Musquiz v. Marroquin, 124 S.W.3d 906 (Tex. App.—Corpus Christi-Edinburg 2004, pet. denied).
Principal signed a durable power of attorney giving broad powers to
Son and Daughter as Co-Agents. The power contained an exculpatory clause
and authorized self-dealing. Daughter used Principal’s funds to make
improvements to Principal’s home and then sold and deeded the house to
herself and her husband. Daughter also engaged in other self-dealing
transactions. Subsequently, Principal died with a valid will leaving her
entire estate to Son. After Daughter’s actions came to light, Son sued
Daughter alleging breach of fiduciary duty as well as trespass to try
title. The trial court agreed with Son and set aside the sale and
related self-dealing transactions which resulted in Son receiving the
home along with a damage award for the property’s fair rental value
during the time Daughter occupied the home and attorney’s fees. Daughter
appealed.
The court examined the power of attorney and determined that it
established a joint agency because Principal named two agents and there
was no language supporting the creation of a joint and several agency.
Accordingly, all acts on behalf of Principal needed the joinder of both
agents. Because Son did not join, the actions of Daughter were properly
set aside as null and void. However, the award of attorney’s fees was
not proper because attorney’s fees are not recoverable in trespass to
try title and breach of fiduciary duty actions.
Moral: A durable power of attorney which names two or more agents will
be construed to create a joint agency unless the power affirmatively
establishes a joint and several agency.
After Principal’s death, controversy arose regarding the propriety of
various actions of Agent. The case was filed and heard in the district
court. The appellate court agreed that the district court had
jurisdiction even though the probate of Principal’s estate was pending
in a statutory county court. The court rejected Agent’s claim that the
statutory county court had exclusive jurisdiction because the probate
case was filed first. The court explained that although Probate Code §§
5 & 5A provide that the probate court has jurisdiction over matters
incident to estate, these sections do not strip the district court of
jurisdiction.
Moral: District courts and county courts at law have concurrent
jurisdiction over matters incident to an estate.