pjc-family-2024-lib

PJC 232.3

B REACH OF D UTY BY P ERSONAL R EPRESENTATIVE

5. an order removing a personal representative (Tex. Est. Code §§ 361.051–.054, 404.0036); 6. an order reducing or denying compensation to the personal representative (Tex. Est. Code § 352.004); or 7. an order voiding an act of the personal representative (e.g., Tex. Est. Code § 356.655). Concerning receiverships and injunctions, see Tex. Civ. Prac. & Rem. Code chs. 64, 65. Jury questions. Whether equitable relief is granted is for the court to decide based on “the equity of the circumstances”; however, the jury must resolve any con tested fact issues. Burrow v. Arce , 997 S.W.2d 229, 245 (Tex. 1999). Equitable relief generally. Where a personal representative has profited through a breach of trust, as described in PJC 232.1 and 232.2 (breach of duty), the plaintiff is entitled to equitable relief (such as rescission, constructive trust, or fee forfeiture) without having to show that the breach caused damages. Burrow , 997 S.W.2d at 238; Kinzbach Tool Co. v. Corbett-Wallace Corp. , 160 S.W.2d 509 (Tex. 1942); Geeslin v. McElhenney , 788 S.W.2d 683, 687 (Tex. App.—Austin 1990, no writ); see also Restatement (Third) of Agency § 8.01 cmt. d (2006) (listing remedies). Rescission. The court may grant rescission of a transaction accomplished by a breach of the defendant’s fiduciary duty. See Allison v. Harrison , 156 S.W.2d 137, 140 (Tex. 1941) (purchase of land by fiduciary without full disclosure by fiduciary was voidable and could be set aside at plaintiff’s option, even without proof that price obtained was unreasonable); see also Schiller v. Elick , 240 S.W.2d 997, 1000 (Tex. 1951) (setting aside deed obtained through fiduciary’s breach); Tex. Est. Code § 356.655 (voiding and setting aside purchase of estate property by personal represen tative in violation of subchapter N, chapter 356). Constructive trust. The court may impose a constructive trust to restore property or profits lost through the fiduciary’s breach. Consolidated Gas & Equipment Co. v. Thompson , 405 S.W.2d 333, 336 (Tex. 1966); Holloway , 368 S.W.2d at 577; Slay v. Burnett Trust , 187 S.W.2d 377, 388 (Tex. 1945); Lesikar , 33 S.W.3d at 303–04. Fee forfeiture. The right to fee forfeiture does not present a jury question. If the amount earned is disputed, however, see PJC 115.17 in the current edition of Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment .

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