Alice Lynn Harper Taylor v. In the matter of the Estate of Alice Earle F. Harper ( 2014 )

REL: 9/26/2014
Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1130587
____________________
Alice Lynn Harper Taylor
v.
In the matter of the Estate of Alice Earle F. Harper,
deceased
Appeal from Escambia Probate Court
(Probate No.: 10058)
1130884
____________________
Alice Lynn Harper Taylor
v.
In the matter of the Estate of Alice Earle F. Harper,
deceased
Appeal from Monroe Probate Court
(Probate No.: 3330)
BOLIN, Justice.
These consolidated appeals involve the estate of Alice
Earle F. Harper, deceased (hereinafter the "decedent"). Alice
Lynn Harper Taylor, the decedent's daughter (hereinafter
"Alice"), appeals in case no. 1130587, pursuant to § 12-22-21,
Ala. Code 1975, from the Escambia Probate Court's admission to
probate of a 2007 will allegedly executed by the decedent and
filed for probate in the probate court in Escambia County.
Alice also appeals in case no. 1130884 from the Monroe Probate
Court's order granting a motion to dismiss Alice's petition to
probate a 1995 will allegedly executed by the decedent and
filed for probate in the probate court in Monroe County.
Facts and Procedural History
On March 1, 2013, the decedent died in Monroe County.
She had three adult children who survived her: Alice, William
C. Harper, and James R. Harper. The decedent's husband died
in 2002. On November 12, 2013, Alice filed in Monroe County
a petition to probate a 1995 will allegedly executed by the
decedent. In her petition, Alice acknowledged that there was
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in existence a 2007 will that purported to be the will of the
decedent. Alice challenged the validity of the 2007 will on
several grounds, including lack of mental capacity and the
existence of a reciprocal will by the decedent's husband that
had been admitted to probate in 2002. On December 10, 2013,
the Monroe Probate Court set a hearing for January 28, 2014.
On January 22, 2014, the probate judge recused himself from
hearing the petition. On February 20, 2014, this Court
entered an order appointing a special probate judge to hear
the probate proceedings in Monroe County.
Meanwhile, on January 8, 2014, William filed a petition
in Escambia County to probate a 2007 will allegedly executed
by the decedent. On January 17, 2014, in the Escambia
Probate Court, Alice filed a motion to dismiss and/or to stay
the proceeding in Escambia County until the proper venue for
the probate proceeding was determined. Alice cited § 43-8-21,
Ala. Code 1975, which addresses a situation like this one
where there are multiple probate proceedings, and argued that
under § 43-8-21 the Monroe Probate Court is the proper venue.
On February 19, 2014, the Escambia Probate Court admitted the
2007 will to probate and issued letters testamentary to
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William, as the personal representative named in the 2007
will. On March 3, 2014, Alice filed a notice of appeal
pursuant to § 12-22-21(2), Ala. Code 1975, which allows an
appeal to the circuit court or to the Alabama Supreme Court of
a probate court's "judgment or order on an application
claiming the right to execute a will or administer an estate"
(case no. 1130587).
On April 11, 2014, William filed in the Monroe Probate
Court a motion to dismiss Alice's petition to probate the 1995
will. William argued that the 2007 will revoked all earlier
wills and that the 2007 will gave the personal representative
the right to choose the county in which the will would be
probated. On April 14, 2014, the Monroe Probate Court granted
William's motion to dismiss on the ground that it lacked
subject-matter jurisdiction. Alice filed an appeal pursuant
to § 12-22-21 from the Monroe Probate Court's grant of the
motion to dismiss her petition to probate the 1995 will (case
no. 1130884).
Discussion
"The jurisdiction of the probate court is limited to the
matters submitted to it by statute." Wallace v. State, 507
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So. 2d 466, 468 (Ala. 1987). The statute governing the
subject-matter jurisdiction of the probate court, § 12-13-1,
Ala. Code 1975, provides, in pertinent part, that the probate
court has original and general jurisdiction as to all matters
enumerated in the statute, which includes the probate of
wills. The general venue statute setting out the venue for
the probate of a will in Alabama is set out in § 43-8-162,
Ala. Code 1975, and provides:
"Wills must be proved in the several probate
courts as follows:
"(1) When the testator, at the time of
his death, was an inhabitant of the county,
in the probate court of such county.
"(2) When the testator, not being an
inhabitant of the state, dies in the
county, leaving assets therein, in the
probate court of such county.
"(3) When the testator, not being an
inhabitant of the state, dies out of the
county, leaving assets therein, in the
probate of the county in which such assets,
or any part thereof, are.
