor or administrator actually receives or pays out in cash in

the administration of the estate.

Tex. Est. Code § 352.002(a). “The commission . . . may not exceed, in the aggregate,

more than five percent of the gross fair market value of the estate subject to

administration[.]” Id. § 352.002(b)(1).

A commission is not allowed, however, for

(A) receiving funds belonging to the testator or intestate that were, at

the time of the testator’s or intestate’s death, either on hand or held for

the testator or intestate in a financial institution or a brokerage firm,

including cash or a cash equivalent held in a checking account, savings

account, certificate of deposit, or money market account;

(B) collecting the proceeds of a life insurance policy; or

heir or legatee.

Id. § 352.002(b)(2); see Terrill v. Terrill, 189 S.W.2d 877, 878 (Tex. App.—San Antonio

1945, writ ref’d) (disallowing five percent commission on receipt of $600 in cash for

redemption of USPS Savings Stamps of same face value because stamps constituted

cash on hand at the time of decedent’s death).

Finally, Section 352.004 authorizes the probate court to “wholly or partly deny a

commission” on the application of an interested person or on the court’s own motion

if “(1) the court finds that the executor or administrator has not taken care of and

managed estate property prudently; or (2) the executor or administrator has been

removed under Section 404.003 or Subchapter B, Chapter 361 [for, among other things,

misapplying or embezzling estate property, or in anticipation thereof].” Tex. Est. Code

§ 352.004. “Unless there is an objection filed to the fee application, the court will

normally approve the calculated fee as long as the calculation does not include

prohibited items.” M. Keith Branyon, Texas Probate Forms & Procedures § 4:30, at 4–9

(12th rev. 2025).

Critically, there is no statutory timeframe or deadline for applying for or awarding

an administrator’s commission, nor does the Estates Code expressly authorize an appeal

from a probate court’s award, reduction, or denial of a commission. See Lynch, 2026 WL

916625, at *2. Thus, we must consider the substantive nature of the orders in question

to determine whether they resolve a discrete issue, in its entirety and as to all parties,

the erroneous resolution of which will create irreparable harm later in the proceeding.

See Wheatfall, 729 S.W.3d at 791; Tacke, 2015 WL 1543912, at *2.

Because an award of an administrator’s commission requires (1) a predicate

finding that the personal representative of the estate has administered the estate in a

manner consistent with the standards imposed by the Estates Code, see Tex. Est. Code

§ 352.002(a), and (2) a determination of the amount of compensation to award, if any,

to be charged against the corpus of the estate before its final distribution to the heirs or

legatees, see id. § 362.011(a), the award, reduction, or denial of a commission is a

controlling, intermediate decision that resolves a particular or discrete phase of probate

proceedings. See Tacke, 2015 WL 1543912, at *2. Stated differently, before awarding an

administrator’s commission to an executor or administrator, the probate court must

find that the cash receipts and disbursements made the basis of the commission

calculation occurred during an administration untainted by mismanagement or

maladministration—intentional or otherwise—and must do so before ordering the

distribution of the corpus of the estate to the heirs or legatees upon final accounting.

Cf. In re Scherer’s Est., 136 P.2d 103, 107 (Cal. Dist. Ct. App. 1943) (op. on reh’g)

(“Manifestly, the court must determine what is left in the estate to distribute before it

can order distribution, and until the amount of executor’s fees are definitely and finally

determined, the order of distribution can[]not be made.”).

And if the probate court errs by reducing or denying a properly earned

commission, the harm is irreparable absent interlocutory appeal because the corpus of

the estate will otherwise be lost to final distributions and no longer available to satisfy

the appropriate award. By conditioning an administrator’s commission upon the

propriety of his administration and the availability of assets to satisfy an award, Section

352.002(a) clearly contemplates that a ruling on any challenge to an award should be

made at a time when the probate court can assure both the representative’s proper

handling of the administration and the availability of assets to satisfy an award, thereby

satisfying the Crowson test for finality and appealability. See Wheatfall, 729 S.W.3d at 792

(looking to the language of the order and, if equivocal, to the record “to see if the order

actually disposes of all parties and issues in the phase of the probate proceedings at

issue”).

Here, the probate court entered an order granting Pyke’s application for

administrator’s commission in part and denying it in part. The order expressly found

that Pyke had “taken care of and managed the Estate in compliance with the standards

set forth in the Texas Estates Code.” Nevertheless, the probate court found good cause

to deny Pyke the $26,109.55 he requested as “unreasonable and unjust.” Instead, the

court reduced its award to $2,027.74, calculated solely on “actual disbursements”

subject to commission, leaving cash receipts other than the real estate transactions

completely uncompensated. The court thereafter entered an order approving Pyke’s

final account of the Estate, including a payment of the $2,027.74 statutory commission

on cash disbursements it had previously awarded and disbursement of the balance of

the corpus of the Estate—all cash—in equal thirds to Alexis, Sabrina, and Hunter’s

estate, conditioned expressly upon the payment of the commission. Thus, the probate

court finally disposed of the issue of Pyke’s compensation as against all parties, thereby

concluding a discrete and particular phase of the proceeding subject to appeal pursuant

to Section 32.001(c).

Finally, the confirmation of our jurisdiction in this matter is distinguishable from

the circumstances addressed by Estate of Froehle and the authorities upon which it relied.

Estate of Froehle did not expressly address an application for administrator’s commission.

2018 WL 2440388, at *1 (holding probate court’s “Order Approving Account for Final

Settlement” neither final nor appealable because it specified “additional actions” to be

accomplished to finally settle and close the estate, “including the payment of all claims,

debts, and expenses; the distribution of estate property to Froehle after payment of all

debts and expenses; the filing of proper receipts; and the administrator’s filing an

application for an order of discharge and for a declaration that the estate is closed”).

