Colonial American Cas. and Sur. v. Scherer, 214 S.W.3d 725 (Tex. App.—Austin 2007, no pet.).
Original Administrator of the decedent’s estate breached numerous
statutory and common law duties. Accordingly, Original Administrator was
removed from office and replaced by Successor Administrator. Successor
Administrator proceeded against Bond Company for damages caused by the
breaches as well as for attorney’s fees. The trial court awarded both
damages and attorney’s fees and Bond Company appealed.
The appellate court held that an award of attorney’s fees against Bond
Company was proper. Probate Code § 245 provides that the personal
representative and the sureties on the bond are liable for reasonable
attorney’s fees incurred in removing the personal representative.
However, the total amount of Bond Company’s liability, that is, for
damages caused by the breaches of duty plus the attorney’s fees, may not
exceed the penal amount of the bond.
Moral: A surety may be responsible for attorney’s fees incurred because
of the conduct of the bonded person. However, the total recovery
(damages plus attorney’s fees) may not exceed the amount of the bond.