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Fowler v. Smith

The probate court implicitly approved the administrator's bond application when it enforced the application's indemnity provision providing that the administrator was liable for the surety's expenses.

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In this second appearance of this case before us, Glenda Fay Fowler and Steve Anthony Smith, beneficiaries of the estates of Troy Alonzo Smith and Ethel J. Smith collectively the Estate, appeal the trial court’s grant of summary judgment to James Don Smith, the administrator of the Estate the Administrator, and St. Paul Fire & Marine Insurance Company,1 the bonding company used by the Estate’s administrator to procure a bond. Specifically, the appellants contend that the trial court erred by finding that, following an unsuccessful claim for estate mismanagement brought by them against the Administrator and St. Paul, the litigation costs incurred by St. Paul, pursuant to an indemnity clause in the bond application of the Administrator, should be paid from Estate assets. For the reasons set forth below, we affirm.

In the first appearance of this case, Fowler v. Smith, 230 Ga. App. 817 498 SE2d 130 1998, this Court upheld a jury verdict in favor of the Administrator and St. Paul regarding claims of mismanagement brought by appellants. Following this decision, the Administrator petitioned the probate court of Whitfield County to allow him to use Estate funds to pay the costs of litigation incurred by St. Paul, for which he was contractually liable pursuant to an indemnity clause contained in his bond application. The probate court approved these disbursements, and the appellants then appealed this ruling to the Superior Court of Whitfield County. The superior court, in turn, approved the disbursement, finding that St. Paul’s expenses, for which the administrator was liable, were expenses incurred in the administration of the Estate in accordance with OCGA § 53-6-61. It is this determination which the appellants now contend was erroneous based on several grounds.

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