Neither did Estate of Scott. 364 S.W.3d at 927–28 (holding probate court’s order

approving second amended final account neither final nor appealable because it

contemplated further activity, “including (1) delivery of the property remaining in the

estate after payment of debts to ‘the persons named in the Determination of Heirship,’

(2) the filing of proper receipts after the distribution of the estate, and (3) the filing of

an application for discharge of the administrator and for a declaration that the estate is

closed”). Nor did Bozeman. 232 S.W.3d at 264–65 (holding probate court’s “Order

Approving Account for Final Settlement” neither final nor appealable because it

specified “additional actions” to be accomplished to finally settle and close the estate

including payment of attorney’s fees awarded under separate order, delivery of all

property and funds to the heirs, and the filing of an application and order for closing

the estate with appropriate proof of final distribution). And in none of these cases did

the appellant argue that the executor or administrator had mismanaged or

maladministered the estate—a controlling, intermediate predicate for the reduction or

denial of an administrator’s commission.

In this case, the probate court ordered no additional actions; accordingly, we

conclude that the probate court’s orders reducing and denying Pyke’s administrator’s

commission are final and appealable and subject to our appellate review pursuant to

Section 32.001(c). See Huddleston v. Kempner, 28 S.W. 936, 936–37 (Tex. 1894) (holding

that dependent administrator was entitled to appeal, without bond, denial of statutory

commission on sale of mortgaged real property concerning administrator’s entitlement

to both cash received (amount bid) and cash paid out (amount bid minus five percent

commission on cash received)); Brown v. Walker’s Heirs, 38 Tex. 109, 109–10 (1873)

(affirming “order of the district court[ that] refus[ed] to allow [administrator–creditor]

the five per[]cent[] commission allowed to administrators by law for paying out money

to creditors”); Cooper v. Schwalbe, 238 S.W.2d 581, 582–84 (Tex. App.—Waco 1951, writ

ref’d) (treating order that approved administrator’s final account, allowed

administrator’s commission on net cash proceeds from sale of estate real property, and

ordered distribution of remaining corpus of estate to decedent’s heirs as final and

appealable and holding cash paid to satisfy IRS tax lien against estate property not

subject to commission); Spofford v. Minor, 36 S.W. 771, 771–72 (Tex. App.—Galveston

1896, writ ref’d) (treating as final and appealable an order that awarded five percent

commission to Texas administrator on residual cash proceeds from sales of Texas land

“paid over” to New York executors and trustees of decedent’s estate, holding same to

be an impermissible commission on a transfer of estate assets within the decedent’s

estate, and reversing and remanding for determination of whether Texas administrator

was entitled to reasonable compensation for services apart from statutory commission).

III. Standard of Review

Our determination of whether the probate court erred by reducing and otherwise

denying the statutory commission requested by Pyke turns on how we interpret the

meaning of the provisions in the Estates Code authorizing its payment. We review

questions of statutory construction de novo, with our primary objective being to give

effect to the legislature’s intent. In re Est. of Allen, 658 S.W.3d 772, 777 (Tex. App.—

El Paso 2022, no pet.); see Eastland v. Eastland, 273 S.W.3d 815, 820 (Tex. App.—

Houston [14th Dist.] 2008, no pet.) (treating question of statutory construction of

former Probate Code as presenting legal issues that appellate court reviews de novo.).

In ascertaining the legislature’s intent, we give statutory terms their plain and common

meanings unless (1) such a construction would lead to an absurd result or (2) a contrary

intention is apparent from the context. See City of Rockwall v. Hughes, 246 S.W.3d 621,

625–26 (Tex. 2008); Lipstreu v. Hagan, 571 S.W.2d 36, 38 (Tex. App.—San Antonio

1978, writ ref’d n.r.e.) (“It is also generally held that statutes providing for compensation

of the personal representative cannot be construed contrary to their plain and definite

language.”).

“Once we determine the [l]egislature’s intent in enacting a provision, we apply

an abuse of discretion standard to determine whether the trial court acted correctly in

applying those provisions.” Allen, 658 S.W.3d at 777; see Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992) (orig. proceeding) (stating that a trial court has no discretion to

misinterpret the law nor to misapply the law to the facts). A trial court abuses its

discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear

and prejudicial error of law or if it clearly fails to analyze or apply the law correctly.

Allen, 658 S.W.3d at 777 (citing Walker, 827 S.W.2d at 839–40). Stated differently, the

question of whether a trial court abused its discretion is whether it acted “without

reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985).

More particularly, these abuse-of-discretion standards apply when a probate

court denies, reduces, or otherwise disallows a statutory commission sought by an

executor or administrator for the administration of an estate. See Shirey v. Harris, 288

S.W.2d 315, 318 (Tex. App.—Fort Worth 1956, no writ) (reviewing for an abuse of

discretion a district court’s revision of probate court’s five percent statutory

commission award to administrator on sale of real estate); Pinkston v. Pinkston, 288

S.W.2d 299, 305–06 (Tex. App.—Waco 1956, writ ref’d n.r.e.) (finding no abuse of

discretion in probate court’s refusal of statutory commission due to administrator’s

maladministration of estate); Jones v. Gilliam, 199 S.W. 694, 697 (Tex. App.—Amarillo

1917) (reviewing for an abuse of discretion probate court’s refusal to allow

administrator credit for brokers’ commissions for negotiating real estate sales), aff’d, 212

S.W. 930 (Tex. 1919).

IV. Analysis

Pyke argues that the probate court erred in denying him a statutory commission

on the cash proceeds received by the Estate for the sales of the Carrollton and Plano

properties by misinterpreting Section 352.002 of the Estates Code to conflate the term

“commission” to include commissions paid to real estate agents or brokers to facilitate

the sale of real property and thereby to foreclose a “double commission” by awarding

an administrator’s commission on cash proceeds of a sale so facilitated. For the reasons

set forth below, we agree.

