O.C.G.A. § 23-2-59 (2019)

Annotations

Law reviews. - For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

JUDICIAL DECISIONS A confidential relationship exists where one party occupies a position of trust and confidence with respect to another. Such a relationship can exist between an executor representing an estate of a decedent, and a legatee or devisee of the estate represented in administration. Ringer v. Lockhart, 240 Ga. 82, 239 S.E.2d 349 (1977). Where the fiduciary relationship of principal and agent existed between the petitioner and the defendant, the agent could not make advantage or profit out of the relationship to the injury of the agent’s principal. Harrison v. Harrison, 214 Ga. 393, 105 S.E.2d 214 (1958). Confidential relationships in estate matters. - Where a widow and named executrix under the will of a decedent, who is left a life estate in all of the property of the decedent, advises the sole nonresident remainderman named in the will that the father’s estate would be handled fairly and that he would not have to worry about his father’s estate, immediately, without actual notice to him applies for and obtains an uncontested year’s support awarding to her all of the property of the decedent’s estate, a question is pre-

sented, as to whether or not the year’s support judgment was obtained by fraud. Ringer v. Lockhart, 240 Ga. 82, 239 S.E.2d 349 (1977). Under the evidence as to the existence of a partnership between the petitioner and the defendant and their agreement to jointly purchase the land involved, and evidence that the petitioner paid one-half of the purchase money and trusted the defendant to close the deal and obtain a conveyance naming them both as grantees, the defendant could not obtain an interest in the land antagonistic to that of the petitioner; and where the defendant procured a deed, in his own name only, equity would annul the conveyance and decree title in the petitioner to his share. Crosby v. Rogers, 197 Ga. 616, 30 S.E.2d 248 (1944). Relationship of principal and agent, being confidential and fiduciary in character, demands of the agent the utmost loyalty and good faith to the agent’s principal. Any breach of this good faith whereby the principal suffers any disadvantage and the agent reaps any benefit is a fraud of such nature as to preclude the agent from

taking or retaining the benefit. Harrison v. Harrison, 214 Ga. 393, 105 S.E.2d 214 (1958). Competing with principal after agency terminates. - The principles of agency will not sustain grant of an injunction prohibiting competition after agency relationship is terminated. Pope v. Kem Mfg. Corp., 249 Ga. 868, 295 S.E.2d 290 (1982). In absence of evidence of a restrictive covenant in employment contract, trial court erred in enjoining employee from soliciting business for himself from eight customers to whom he had sold similar products for his employer. Pope v. Kem Mfg. Corp., 249 Ga. 868, 295 S.E.2d 290 (1982). No breach of duty when all partners enter into agreement at same time. - O.C.G.A. § 23-2-59, when construed in conjunction with O.C.G.A. § 14-8-21, applies only to partnership rights acquired by one partner without the consent of the other partners. Thus, when all limited partners and the general partner acquired their rights at the same time by entering into an agreement, there

was no breach of fiduciary duty. Consolidated Equities Corp. v. Bird, 195 Ga. App. 45, 392 S.E.2d 276 (1990). Writing requirement for postemployment covenant. - In order to be valid a post-employment covenant against competition by an employee who is not an officer or director must be in writing. Pope v. Kem Mfg. Corp., 249 Ga. 868, 295 S.E.2d 290 (1982). Cited in Napier v. Adams, 166 Ga. 403, 143 S.E. 566 (1928); White v. Dotson, 41 Ga. App. 436, 153 S.E. 233 (1930); Thompson v. State, 47 Ga. App. 229, 170 S.E. 328 (1933); Blount v. Dean, 187 Ga. 494, 1 S.E.2d 653 (1939); Crosby v. Rogers, 197 Ga. 616, 30 S.E.2d 248 (1944); Smith v. Merck, 206 Ga. 361, 57 S.E.2d 326 (1950); Howard v. Lee, 208 Ga. 735, 69 S.E.2d 263 (1952); Johnson v. Hutchinson, 217 Ga. 489, 123 S.E.2d 551 (1962); Brogdon v. Purvis, 220 Ga. 28, 136 S.E.2d 719 (1964); Cole v. Cates, 113 Ga. App. 540, 149 S.E.2d 165 (1966); Westminster Properties, Inc. v. Atlanta Assocs., 250 Ga. 841, 301 S.E.2d 636 (1983); Hanson v. First State Bank & Trust Co., 259 Ga. 710, 385 S.E.2d 266 (1989).

RESEARCH REFERENCES Am. Jur. 2d. - 27 Am. Jur. 2d, Equity, § 20. 37 Am. Jur. 2d, Fraud and Deceit, §§ 15, 16. C.J.S. - 30 C.J.S., Equity, § 48. 37 C.J.S., Fraud, § 2. ALR. - Right of insolvent to insure life for benefit of relatives, 34 A.L.R. 838.

Rights and remedies of original licensee or his estate, against one in fiduciary or confidential relation who acquires in his own name an occupational or business license, 144 A.L.R. 1013.