Open Government Project
A Government Watchdog Group
State of Texas
City of Galveston
Public Interest Groups
It's Time to Find
a New Executor!
by David Stanowski
12 April 2013
If Commissioner Jerry Patterson wants to continue to use the tired old excuse, regarding his role in the Galveston Public Housing rebuilding scheme, that he is acting as “an Executor of an estate in which the beneficiaries are unhappy with the distribution outlined in the Will”, it’s time for the State of Texas to find a new Executor who understands probate law!
Apparently, the current Executor doesn’t understand that “A Will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt.” Since the Conciliation Agreement that he refers to is more akin to a Trust than a Will, Texas Property Code, Title 9, Subtitle B, Chapter 122, Sec. 112.031 clearly states “A Trust may be created for any purpose that is not illegal. The terms of the Trust may not require the Trustee to commit a criminal or tortious act or an act that is contrary to public policy.”
The terms of a Will or Trust that are “contrary to public policy” may be such things as a father leaving a child an inheritance “only if they never get married”, “only if they never have children”, or “only if they become a doctor”.
More blatant violations of public policy in a Will or Trust would be a bequest of an apartment building "only if the beneficiary agreed not to rent to minorities", or the bequest of a house "only if the beneficiary agreed not to sell it to minorities". These are much better analogies to what Commissioner Paterson is trying to inflict upon the City of Galveston.
His claims that the terms of a Will or Trust cannot be changed also have no foundation.
All interested parties may agree not to probate a Will, and/or to divide property among themselves contrary to the provisions of a Will. As long as the agreement does not defeat the rights of creditors or other parties, it is valid and enforceable. In fact, “such adjustments by contract are favored by the law and the courts, and are not deemed to be an unwarranted interference with the jurisdiction of the court or against public policy. On the contrary, public policy favors them.” Stringfellow v. Early, 40 S.W. 871 (Tex.Civ.App.--1897, no writ).
The terms of the “Will” or “Trust” that Commissioner Patterson seeks to enforce would increase segregation in the City of Galveston and are clearly both “contrary to public policy” and a violation of the Fair Housing Act, making them blatantly illegal. It is his "fiduciary duty" as the “Executor” to demand a drastic change in the current terms, not just salute and enforce them, or he should step aside for someone who is willing to do so.
Unfortunately, at least four members of the Galveston City Council are determined to help Commissioner Patterson enforce the unlawful terms of the Conciliation Agreement, because they all seem to think that they can fall back on the Nuremberg defense that they are just following orders!