A. The Republican Origins of the Administrator’s Commission

At common law, executors and administrators were not entitled to compensation

for their administration of a decedent’s estate; almost every state, however, enacted

statutes providing for “just and moderate remuneration” for their services. 2 J.G.

Woerner, A Treatise on the American Law of Administration § 524, at 1267 (2d ed. 1899)

(“The wisdom of these statutes is attested by the experience of more than a century,

and recognized by the courts in numerous decisions, as well as by modern text-writers

without notable exception.”); see Lipstreu, 571 S.W.2d at 38 (“The common law doctrine

that a personal representative of a decedent was not entitled to compensation for his

services has been abrogated by most, if not all, American jurisdictions by statute.”);

James Schouler, A Treatise on the Law of Executors and Administrators § 545, at 638 (1883)

(“American policy . . . binds the executor or administrator closely to the court in his

official dealings; but renders the judicial proceedings as inexpensive as possible, and

remunerates him for faithful services; holding him bound, in consequence, to fulfil his

trust with a just sense of the legal obligations which it imposes.”).

While a republic, Texas enacted a statute authorizing compensation for executors

and administrators in the form of a five percent commission on cash receipts and

disbursements, reenacting the same statutory commission upon becoming a state.

Compare 1 George W. Paschal, A Digest of the Laws of Texas art. 1340, at 325 (5th ed.

1878) (“Executors and administrators shall be entitled to receive, and may retain in their

hands, five per cent. upon the sums they may actually receive in cash; and the same

upon all sums they may pay away, in cash, in the course of their administration.”), and

Oliver C. Hartley, A Digest of the Laws of Texas art. 1188, at 377 (1850) (“[E]xecutors and

administrators shall be entitled to receive, and may retain in their hands, five per cent.

upon the sums they may actually receive in cash; and the same upon all sums they may

pay away, in cash, in the course of their administration.”), with James Wilmer Dallam,

A Digest of the Laws of Texas, Administrator § 2, at 16 (1845) (“Administrators are allowed

five dollars for every hundred dollars expended, and the same for every hundred

received, by them during their office[.]”), and id., Executors, at 92–93 (referring to

Administrator § 2, at 16, as stating the law applicable to executors). Over time, this statute

has been repeatedly reenacted employing the same percentage formula.12 See Ben G.

See Huddleston, 28 S.W. at 937 (“Article 2190 positively allows to the administrator on all money actually received 5 per cent., and on all sums paid away the same per cent.” (citing former Tex. Rev. Civ. Stat. art. 2190 (1879))); Dwyer v. Kaltayer, 5 S.W. 75, 80 (Tex. 1887) (“The executor was entitled to 5 per cent. upon the amount realized from the goods on hand when he took charge of the estate, and this was allowed him.”); Davenport v. Lawrence, 19 Tex. 317, 319 (1857) (quoting former art. 1188, Hart. Dig.); Smith v. Belding, 237 S.W. 246, 246 (Tex. Comm’n App. 1922, judgm’t adopted) (“Executors and administrators shall be entitled to receive and may retain in their hands 5 per cent. on all sums they may actually receive in cash, and the same per cent. on all sums they may pay away in cash in the course of their administration.” (quoting former Tex. Rev. Civ. Stat. art. 3621 (1920))); Beaty v. Bales, 677 S.W.2d 750, 756 (Tex. App.— San Antonio 1984, writ ref’d n.r.e.) (“Executors and administrators shall be entitled to receive, and may retain in their hands, a commission of five per cent (5%) on all sums they may actually receive in cash, and the same per cent on all sums they may actually pay out in cash, in the administration of the estate[.]” (quoting former Tex. Prob. Code § 241(a) (1980))); Shirey, 288 S.W.2d at 317 (“By the provisions of Article 3689, administrators are entitled to receive five per cent on all sums they may actually receive in cash, and the same per cent on all sums they may pay out in cash.”); Simpson v. Goggin, 5 S.W.2d 610, 612 (Tex. App.—San Antonio 1928, writ ref’d) (“Executors and administrators shall be entitled to receive and may retain in their hands five per cent. on all sums they may actually receive in cash, and the same per cent. on all sums they may pay out in cash in the course of their administration.” (quoting former Tex. Rev. Civ. Stat. art. 3689 (1925))); Spofford, 36 S.W. at 771 (“By the statute, administrators are allowed, as commissions, 5 per cent. ‘on all sums they may actually receive in cash, and the same per cent. on all sums they may pay away in the course of their administration.’” (quoting former Tex. Rev. Civ. Stat. art. 2190 (1879))); Claridge v. Lavenburg, 26 S.W. 324, 325 (Tex. App.—San Antonio 1894, writ ref’d) (“Article 2190, Rev. St., provides that executors and administrators shall be entitled to receive and may retain in their hands five per cent. on all sums they may actually receive in cash, and the same per cent on all sums they may pay away in cash in the course of administration.”); Woerner, supra, § 524, at 1268–69 & n.27 (citing former Tex. Rev. Civ. Stat. art. 2245 (1895) (“Executors and administrators shall be entitled to receive and may retain in their hands five per

Sewell & Paul W. Nimmons Jr., The Executor’s and Administrator’s Statutory Compensation

in Texas, 3 St. Mary’s L.J. 1, 2–3 (1971) (observing that “basic statute” has been around

since 1876). Although these statutes have not always employed the term “commission”

in their language, the compensation they authorized has consistently been referred to

in that manner due to its percentage formula. See Smith, 237 S.W. at 246 (referring to

the statutory compensation authorized by Article 3621 as “commissions” although that

term was not found in the statute); see also Commission, Ballentine’s Law Dictionary 223

(3d ed. 1969) (“[A] fee or compensation calculated on a percentage basis, particularly

the compensation of a sales agent”); Commission, 2 Judicial and Statutory Definitions of

Words and Phrases at 1303–04 (West 1904) (“‘Commissions’ is a term without technical

meaning, but, when used to express compensation for services rendered, it usually

denotes a percentage on the amount of moneys paid out or received.”); Commissions,

Black’s Law Dictionary 229 (1891) (“The compensation or reward paid to a factor,

broker, agent, bailee, executor, trustee, receiver, etc., when the same is calculated as a

percentage on the amount of his transactions or the amount received or expended”).