"(4) When the testator, not being an
inhabitant of the state, dies, not leaving
assets therein, and assets thereafter come
into any county, in the probate court of
any county into which such assets are
brought.
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"(5) In the probate court of the
county designated by testator in the will
if the testator owns property in such
county at the time of his death."
Section 43-8-162 does not give priority to any one of the
five venues specified therein as a venue where a will may be
probated over another. Section 43-8-21 establishes venue when
a probate proceeding may be maintained in more than one place
in Alabama:
"(a) Where a proceeding under this chapter could
be maintained in more than one place in this state,
the court in which the proceeding is first commenced
has the exclusive right to proceed.
"(b) If proceedings concerning the same estate
are commenced in more than one court of this state,
the court in which the proceeding was first
commenced shall continue to hear the matter, and the
other courts shall hold the matter in abeyance until
the question of venue is decided, and if the ruling
court determines that venue is properly in another
court, it shall transfer the proceeding to the other
court.
"(c) If the court finds that in the interest of
justice a proceeding or a file should be located in
another court of this state, the court making the
finding may transfer the proceeding or file to the
other court."
In the present case, the decedent died in Monroe County.
Alice filed a petition to probate the decedent's 1995 will in
Monroe County. It is undisputed that the decedent was
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domiciled in Monroe County at the time of her death. Section
43-8-162(1) provides that venue is proper in the probate court
where the decedent was an inhabitant at the time of her death.
This Court has equated the term "inhabitant" with the word
"domiciliary," and a domicile consists of a residence at a
particular place accompanied by an intent to remain there
permanently or for an indefinite length of time. Ambrose v.
Vandeford, 277 Ala. 66, 167 So. 2d 149 (1964).
Subsequently, William filed a petition to probate the
decedent's 2007 will in Escambia County. The 2007 will
provided that William, as the personal representative, had the
discretion to probate the will in any county were the decedent
owned property at the time of her death. It is undisputed
that the decedent owned property in Escambia County at the
time of her death. Section 43-8-162(5) provides that probate
of a will is proper in the county designated by the testator
in the will if the testator owns property in that county at
the time of her death.
Alice challenges the validity of the 2007 will; William
challenges the validity of the 1995 will. Both challenges go
to the merits of the case, i.e., whether either of the
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tendered wills is entitled to be admitted to probate, and, if
so, which one. Simply because William has submitted a will
with a later date, which purports to revoke all prior wills,
does not mean that the 2007 will is valid, nor does it mean
that the Escambia Probate Court is the proper venue. The
legislature has provided for the proper venue in probate
matters when more than one probate court has venue. That is
what we have before us in this case. The Monroe Probate Court
is the proper venue under § 43-8-162(1), and the Escambia
Probate Court is the proper venue under § 43-8-162(5). The
legislature has determined that when there are multiple venues
for a probate proceeding, the probate court in which the
proceeding was first commenced shall have the exclusive right
to proceed. § 43-8-21(a). Section 43-8-21(b) provides that if
multiple proceedings are commenced in more than one probate
court and those proceedings involve the same estate, then the
probate court where the proceeding was first commenced shall
hear the matter, and the other court shall hold the matter in
abeyance until the question of venue is decided.
William cites DuBose v. Weaver, 68 So. 3d 814 (Ala.
2011), for the proposition that the administration of an
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estate does not begin merely upon the filing in the probate
court of a petition for letters of administration or of a
petition to probate a will and for letters testamentary.
DuBose involved a situation in which a party sought to remove
the administration of the estate from a probate court to a
circuit court under § 12-11-41. We concluded in DuBose that
the circuit court had not acquired jurisdiction, stating:
"In regard to the administration of estates, the
probate court is a court of general and original
jurisdiction. See Ala. Const. 1901, § 144; Ala.
Code 1975, § 12–13–1(b). The circuit court can
obtain jurisdiction over a pending administration of
an estate only by removing the administration from
the probate court to the circuit court pursuant to
Ala. Code 1975, § 12–11–41; see Ex parte Terry, 957
So. 2d 455, 457–58 (Ala. 2006); Ex parte McLendon,
824 So. 2d 700, 704 (Ala. 2001). ...
"'....'
"In Ex parte Smith, 619 So. 2d 1374, 1376 (Ala.
1993), this Court stated that '[t]he circuit court
cannot initiate the administration of an estate,
because the initiation of administration is a matter
exclusively in the jurisdiction of the probate
court.' As this Court more recently explained in Ex
parte Berry, 999 So. 2d 883 (Ala. 2008):
"'In stating in Ex parte Smith that
"[t]he circuit court cannot assume
jurisdiction over the administration of an
estate when the administration has not yet
begun," 619 So. 2d at 1375–76, this Court
was referring to subject-matter
jurisdiction. "Subject matter jurisdiction
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concerns a court's power to decide certain
types of cases." Ex parte Seymour, 946 So.
