Lawyers Surety Corp. v. Hall ( 1979 )

COULSON, Justice.

This is an appeal from an order of the probate court surcharging Lawyers Surety Corporation (Lawyers), the surety on the bond of the original guardian, for fees and expenses incurred in connection with the assumption of duties by the successor guardian, J. Richard Hall (Hall). The issue is whether Tex.Rev.Civ.Stat.Ann. art. 5528 applies. We hold that it does. Thus, we reverse the trial court’s decision and render judgment that Hall take nothing.

Bart Denton was appointed guardian of his minor sons, Ramon Bart Denton and William Buck Denton, and on December 19, 1961, filed his $8,000.00 guardian’s bond with Lawyers as the commercial surety. On July 14, 1973, Bart Denton died. Hall was appointed successor guardian on November 20, 1978. Hall’s “Motion to Surcharge Surety For Fees of Successor Representative” was filed on February 2, 1979. The timely answer filed by Lawyers pled the statute of limitations, Tex.Rev.Civ.Stat. Ann. art. 5528 (Vernon 1958), which states: “[a]ll suits on the bond of any executor, administrator or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal or discharge of such executor, administrator or guardian, and not thereafter.”

The death of a guardian commences the running of the limitation period for suits on his bond. Marlow v. Lacy, 68 Tex. 154, 2 S.W. 52 (1886). Applying art. 5528 to this case, the limitation period began running on July 14, 1973, the date of the original guardian’s death. Thus the present action is barred by limitations.

Reversed and rendered.