For example, an executor’s or administrator’s entitlement to a statutory

commission extends to cash proceeds received from the sale of estate assets, including

real property. See Cooper, 238 S.W.2d at 583–84 (affirming award of administrator’s

“commission of 5% on all sums he has actually received in cash from the sale of the

cent on all sums they may actually receive in cash, and the same per cent on all sums they may pay away in cash in the course of their administration.”)).

various properties of said estate” excepting any sum thereby realized paid to satisfy any

debt against the properties). In this manner, executors and administrators of estates

lacking in liquid assets have a means of obtaining compensation for their administration.

See Walling v. Hubbard, 389 S.W.2d 581, 586 (Tex. App.—Houston 1965, writ ref’d n.r.e.

& writ dism’d w.o.j.) (“The executor is entitled to a commission on the cash received

where assets of the estate are sold.”).

“The intent of the formula is to provide a fair and reasonable

compensation . . . .” In re Roots’ Est., 596 S.W.2d 240, 243 (Tex. App.—Amarillo 1980,

no writ). “Although this may seem unjust in particular instances, the statutory

commission does, in a rough way, measure both the work and the responsibility of the

personal representative, and perhaps more often than not the formula does not provide

adequate compensation.” 18 M.K. Woodward & Ernest E. Smith, III, Texas Practice

Series: Probate & Decedents’ Estates § 721 (Jan. 2026 update).

As to the circumstances justifying the denial or disallowance of a commission,

Texas probate courts have long had such authority upon finding mismanagement or

maladministration of an estate:

The principle upon which compensation is refused is that, where an estate

has suffered loss by the dereliction of the [executor or] administrator, the

loss will not be enhanced by the allowance of commissions. But [where]

the loss arising out of [the] misconduct is made up to the estate, so that

the beneficiaries get the full benefit of a vigorous and efficient

administration, it [seems] neither just nor logical that a bonus should be

granted to them in the shape of [the] commissions denied [for the

administration], thus increasing the burden which, in such cases, usually

falls upon the delinquent’s sureties. To the extent to which the estate has

been properly administered, and on the amounts which [either] he or his

sureties pay or make up for the losses by [devastavit][13] or

maladministration, the administrator should be allowed such commissions

as the statute provides.

Smith, 237 S.W. at 247 (quoting Woerner, supra, § 526, at 1271–72); Chapman v. Brite, 23

S.W. 514, 517–18 (Tex. App.—San Antonio 1893, no writ) (same); see Schouler, supra,

§ 545, at 640 (“Commissions and compensation may be forfeited by the representative’s

misconduct and culpable remissness in his trust.”).

For example, in Richardson v. McCloskey, our sister court in Austin affirmed a

judgment disallowing five percent commissions sought by the executors of the

decedent’s estate—particularly on the sale of certain real property—because the

executors mismanaged the estate to the point of requiring the trial court to appoint a

receiver, including misappropriating property of the estate. 261 S.W. 801, 817 (Tex.

See McCown’s Ex’rs v. Foster, 33 Tex. 241, 244 (1870) (defining devastavit as “a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duty imposed on them, for which executors [or] administrators shall answer out of their own pockets, as far as they had[,] or might have had, assets of the deceased,” quoting with slight modification 2 Edward Vaughn Williams, A Treatise on the Law of Executors and Administrators 1629 (5th Am. ed. 1859) (citing 3 Matthew Bacon, A New Abridgement of the Law 510 (1832) (“A devastavit is a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the trust and confidence reposed in them, for which executors and administrators shall answer out of their own pockets, as far as they had, or might have had, assets of the deceased.”)); see also Devastavit, Black’s Law Dictionary (12th ed. 2024) (“The mismanagement of a decedent’s estate by an administrator; esp. a fiduciary’s failure to administer an estate or trust promptly and properly, as by spending extravagantly or misapplying assets”); Devastavit, Ballentine’s Law Dictionary (3rd ed. 1969) (“Mismanagement of the estate and effects of a decedent or a misapplication or waste of the assets, in violation of the duty imposed upon an executor or administrator”).

App.—Austin 1924) (op. on reh’g) (citing Schouler on Executors and Administrators

§ 545, at 640), rev’d on other grounds, 276 S.W. 680, 685 (Tex. Comm’n App. 1925).

Similarly, in Thomas v. Hawpe, our sister court in Dallas affirmed the denial of

commissions due to the administrator’s misappropriation of estate funds for personal

use and failure to account for such sums. 80 S.W. 129, 132 (Tex. App.—Dallas 1904,

writ ref’d).

In Chapman, our sister court in San Antonio affirmed a judgment against the

sureties on the administrator’s bond after the administrator was discharged for

misappropriation and maladministration, denying any offset for commissions allegedly

due him. 23 S.W. at 517–18. In Loewenstein v. Watts, our sister court in El Paso disallowed

a statutory commission on the sale of estate property because, although “administrators

may, in cases of necessity, employ a broker to effect a sale,” if the administrator has or

expects an interest in the commission paid or to be paid to such broker, he forfeits his

right to the commission. 119 S.W.2d 176, 181 (Tex. App.—El Paso 1938), aff’d, 137

S.W.2d 2 (Tex. 1940). And in Norman v. Finley, our sister court in San Antonio affirmed

a probate court’s denial of a commission on the sale of a house based upon an implied

finding that the independent executrix had not “taken care of and managed the estate

in compliance with the standards of the Probate Code” because the probate court had

made no affirmative finding as required by former Section 241(a). No. 04-01-00394-CV, 2002 WL 341585, at *7 (Tex. App.—San Antonio Mar. 6, 2002, no pet.); see also

Pinkston, 288 S.W.2d at 305–06 (finding no abuse of discretion in probate court’s refusal

of statutory commissions due to administrator’s maladministration of estate); Scott v.