2d 536, 538 (Ala. 2006). Our decision in
Ex parte Smith relied on § 12–13–1, Ala.
Code 1975, which grants probate courts
"original and general jurisdiction" over
all matters enumerated in that statute,
including the probate of wills and disputes
over the right of executorship and
administration.'
"999 So. 2d at 887–88 (emphasis omitted).
"Further, the administration of an estate does
not begin merely upon the filing in the probate
court of a petition for letters of administration or
of a petition for probate of a will and for letters
testamentary. As to the former, this Court has
recognized that 'the mere filing of a petition for
the administration of an estate does not in itself
begin the administration; rather, the probate court
must act upon the petition and thereby activate the
proceedings, which may thereafter be subject to
removal to the circuit court.' Ex parte Smith, 619
So. 2d at 1376; see also, e.g., Allen v. Estate of
Juddine, 60 So. 3d 852, 855 (Ala. 2010) ('The
administration of the estate was initiated by the
probate court when it granted Willie Jr. letters of
administration.'); Ex parte Berry, 999 So. 2d at 886
('[T]his Court in Ex parte Smith[, 619 So. 2d 1374
(Ala. 1993),] held that removal of the will
proceeding from the probate court to the circuit
court was premature because the probate court had
not initiated the administration of the estate by
acting on the petition.'); and Ex parte Kelly, 243
Ala. 184, 187, 8 So. 2d 855, 857 (1942). As to the
latter, this Court has noted that, where no letters
of general administration have issued from the
probate court and where the decedent's will has not
yet been admitted to probate, the circuit court 'is
without jurisdiction to make an order' removing the
administration of the estate from the probate court
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to the circuit court. Ex parte Pettus, 245 Ala.
349, 351, 17 So. 2d 409, 410–11 (1944)."
68 So. 3d at 821-22. DuBose is distinguishable because it
involved the removal of the administration of an estate from
the probate court to the circuit court. Section 12-11-41,
Ala. Code 1975, expressly provides that the circuit court can
obtain jurisdiction over a pending administration of an estate
from a probate court only by removing the administration from
the probate court. The "administration" of an estate, so as
to allow the circuit court to have jurisdiction to order a
removal, does not begin upon the mere filing of a petition to
probate a will. Rather, the probate court must act by granting
the petition and opening an estate, either testate or
intestate, and issuing the appropriate probate letters to a
personal representative. Our holding in DuBose that
"administration" does not begin with the filing of a petition
to probate a will is not analogous with "commencing" a probate
proceeding under § 43-8-21. Section 43-8-21(b) involves venue
as between multiple probate courts, each with subject-matter
jurisdiction, and the question is in which probate court is
venue proper. For purposes of § 43-8-21, "commencing" is the
filing of the petition to probate a will or administer an
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estate in the probate court, whereas removal of a probate
proceeding to the circuit court is allowed only when the
probate court has acted upon a petition and created a probate
estate.
Based on the foregoing, we hold that venue in this case
is proper in the Monroe Probate Court, by virtue of § 43-8-162
and § 43-8-21. Any argument as to whether the 1995 will or
the 2007 will is the valid last will and testament of the
decedent and entitled to admission to probate is a question on
the merits and has yet to be determined. We reverse the
judgment of the Escambia Probate Court admitting the 2007 will
to probate and appointing William as a personal representative
because, under § 43-8-21, the Monroe Probate Court has the
"exclusive right to proceed." We remand the cause (probate
no. 10058) to the Escambia Probate Court, which shall set
aside its order admitting the 2007 will to probate and
appointing William as personal representative, recalling and
revoking any letters testamentary issued therewith. William's
petition filed in Escambia County shall be held in abeyance in
accordance with § 43-8-21(b). We reverse the judgment of the
Monroe Probate Court because it erred in dismissing Alice's
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petition to probate the 1995 will. We remand the cause
(probate no. 3330) to the Monroe Probate Court for proceedings
consistent with this opinion, i.e., to proceed with Alice's
petition to probate the 1995 will allegedly executed by the
decedent in light of its status as the first "commenced"
probate proceeding of the decedent's estate under § 43-8-21.
1130587 –- REVERSED AND REMANDED.
1130884 –- REVERSED AND REMANDED.
Moore, C.J., and Stuart, Parker, Murdock, Shaw, Main,
Wise, and Bryan, JJ., concur.
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