In January 2009, appellee Fred B. Blackwell, the trustee of a testamentary trust that is a beneficiary of the last will and testament of the late Edgar Hollis of Coweta County, filed this action in which he sought an accounting, the removal of appellant Mayo H. Royal, Jr., as executor of the estate, and damages resulting from Royal’s purported breach of his fiduciary duty.1 Following the executor’s resignation in May 2009 from the post he had held since August 2006, the Probate Court of Coweta County appointed appellee W. Robert Hancock, Jr., as temporary administrator of the Hollis estate and, in December 2009, the trial court granted the estate’s motion to intervene under OCGA § 9-11-24 a 2. In July 2010, the trial court granted the motions for summary judgment filed by trustee Blackwell and temporary administrator Hancock. Blackwell’s motion sought judgment against Royal on the issue of Royal’s liability under OCGA § 13-6-11 for attorney fees and expenses of litigation incurred by Blackwell; Hancock, who had amended his complaint to incorporate by reference Blackwell’s request for attorney fees under § 13-6-11, asserted Royal was liable for the attorney fees and expenses of litigation the temporary administrator had incurred. In granting the motions in favor of Blackwell and Hancock, the trial court found that Royal had breached repeatedly the fiduciary duty he owed the estate and that the breaches supported an award of damages to Blackwell and the estate pursuant to OCGA § 53-7-54, warranted a forfeiture of any compensation paid to Royal as executor, constituted “fraud or defalcation while acting in a fiduciary capacity” within the meaning of 11 USC § 523 a 4, and would have warranted Royal’s removal as executor had he not resigned. The trial court denied compensation to Royal as executor and ordered Royal to repay all compensation he had received as fiduciary fees.2 See OCGA § 53-7-54 a 7. After construing the provision of the Hollis will concerning the order in which successor beneficiaries to certain bequests were to be considered, the trial court found that Royal also had breached his fiduciary duty by distributing estate funds without regard to the terms of the will and awarded Hancock, the estate’s temporary administrator, the attorney fees and expenses incurred by the estate in taking over the administration of the estate from Royal and in seeking the return of the estate funds improperly distributed by Royal. The amounts of the awards for attorney fees and expenses of litigation were to be determined in a subsequent trial on damages. Royal appealed the grant of summary judgment to this Court.3
1. Royal first argues that the trial court erred when it determined that the terms of the Hollis will required the executor to offer the Newnan-Coweta Historical Society a bequest declined by the City of Newnan. The will bequeathed the Hollis family home and its furnishings to the City of Newnan for the purpose of establishing a museum and provided funds to endow the museum. The will stated that in the event the City is unable or unwilling to accept this bequest or at some point in time declines to continue the operation of the Museum this bequest shall pass to the NEWNAN COWETA HISTORICAL SOCIETY, its successor, or a comparable charitable entity. After the City of Newnan declined the bequest in October 2007, Royal deposited $1.5 million into the bank account of a local foundation which he deemed to be “a comparable charitable entity.” The trial court found that Royal was a member of the local foundation’s board of directors and served as its paid bookkeeper/accountant. The foundation was added as a party respondent by consent order filed April 27, 2009.