Taylor, 294 S.W. 227, 235 (Tex. App.—Amarillo 1927, no writ) (affirming denial of

commission for administrator’s maladministration of affairs of estate); cf. Brown, 38 Tex.

at 109–10 (affirming trial court’s disallowance of the five percent commission on

amounts paid to estate’s creditors because, as a creditor of the estate, administrator

merely retained the amount satisfying the debt and did not pay it out as contemplated

by statute); Trammel v. Philleo, 33 Tex. 395, 408–11 (1870) (reversing judgment awarding

administrator five percent commissions paid in specie despite the authorized sales of

real and personal property of estate and payments of estate debts having been

conducted not with specie, but Confederate notes, because such transactions, including

the belated sales of slaves only after issuance of Emancipation Proclamation,

constituted maladministration of estate property).14

As the only decision to interpret the statutory-commission provisions of the

Estates Code, in In re Estate of Irving, our sister court in Corpus Chrisi–Edinburg

affirmed a summary judgment declaring forfeiture of statutory commissions that had

been retained by the administrator for the sale of estate property and distribution of the

Specie was “[c]oin of the precious metals, of a certain weight and fineness, and bearing the stamp of the government, denoting its value as currency.” Specie, Black’s Law Dictionary 1114 (1891). Due to the value inherent in its precious metals, i.e., gold and silver, specie did not suffer the devaluation of Confederate notes during and after the Civil War. See Trammel, 33 Tex. at 409 (“The court cannot refrain from remarking that ordinary liberality would have directed the payment of his commission in kind with that which he gave to the creditors.”).

proceeds to the heirs because (1) commissions for distribution of proceeds to heirs is

expressly forbidden by Section 352.002(b)(2)(C)—providing that an administrator may

not receive a commission for “paying out cash to an heir or legatee in that person’s

capacity as an heir or legatee”—and (2) the administrator had undisputedly failed to

administer the estate in accordance with the provisions of the Estates Code; failed to

file any accounting for the first sixteen years of her administration, including the initial

accounting; and failed to provide documentation for expenditures from the corpus of

the estate. No. 13-20-00081-CV, 2021 WL 1217340, at *1 n.4, *6–7 (Tex. App.—

Corpus Christi–Edinburg Apr. 1, 2021, no pet.). In disallowing an administrator’s

commission due to maladministration, Irving demonstrates that subsections (a) and (b)

of Section 352.002 are consistent with previous caselaw.

B. Section 352.002 Authorizes Commission on Cash Proceeds of Brokered Sale

There is nothing about the language of Section 352.002 that contemplates the

denial or disallowance of an administrator’s commission absent a finding of

mismanagement or maladministration. A realtor’s or broker’s commission on the sale

of real property represents compensation for the specific service of procuring a buyer

for the benefit of a decedent’s estate. An administrator’s commission, on the other

hand, represents compensation for the specific service of administering a decedent’s

estate, including, among other things, the decision to sell real property for the estate’s

benefit. Although they share the same formula, and the amount subject to the

percentage calculation may be the same for an individual sale, these two forms of

compensation are not the same because they compensate different services—one of

which may be subsumed within the other. Because it misinterpreted and misapplied the

term “commission” in subsections (a) and (b) of Section 352.002 to treat both forms of

compensation as the same and to thereby foreclose a “double commission” by refusing

the administrator’s commission sought by Pyke, we agree with him that the probate

court abused its discretion.

1. Realtor’s commissions are authorized expenses of administration

The employment of agents to perform extraordinary services has long been

considered a reasonable expense of administration due to the need for professional

assistance in certain matters:

The qualifications of executors and administrators do not include skill or

capacity in any particular calling; if any such becomes necessary in the

administration of an estate, it is manifestly the duty of the person

administering to employ some one possessing the requisite skill, for whose

compensation the estate is liable; and the rate of compensation to the executor or

administrator being fixed by the statute in recognition of this necessity, it is argued that,

if with greater advantage to the estate such services are performed by the administrator

himself, compensation therefor is not included in the commissions allowed for his

ordinary services, and should be allowed him in addition thereto. The most usual

services of this kind are those of counsellors and attorneys at law,

overseers of plantations or farms, skilled accountants or clerks, and

collectors, whose assistance is very often necessary in the management

and settlement of the affairs of an estate.

Woerner, supra, § 529, at 1276 (emphasis added) (citations omitted). In other words,

because the administration of a decedent’s estate may, on occasion, require special skill

not possessed by its executor or administrator, and the amounts expended therefor may

be considered reasonable expenses to be charged against the estate, if an executor or

administrator possesses the special skill and performs services requiring the same on

behalf of the estate, he may be awarded compensation in addition to the statutory

commission. See id. Compensation for extraordinary services provided to an estate is

distinct from and in addition to compensation for the administration itself. See id.

For example, “a commission properly due an agent for making a sale of property

of the estate” is considered an expense of administration if authorized by will or court

order. W.S. Simkins, The Administration of Estates in Texas § 269, at 376 (3d ed. 1934)

(citing Armstrong v. O’Brien, 19 S.W. 268, 269 (Tex. 1892) (holding commission of agent

employed by independent executors to sell real property of estate constitutes an expense

of administration)); Simon G. Croswell, Handbook on the Law of Executors and

Administrators §§ 127–129, at 321 (West 1897) (“Thus, where the executor claimed an

allowance for brokerage commissions paid to one who negotiated a sale of real estate

belonging to the estate, the charge was allowed.”).

More specifically, in Jones v. Gilliam, the supreme court expressly approved

charging a broker’s commission for the sale of real property as an expense of

administration when authorized by the probate court:

In necessary cases, we do not doubt the power of the Probate Court under

the statute to sanction an administrator’s employment of a broker for the

purpose of effecting a sale advantageous to the estate, and therein to allow

a reasonable broker’s commission as a legitimate expense of

administration. While such authority should be sparingly and providently

exercised, it cannot be said that under no conditions would the court

possess it. In some instances its exercise might be necessary and prove of

distinct benefit to the estate. But in all cases the Probate Court must be

the judge as to the necessity for the estate’s employment of a broker for

the purpose, as well as of the amount of his compensation. These are not

matters which the administrator may determine for himself. The court

administers the estate, not the administrator. The administrator is but an

agency of the court through which its powers are exercised.

212 S.W. at 930–31 (affirming denial of real estate broker’s commissions because “[i]n

the order of the court for the sale of the lands, no authority was given the administrator

to employ brokers for the purpose”).

Similarly, in Jarvis v. Drew, we observed “[t]hat an estate may properly be charged

with the commission of a broker whose employment is reasonably necessary to sell land

is generally conceded.” 215 S.W. 970, 971 (Tex. App.—Fort Worth 1919, writ ref’d)

(first citing Armstrong, 19 S.W. at 269; then citing O’Brien v. Gillelan, 15 S.W. 681, 682

(Tex. 1891) (holding trial court erred in sustaining general demurrer to trial amendment

alleging the authority of the executors to contract with agents to sell land of the estate);

then citing McCown v. Terrell, 29 S.W. 484, 487 (Tex. App.—Dallas 1894) (“It is also held

that independent executors may lawfully employ agents to negotiate sales of land for

them.”), writ dism’d w.o.j., 29 S.W. 467 (Tex. 1895); then citing In re Willard’s Est., 73 P.

240, 240–42 (Cal. 1903) (affirming reimbursement to administrator for agent’s

commission facilitating sale of estate realty as expense of administration)); see also Ennis

& Dale v. Cator, 174 S.W. 947, 948–49 (Tex. App.—Amarillo 1915, no writ) (holding

that order properly authorizing administrator’s sale of real property, including $1,000

broker’s commissions, just as properly vacated when purchaser failed to perform in

accordance with terms of sale, thereby negating estate’s liability for said commissions);

Dyer v. Winston, 77 S.W. 227, 229 (Tex. App.—Galveston 1903, no writ) (acknowledging

independent executrix had authority “to employ an agent to find a purchaser for [estate]

land[] and to pay him an agreed commission therefor”); Wisbey v. Boyce, 27 S.W. 590,

590 (Tex. App.—Galveston 1894, no writ) (“An executor may bind the estate of his

testator by an agreement to pay commissions to an agent to find a purchaser for land

which, under the will, he has authority to convey.”); cf. In re Ballentine’s Est., Myrick Prob.

86, 87 (Ca. Prob. Oct. 5, 1872) (reducing brokerage fees predicated upon overage in

selling real estate for amount in excess of price set by executrix but awarding reasonable

brokerage fees as expense of administration), aff’d, 45 Cal. 696 (1873).

In each of these cases, the real estate agent or broker was retained to facilitate

the sale of real property on behalf of and for the benefit of the decedent’s estate, and

the commission in question was for that service specifically. See Donnan v. Adams, 71

S.W. 580, 582 (Tex. App.—San Antonio 1902, writ ref’d) (“A real estate agent is a

person who is, generally speaking, engaged in the business of procuring purchases or

sales of lands for third persons upon a commission contingent upon success.”). By way

of contrast, the commission authorized by Section 352.002(a) compensates for an

administration that may include the sale of real property but is not limited to a particular

sale or sales. See 34 C.J.S. Executors and Administrators, § 944 (Apr. 2026 update) (“The

purpose of allowing compensation is to reward the representative’s time, labor, and

trouble in administering the estate, for the responsibility incurred, and for the fidelity

with which the representative discharges the duties of [his] trust.”). Thus, the question

raised is whether the “commission” so authorized by Section 352.002 is sufficiently

broad to include both forms, with an award of the former foreclosing an award of the

latter when considering the cash proceeds received from a sale of real property. Stated

differently, does the language of Section 352.002(a) foreclose a “double commission”

on the cash proceeds of a sale of estate real property? See Armstrong, 19 S.W. at 274 (“It

is well settled that a person cannot act in the capacity of agent for both the buyer and

seller, and receive commissions from both[.]”); Porter v. Striegler, 533 S.W.2d 478, 479

(Tex. App.—Eastland 1976, no writ) (op. on reh’g) (“A real estate agent is not entitled

to receive a commission from both the seller and purchaser without the full knowledge

and consent of both parties.”); Double Commission, Black’s Law Dictionary 341 (12th ed.

2024) (“A commission obtained by a person acting in dual roles, each of which

generates a commission, such as a person serving as both executor and trustee in an

estate matter.”). We conclude it does not.

2. Broker’s and administrator’s commissions are not mutually exclusive

Section 352.002(a) does not define the term “commission” other than to

(1) identify executors, administrators, and temporary administrators as those eligible for

compensation, (2) set a five percent multiplier on its formula for calculation, and

(3) identify the amounts subject to the multiplier as “all amounts that the executor or

administrator actually receives or pays out in cash in the administration of the estate.”

Tex. Est. Code § 352.002(a). Nor does Section 352.002(b)(2) identify employing and

compensating real estate agents or brokers to facilitate the sale of real property as a

form of mismanagement or maladministration that would foreclose an award of an

administrator’s commission. Id. § 352.002(b)(2). Citing Richardson v. McCloskey and

Norman v. Finley for support, however, the probate court interpreted these provisions to

foreclose the statutory commission sought by Pyke on the grounds that such an award

would constitute a “double commission” when paired with the realtor’s commissions

the estate had already paid for the sale of the properties.15 Because we conclude these

decisions are questionable authority when interpreting Section 352.002 and are in

conflict with contrary supreme court authority, we find the probate court’s reliance

thereon was an abuse of discretion.

a. Richardson v. McCloskey

In Richardson v. McCloskey, the Austin Court of Civil Appeals affirmed the

disallowance of statutory commissions for the independent executors of the decedent’s

estate because (1) their pleadings merely alleged their entitlement, (2) “[n]o amount or

item upon which commissions were claimed was ever submitted to the court,” and

The probate court also cited In re Guardianship of Rehberg, 745 S.W.2d 435 (Tex. App.—Houston [1st Dist.] 1988, no writ), but this decision is easily distinguishable. The court of appeals affirmed the denial of a five percent guardianship fee pursuant to Section 241(b) of the Probate Code on the ground that the cash proceeds received by the ward’s estate for the sale of real property were not “gross income” but represented the corpus of the estate. Id. at 435–36. In so holding, the court of appeals expressly distinguished the five percent statutory commission on “cash received” authorized for executors and administrators of a decedent’s estate pursuant to Section 241(a). Id. at 436. In other words, our sister court recognized that the formulas for the two forms of compensation were different. See id. And the fact that the guardian had paid a broker a six percent commission on the sale of the property was completely irrelevant to its decision. See id. at 435–36.

(3) “[u]nder such circumstances, if [they] were entitled as a matter of law to any

commissions, they would not be entitled to charge commissions on disbursements and

collections for which they had already paid agents the 5 per cent.” 261 S.W. at 817.

Since the probate court had no pleadings or evidence upon which to base an award, the

court of civil appeals held that “it was therefore not error for it to refuse to render

judgment for commissions.” Id.

Critically, the court of civil appeals did not cite any authority for foreclosing the

statutory commissions sought by the executors due to their payment of commissions

to agents for the sale of real property, including the language of the statute itself. See id.

Indeed, Article 3621 did not reference commissions at all, although its provision for

executor and administrator compensation was commonly referred to in that manner.

See Smith, 237 S.W. at 246. So it simply could not have been said that the legislature

intended to include “commissions” paid to realtors or brokers within the formula for

statutory compensation when the term was not therein employed. See Lippincott v.

Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (“A court may not judicially amend a

statute by adding words that are not contained in the language of the statute.”).

Moreover, in addition to the absence of pleading and proof, the Richardson court

further held that the executors could not recover statutory commissions because they

had “unlawfully appropriated and used the funds of the estate and refused to account

for them.” Richardson, 261 S.W. at 817 (“Commissions are not allowed as an offset to a

judgment against an administrator for money not accounted for.” (first citing Schouler

on Executors and Administrators § 545, at 640; then citing Thomas, 80 S.W. at 132; and

then citing Chapman, 23 S.W. at 517–18). Indeed, the court of civil appeals had

previously affirmed the district court’s appointment of a receiver pendente lite in a suit

by the surviving brothers and sisters of the decedent—residuary legatees and devisees

of his will—for an accounting, partition and distribution of estate property alleging

“negligent and illegal handling of the estate” by the independent executors, concluding

that the evidence of their mismanagement of the estate supported the receiver’s

assumption of its management. Richardson v. McCloskey, 228 S.W. 323, 325–31 (Tex.

App.—Austin 1920, writ dism’d w.o.j.) (op. on reh’g). Thus, of the three grounds

specifically identified by the court of civil appeals, its disallowance of statutory

commissions due to the payment of realtor’s commissions from the same cash proceeds

was the only ground without support from either procedural or decisional authority.

Furthermore, the commission of appeals subsequently reversed the Austin court

and remanded the case for a new trial without specifically addressing the disallowance

of statutory commissions. See Richardson, 276 S.W. at 682–85 (holding, for example, that

monuments and tombstones are “funeral expenses” chargeable to the decedent’s estate,

as are premiums paid to insure estate property). Although the commission approved

the conclusions of law reached by the court of civil appeals as to matters presented in

the application for writ of error but not specifically discussed, it did not identify

statutory commissions as a matter presented, specifically recommending to the supreme

court that on remand the trial be conducted “in a manner consistent with” its opinion

and the opinion of the court of civil appeals “as herein approved.” Id. at 685.

Although the supreme court rendered the judgment recommended by the

commission, see Texas Rules of Form: The Greenbook 5.2.1 (Texas Law Review Ass’n ed.,

15th ed. 2022), the precedential value of the opinion of our sister court thereby reversed

is difficult to surmise due to the unique remand language employed:

The judgments of the Court of Civil Appeals and district court are both

reversed, and the cause is remanded to the district court for another trial

in a manner consistent with the opinion of the Commission of Appeals, and the opinion

of the Court of Civil Appeals in so far as same is not inconsistent with that of the

Commission of Appeals.

Richardson, 276 S.W. at 685 (emphasis added). The highlighted language neither “adopts”

nor “approves” the entirety of either opinion, or even a specific holding thereof. See

Texas Rules of Form: The Greenbook, 5.2.2–2.4. And contemporaneous authorities provide

no interpretation of its precedential authority. See Ben H. Powell, A Comparative Review

of the Recent Statute Changing Method of Appointment of Members of the Commission of Appeals of

the Supreme Court and Enlarging Their Duties, 9 Tex. L. Rev. 190, 201 (1931); Recent Cases,

Courts – Opinions of Texas Commission of Appeals, 12 Tex. L. Rev. 356, 358 (1934).

Finally, despite the supreme court’s having cited the opinion of the commission

of appeals as its own authority on another issue, see Knopf v. Gray, 545 S.W.3d 542, 546

(Tex. 2018) (employing citation form of Rule 5.2.2 of the thirteenth edition of the

Greenbook in support of a different point of law), no Texas court has treated the

opinion of the court of civil appeals as having been expressly approved by the supreme

court. Compare Norman, 2002 WL 341585, at *7 n.3 (citing opinion as having been

“reversed on other grounds” by the supreme court), with Bryan v. Bryan ex rel. Mollie

Nettles Bryan Trust, No. 12-01-00028-CV, 2001 WL 1651942, at *1 (Tex. App.—Tyler

Dec. 21, 2001, no pet.) (citing opinion as having been “reversed on other grounds” by

the commission of appeals), and Long v. Long, 252 S.W.2d 235, 250 (Tex. App.—

Texarkana 1952, writ ref’d n.r.e.) (op. on reh’g) (same). And a contemporary legal

encyclopedia published a few years after the supreme court’s judgment referred to the

reversal as a decision of the commission of appeals, not the supreme court. See Decedent’s

Estates, 14 Tex. Jur. § 644, at 464–65 nn.14 & 15 (1931) (citing decision of court of civil

appeals as authority for forfeiture of statutory commission due to willful default or

negligent mismanagement and as having been reversed on other grounds by the

commission of appeals).

Under these circumstances, we decline to consider our sister court’s decision to

disallow a statutory commission on the cash proceeds from a sale of real property when

a realtor’s or broker’s commission has been paid on the same transaction as persuasive,

let alone binding, authority.

b. Norman v. Finley

As observed above, in Norman v. Finley, the San Antonio Court of Appeals

affirmed the probate court’s denial of a commission on the sale of a house based upon

an implied finding that the independent executrix had not “taken care of and managed

the estate in compliance with the standards of the Probate Code” because it had made

no such affirmative finding of care as required by former Section 241(a). 2002 WL

341585, at *7. In footnote 3 of its opinion, however, the court identified as an additional

ground of disallowance the executrix’s payment of a realtor’s commission in connection

with the sale of a house, citing the decision of the court of civil appeals in Richardson v.

McCloskey. Id. at *7 n.3. In so holding, the court failed to explain how the language of

Section 241(a) authorized this ground of denial. See id.

Since we disagree with our sister court’s conclusion that Richardson v. McCloskey

is persuasive authority, we decline to follow this aspect of its decision.

c. Jones v. Gilliam

Although cited by neither the probate court nor Pyke, in Jones v. Gilliam, the

Amarillo Court of Civil Appeals disallowed as a charge against the decedent’s estate the

five percent commission the administrator had paid to a broker for the sale of real

property on the ground that the administrator was already to be paid a five percent

statutory commission on the cash proceeds of the sale and thus to allow the broker’s

commission in addition “would amount to a double charge for the same services.” 199

S.W. at 698. In so holding, the court treated both the broker’s commission and the

statutory commission as compensation for the same service, with the commission

authorized by Article 3621 foreclosing the payment of the broker’s commission as a

charge against or expense of the estate, as authorized by Article 3623:

It does not occur to us that money paid a broker on a contract for 5 per

cent. commission to effect a sale properly falls under [A]rticle 3623,

allowing all reasonable expenses necessarily incurred by the administrator

in the preservation, safe-keeping, and management of the estate and all

reasonable attorney’s fees necessarily incurred in the course of

administration. The appellant contests the finding or the idea that the

amounts claimed were for commission for sale, but asserts that they were

for services rendered in the management of the estate. The administrator

testified the compensation agreed upon was 5 per cent. commission on

the amount of the sale. They were employed as brokers and sold the land

and contracted as such. By such contract the brokers undertook to sell the land and

to perform a duty imposed by the statutes upon the administrator. This duty or power

could not be delegated by the administrator to another and certainly not without an

order authorizing him to do so, or approved by the court. The law fixed the compensation

of the administrator at 5 per cent. on the money received on the consideration paid for

the land, and to permit another 5 per cent. for the services included in the power to sell

would amount to a double charge for the same services. We believe the court correctly

refused to allow these items.

Id. (emphasis added).

In this manner, the court of civil appeals focused on the cash receipts from the

sale of real estate as the amount to be multiplied, equated the five percent formula for

the commission paid the broker by the administrator with the five percent formula set

forth in Article 3621—assuming the services to be the same—and thereby rejected the

former as one of the “reasonable expenses” authorized by Article 3623. See id.; see also

Jarvis, 215 S.W. at 971 (observing that Article 3623 provided that “[e]xecutors and

administrators shall also be allowed all reasonable expenses necessarily incurred by them

in the preservation, safe keeping and management of the estate, and all reasonable

attorney’s fees that may be necessarily incurred by them in the course of the

administration”). In other words, the court held that the administrator could not be

reimbursed for his payment of the broker’s commission on the sale when he was going

to be compensated the same amount for the same sale. See id.; see also Trammel, 33 Tex.

at 411 (“It is not the policy of the law that liberal commissions should be allowed to

executors and administrators for settling the estates of deceased persons, and at the

same time attorneys be paid for doing the business.”).

When the Supreme Court of Texas considered the administrator’s application for

writ of error, however, it did not interpret the interaction between Articles 3621 and 3623

in the same way. Jones, 212 S.W. at 931. Instead, the supreme court acknowledged that there

may be certain instances when the peculiar services of a broker may be sufficiently

necessary to allow an administrator to receive reimbursement from the estate for the

former’s commission without foreclosing his own compensation for the same transaction: