Korie Sterling Saylor v. Jonathan Fred Saylor, as personal representative of the Estate of Woodie Jim Saylor ( 2014 )

REL: 12/05/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1120848
____________________
Korie Sterling Saylor
v.
Jonathan Fred Saylor, as personal representative of the
Estate of Woodie Jim Saylor, deceased
Appeal from Marshall Circuit Court
(CV-12-0101)
MURDOCK, Justice.
Korie Sterling Saylor appeals from a summary judgment
denying her claim for an elective share of the estate of her
deceased husband, Woodie Jim Saylor. We affirm.
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I. Facts and Procedural History
Woodie and Korie married in October 2005. Woodie died in
May 2011. In addition to Korie, Woodie was survived by
Jonathan Fred Saylor, an adult son from Woodie's previous
marriage.
A few weeks after Woodie's death, Jonathan filed a
petition to probate Woodie's will in the Marshall Probate
Court.1 The petition also requested that the probate court
appoint Jonathan as personal representative of Woodie's estate
("the estate").
Woodie's will requests that Jonathan be appointed as
personal representative of the estate, and the will relieves
the personal representative of the obligations to provide a
bond and to file an inventory.2 In regard to the distribution
of the estate, Woodie's will states:
"I GIVE, DEVISE AND BEQUEATH all my property of
whatever nature and wherever situated, including any
property over which I may have a power of
1
Woodie's will appears to be self-proving. See Ala. Code
1975, § 43-8-132.
2
See Ala. Code 1975, § 43-2-851(c) (providing that a will
may "exempt the personal representative from giving bond");
Ala. Code 1975, § 43-2-311 (providing that a will may "exempt
an executor from filing an inventory"); see also Ala. Code
1975, § 43-2-835(b) (exemption from filing an inventory).
2
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appointment, to my son, JONATHAN FRED SAYLOR, if he
survives me. HOWEVER, I GIVE, DEVISE AND BEQUEATH
a life estate in and to my home and real property
where my wife and I reside at the time of my death,
to my wife, KORIE STERLING SAYLOR."
(Capitalization in original.)
Contemporaneously with the filing of the petition to
probate Woodie's will, Jonathan also filed a document executed
by Korie. In that document, Korie acknowledged that she had
received notice of the filing of the petition to probate
Woodie's will, and she consented to the admission of the will
to probate without further notice to her.3 See Ala. Code
3
The document executed by Korie states:
"I, THE UNDERSIGNED, being one of the heirs at
law and next of kin of WOODIE JIM SAYLOR, deceased,
do hereby acknowledge that I have notice of the
filing by JONATHAN FRED SAYLOR of the petition to
Probate the Last Will and Testament of said decedent
and the undersigned does hereby request the Court to
immediately admit said Last Will and Testament to
probate and record without further notice to me."
(Capitalization in original.)
Pursuant to the language of the above-quoted document,
Korie waived the right to further notice as to the admission
of Woodie's will to probate. In their appellate briefs, the
parties address whether the document also waived Korie's right
to claim an elective share from Woodie's estate. See Ala.
Code 1975, § 43-8-70 et seq. (statutes governing elective
share). This court has held that a waiver of the right to
claim an elective share must "clearly show[] an intention to
release" that right. Garrard v. Lang, 489 So. 2d 557, 561
3
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1975, § 43-8-164 (notice requirements for hearing to probate
a will).
On June 13, 2011, the probate court entered an order
admitting Woodie's will to probate and appointing Jonathan as
the personal representative of the estate ("the personal
representative").
Korie did not file a petition for an elective share
within six months after the will was admitted to probate. See
Ala. Code 1975, § 43-8-73(a) (elective-share petition must be
filed "within six months after the date of death, or within
six months after the probate of the decedent's will, whichever
limitation last expires"). On December 22, 2011, Korie filed
a "Request for Extension of Time to File Petition for Elective
Share." In that document, she asserted:
"2. The estate is still under administration
and has not been settled.
(Ala. 1986); see also Horne v. TGM Assocs., L.P., 56 So. 3d
615, 624 (Ala. 2010) ("'[A] waiver consists of a "voluntary
and intentional surrender or relinquishment of a known right,"
and the burden of proof in establishing a waiver rests upon
the party asserting the claim.'" (citations omitted)). No
language in the document Korie executed states, or might be
construed as stating, that Korie was waiving her right to
claim an elective share.
4
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"3. No accounting or inventory has been
filed;[4] the assets and liabilities are unsettled at
this point.
"4. An extension is necessary to enable the
widow to acquaint and familiarize herself of the
condition of her husband's estate and make an
intelligent election thereof.
"5. The spouse is not guilty of any conduct
which would tend to negate her right to an
extension.
"6. Refusing to extend the period would impose
an undue hardship upon the spouse.
"7. Spouse first consulted counsel on December
20, 2011, and first learned of her right to dissent
from the Will. Spouse had not been apprised of her
election right and files this request as soon as
practical with diligence upon notice. The widow is
entitled to the requested relief in equity.
"8. Alabama Code [1975,] § 43-8-73[,] is
remedial in nature and should be construed liberally
so as to give the broadest possible protection to
the surviving spouse."
Korie requested "a reasonable time to file a Petition for
Elective Share."
On January 12, 2012, the personal representative filed an
objection to Korie's request for an extension of time. The
4
As noted above, Woodie's will relieved the personal
representative from the statutory obligation to file an
inventory. Also, as of the date on which she filed her
request for an extension of time, Korie had not sought an
accounting from the personal representative.
5
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personal representative contended that, pursuant to
"§ 43-8-73, [Ala. Code 1975,] any extension of time to file
notice of election must be granted before the election period
has expired" and that, "[i]n order to be timely, the said
petition for elective share would have had [to have] been
filed by December 13, 2011." The personal representative
requested that the probate court deny Korie's request for an
extension of time.
Section § 43-8-73(a) provides:
"The surviving spouse may elect to take his elective
share by filing with the court and mailing or
delivering to the personal representative, if any,
a petition for the elective share within six months
after the date of death, or within six months after
the probate of the decedent's will, whichever
limitation last expires.
"The court may extend the time for election for
cause shown by the surviving spouse before the time
for election has expired."
(Emphasis added.)
On January 23, 2012, Korie filed a "Petition for Elective
Share," stating that she was claiming an elective share of the
estate and noting that she had filed a request for an
extension of time to do so on December 22, 2011.
6
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On February 14, 2012, the probate court entered an order
granting Korie's request for an extension of time and an order
allowing Korie's claim to take an elective share of the
estate. The latter order did not adjudicate the amount of
that elective share; it set a date on which the probate court
would conduct a hearing to determine that amount and then
enter a further order with respect thereto. See Ala. Code
1975, § 43-8-70(a) (providing that a surviving spouse's
elective share is "the lesser of (1) All of the estate of the
deceased reduced by the value of the surviving spouse's
separate estate; or (2) One-third of the estate of the
deceased"); see also Ala. Code 1975, § 43-8-73(d) ("After
notice and hearing, the court shall determine the amount of
the elective share and shall order its satisfaction from the
assets of the estate."); Ala. Code 1975, § 43-8-75(a) ("In the
proceeding for an elective share, values included in the
estate which pass or have passed to the surviving spouse, or
which would have passed to the surviving spouse but were
renounced, are applied first to satisfy the elective share and
to reduce any contributions due from other recipients of
transfers included in the estate.").
7
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In May 2012, the personal representative filed, in the
Marshall Circuit Court, a petition to remove the estate
administration from the probate court to the circuit court.
See Ala. Code 1975, § 12-11-41. Thereafter, the circuit court
entered an order removing the administration of the estate
from the probate court to the circuit court; the probate court
had not yet held a hearing to determine the amount of Korie's
elective share.
In November 2012, the personal representative filed in
the circuit court a motion for a summary judgment as to
Korie's claim for an elective share. The motion alleged that
the probate court should have denied Korie's claim on the
grounds that her petition was not timely filed and that, under
the circumstances presented, the probate court had no
authority to extend the time for Korie to exercise her right
of election.
Korie filed a response to the personal representative's
summary-judgment motion. Her response alleged:
"1. At some point on or before June 13, 2011,
the widow met with the attorney for the estate for
execution of a consent to probate the Will as
requested. ... Neither at that time, nor at any
time, did he advise her that he represented the
estate and that she should seek independent legal
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counsel nor was there any discussion of the assets
of the estate which would have allowed her to make
an informed decision where she was aware of her
options. Under the Will, she received a life estate
in the marital residence for which she is paying a
mortgage payment of $986.00 a month (26 years
remaining) as well as paying for half of a tractor
($22,000) in which she has no interest and which is
an asset of the estate.[5]
"....
"3. On or about the 20th day of December, 2011,
the widow first consulted with counsel regarding her
situation. Aside from having lost her husband seven
months before, she was unaware of the assets of the
estate and extent of his holdings. ... Counsel
immediately filed on the 22nd day of December, 2011,
a request for extension to file her petition for an
elective share of the decedent's estate (nine days
after the election period expired). Shortly
thereafter, counsel for the respondent reviewed the
probate records of Marshall County regarding the
real estate holdings of the decedent and ... filed
the widow's petition for elective share. Said
petition was granted by Order of the Probate Court
on February 14, 2012, granting the respondent's
petition for an elective share.
"4. Ala. Code 1975, § 12-22-21, provides the
basis for appeal from the Order, Judgment or Decree
of the Probate Court may be taken by the party
aggrieved to the Circuit Court or Supreme Court in
the cases specified and within the time frame for an
appeal, generally within forty-two days after a
determination. No appeal, timely or otherwise, has
been made regarding the Order of the Probate Court
regarding the extension of time granted or the order
granting the elective share requested by the widow."
5
The record does not reflect the bases for Korie's
obligations as to the mortgage and the tractor.
9
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In support of her response, Korie filed an affidavit that
states:
"I am Korie Sterling Saylor, widow of the
decedent, Woodie Jim Saylor, and respondent in this
case. This case involves an elective share
regarding my deceased husband's estate. At the time
of his death, my husband was in the cattle business;
after his death I worked as a waitress at the El
Rancho restaurant. I was aware that he owned cattle
and llamas, equipment and land, I was unaware of the
specifics of the business operation and the
condition of his estate. At some point on or before
June 13, 2011, I met with Clint Maze, the attorney
for the estate, regarding execution of the consent
to probate the Will as he requested. Neither at
that time nor at any time, did he advise me that he
represented the estate and that I should seek
independent legal counsel nor was there any
discussion of the assets or composition of the
estate. Under the terms of the Will, I received a
life estate in our residence. I am currently paying
$986.00 a month with 26 years remaining on the
mortgage for our house and the 9.09 acres, as well
as, paying for half of a tractor ($22,000) that
belongs to the estate."
In January 2013, the circuit court entered an order
granting the personal representative's motion for a summary
judgment. The order states that Korie
"claims that the attorney for the estate obtained
her signature on the waiver and consent to probate
the will without explaining that said attorney
represented the estate, and further, that his estate
consisted of much more than she was aware. Counsel
for the estate argued in oral arguments, without
objection from Korie, that he provided her with a
copy of the will for her to read and he did not
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advise her. The waiver is clear and unambiguous as
to its content and clearly consents to admitting the
will to probate.
"[Korie] then waited more than six months to
seek legal counsel relating to taking any action
relating to taking an elective share. The statute
within which to file requesting an extension of time
had already run before she took any action to elect.
Her attorney promptly took action and filed a motion
the day following her first visit with her attorney.
[Korie] claims that the Probate Court of Marshall
County issued an order allowing an extension of time
and that such was an appealable order to this Court
and that the personal representative's failure to
appeal the order timely makes it a final order and
that this Court has no authority to set the order
aside. This case was removed from probate to this
Court after the order allowing the extension of time
was granted and after the appeal time for an order
from probate court that must be appealed.
"The probate Court without question has
jurisdiction over granting or refusing to grant the
right to elect a distributive share, but there are
certain types of orders appealable from probate
court to this Court or the Alabama Supreme Court as
set out in §§ 12-22-20 and -21, Code of Alabama
1975, and the Court finds the order granting an
extension of time to file an elective share is not
one of the specified orders that must be appealed.
Therefore, since the estate was removed from probate
to this Court, the Court determines it has
jurisdiction to determine the issue of whether or
not the order granting an extension of time should
be altered, amended, or vacated.
"....
"The Court ... find[s] that the Estate has
raised an affirmative defense of the applicable
statute of limitations and having found no fraud or
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undue influence and the undisputed evidence shows
clearly [Korie] did not rely on legal advice from
the estate's attorney, as well as having failed to
file her election within the initial six months
allowed by § 43-8-7[3], Code of Alabama 1975, after
having been furnished with a copy of the will and
waiving a hearing on admitting the will to probate,
this Court determines the following:
"1. There is no genuine issue of material
fact relating to this issue, and
"2. The Estate is entitled to a judgment
as a matter of law."
The order concludes by setting aside the order granting Korie
an extension of time in which to file her claim for an
elective share and by dismissing Korie's petition for an
elective share. Korie filed a postjudgment motion, which the
circuit court denied. Korie appeals.
II. Discussion
A. Appealability of February 2012 Order Granting An Elective
Share
Korie first argues that the probate court's February 2012
order "granting" her petition for an elective share was an
appealable order under § 12-22-21(4), Ala. Code 1975, which
provides for an appeal "on the decision of the [probate]
court, in proceedings instituted to compel the payment of a
legacy or distributive share, at any time within 42 days after
12
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such decision." (Emphasis added.) Korie contends that the
personal representative's failure to appeal that February 2012
order resulted in that order becoming the law of the case.
Korie's argument misapprehends the nature of the probate
court's orders that are at issue and/or the import of § 12-22-
21(4).
Assuming for the sake of argument that § 12-22-21(4)
applies to a surviving spouse's claim for an "elective share,"
the condition otherwise described in that statute is not met
here. The probate court entered two preliminary orders, an
order granting an extension of time for Korie to petition for
an elective share and an order stating that Korie was entitled
to an elective share. As noted, the latter order did not
adjudicate the amount of that elective share but set a date on
which the probate court would conduct a hearing to determine
the amount of the elective share.
As also noted, a surviving spouse's elective share is
determined through the application of a formula. Pursuant to
the elective-share formula, a surviving spouse's elective
share is "the lesser of (1) All of the estate of the deceased
reduced by the value of the surviving spouse's separate
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estate; or (2) One-third of the estate of the deceased." Ala.
Code 1975, § 43-8-70(a). Based on the nature of the elective-
share formula, determining a surviving spouse's right to
receive an elective share of the estate requires the court
considering the issue to determine the value of the share to
which the surviving spouse is entitled. See also Ala. Code
1975, § 43-8-73(d) ("After notice and hearing, the court shall
determine the amount of the elective share and shall order its
satisfaction from the assets of the estate.").
But neither of the probate court's February 2012 orders
determined the share, if any, to which Korie might be
entitled. That is, they did not resolve Korie's claim for an
elective share. Neither order compelled any payment, or
denied any claim for payment, of any portion of the estate.
Neither order represents "the decision" of the probate court
"in [a] proceeding[] instituted to compel the payment of a
legacy or distributive share" contemplated by the statute.
Neither order was appealable as "the decision" of the probate
court in the "proceeding[] instituted to compel the payment of
a legacy or distributive share" under § 12-22-21(4). See,
e.g., Dempsey v. Dempsey, 899 So. 2d 1272, 1273 (Fla. Dist.
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Ct. App. 2005) (holding that an order determining entitlement
to an elective share, but not the amount of the share, is a
"nonfinal and nonappealable" order). See generally
Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 361-
62 (Ala. 2004) (holding that, where the amount of a monetary
claim is at issue, a judgment that adjudicates liability, but
not the amount of the claim, is not a final judgment); Banyan
Corp. v. Leithead, 41 So. 3d 51, 54 (Ala. 2009) (noting that
an appealable judgment is one that finally and conclusively
adjudicates the substantive rights of the parties). As a
result, the February orders were not appealable and, indeed,
remained subject to revision by the probate court or, as in
this case, by the circuit court upon proper removal of the
administration of the estate. See Rule 54(b), Ala. R. Civ. P.
See also Ala. Code 1975, § 12-13-12 (stating that the rules of
practice in circuit courts generally are applicable in probate
courts); Ala. Code 1975, § 12-11-40 (stating that the Alabama
Rules of Civil Procedure generally are applicable in
proceedings for the administration of estates removed to the
circuit court).6
6
Rule 1(a), Ala. R. Civ. P., was amended effective January
1, 2013, to provide that, subject to certain exceptions, the
15
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In contrast, the circuit court's eventual order
dismissing Korie's petition fully adjudicated Korie's claim
that she was entitled to receive an elective share of Woodie's
estate, and that order is appealable. See Rogers v. McLeskey,
225 Ala. 148, 149, 142 So. 526, 527 (1932) (noting that order
denying "right of homestead and exemption by the alleged widow
of decedent, after she had filed an alleged dissent as widow
from the will," was "final" and "appealable").
B. Extension of Time to Exercise Right of Election
Korie next argues that the circuit court erred because it
"failed to apply principles of equity as a basis to allow
Korie additional time beyond the six-month limitation of
§ 43-8-73 to make a decision regarding taking an elective
share." Specifically, Korie argues that equity requires a
court to allow an untimely filed claim for an elective share
where:
1. The surviving spouse was "ignorant" of her right
to dissent from the will and to claim an elective
share;
Alabama Rules of Civil Procedure apply in probate court
proceedings. See Committee Comments to Amendment to
Rule 1(a), effective January 1, 2013.
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2. The attorney for the estate did not inform the
surviving spouse of her right to dissent from the
will and to claim an elective share;
3. The attorney for the estate did not "advise" the
surviving spouse to obtain independent counsel; and
4. The surviving spouse filed her request for an
extension of time nine days after the limitations
period applicable to her request for an extension of
time.7
Korie supports her argument by asserting the general
principle that "'[t]he widow is a favorite of the law'" and
7
Korie also states that "the denial of an elective share
would impose an economic hardship upon" her, and Korie notes
that she "worked as a waitress at a Mexican restaurant when
these issues were before the circuit court." Although Korie's
affidavit avers that she worked in a Mexican restaurant after
Woodie's death, she made no averment that, and presented no
other evidence that would support the conclusion that, "the
denial of an elective share would impose an economic hardship
upon" her.
Also, Korie concedes that Woodie left an investment
account as a nonprobate asset and that the account was equally
divided between her and Jonathan. The record contains no
information concerning the amount of the investment account.
In his appellate brief, the personal representative describes
the account as "very sizeable"; in Korie's reply brief, she
"denies" that the amount she received from the account could
be described as even being "sizeable," much less "very
sizeable." But the existence of the investment account and
any impact it might have as to the matters at issue were not
among the matters presented to the circuit court. Thus, we
will not consider those matters either. See, e.g., Andrews
v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992) ("This
Court cannot consider arguments raised for the first time on
appeal; rather, our review is restricted to the evidence and
arguments considered by the trial court.").
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that statutes governing dower rights should be liberally
construed. Perrine's Ex'rs v. Perrine, 35 Ala. 644, 647
(1860). More specifically, she argues that the "liberality"
of equity as to the rights of a widow "is reflected in the
comments made by this Court" in Adams v. Adams, 39 Ala. 274
(1864), and in Steele v. Steele's Adm'r, 64 Ala. 438 (1879),
both of which discuss the widow's right to dower, a common-law
right the elective share has displaced.8 Further, Korie
references Ala. Code 1975, § 43-8-3, which states: "Unless
displaced by the particular provisions of this chapter, the
principles of law and equity supplement its provisions." And
Korie refers to a few cases from other jurisdictions in which
courts have applied principles of equity and allowed an
untimely claim for an elective share. As discussed below,
however, those cases are distinguishable.
8
As the Commentary to § 43-8-70 states:
"Under the common law, a widow was entitled to
dower, which was a life estate in a fraction of
lands of which her husband was seized of an estate
of inheritance at any time during the marriage.
Dower encumbers titles and provides inadequate
protection for widows in a society which classifies
most wealth as personal property. Hence states have
tended to substitute a forced share in the whole
estate for dower and the widower's comparable
common-law right of curtesy."
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As noted above, the elective share is a creation of the
legislature, and the statutes creating the "right of election"
also establish the conditions applicable to the exercise of
that right. See, e.g., § 43-8-70(a) ("If a married person
domiciled in this state dies, the surviving spouse has a right
of election to take an elective share of the estate."); Ala.
Code 1975, 43-8-71 ("The right of election of the surviving
spouse may be exercised only by the surviving spouse during
his lifetime."). Those conditions include filing a claim for
an elective share or a request for an extension of time within
the limitations period imposed by § 43-8-73(a).
Provided a request for an extension of time is timely
filed, § 43-8-73(a) gives the trial court discretion to
"extend the time for election for cause shown." As one court
has explained:
"The elective share statute is like a statute of
limitations in that it delineates a specified period
of time during which a party must act. However, the
statute is more explicit than a 'statute of
limitations' in that it expressly permits the court
to extend the election period, whereas a statute of
limitations is silent on the rights of the court to
extend any such period. Further, the elective share
statute gives explicit instructions to the court
regarding when it may act, limiting this ability to
'[b]efore the time for election has expired.' [N.J.
Stat. Ann. §] 3A:38A–5(a)."
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McKay v. Estate of McKay, 184 N.J. Super. 217, 222-23, 445
A.2d 473, 475 (Law Div. 1982), aff'd, 188 N.J. Super 44, 455
A.2d 1142 (App. Div. 1983); see also, e.g., Moise v. Moise's
Ex'r, 302 Ky. 843, 845, 196 S.W.2d 607, 608 (1946) ("[T]he
Court ... is without power to grant additional time to
determine whether or not to renounce, unless application be
made therefor within the time prescribed by Statute for the
election."); see also Bunker v. Murray, 182 Mass. 335, 336, 65
N.E. 420, 421 (1902)("The statute has pointed out the way for
an extension of time, and the probate court has no power,
after the expiration of six months from the first probate of
the will, to allow the widow to waive the provisions of the
will, or to claim such portion of his estate as she would have
been entitled to if her husband had died intestate."); In re
Estate of Zweig, 145 Misc. 839, 856-57, 261 N.Y.S. 400, 419-20
(Sur. Ct. 1932)("[T]he statute has granted surrogates a
discretionary power to extend the period for making the
election only before the expiration of the initial statutory
six months allowed for the purpose. On fundamental principles
of statutory construction, inclusio unius est exclusio
alterius. No power is given for an extension after the
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expiration of the time, and in the absence of such a grant of
power, it cannot be held to exist. ... [T]he court is
powerless to grant relief after the expiration of the initial
six months' period in the absence of a demonstration of active
fraud having been practiced upon the surviving spouse.").
The McKay court further noted that
"[p]laintiff did not apply to the court for an
extension of time to elect, as she should have under
[N.J. Stat. Ann. §] 3A:38A–5(a). Even assuming that
the information she needed to make a reasoned
decision was not made available within the six-month
period (a situation which plaintiff did not convey
to the executor), the burden is on the surviving
plaintiff/spouse to apply for an extension of the
period for 'good cause' within the six months. Id.
If plaintiff believed she lacked sufficient
information, she should have, for that reason alone,
made application to the court for an extension.
Plaintiff's argument that she was not provided with
sufficient information could be construed as 'good
cause' under the statute, enabling her to apply for
an extension. The Legislature anticipated such
circumstances and provided a procedure with which
plaintiff did not comply.
"....
"The denial of plaintiff's motion may seem harsh
in that she was apparently prepared to make an
election against the Will only one month after
expiration of the time period. However, it is a
legislative prerogative to amend a statute, not the
court's."
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McKay, 184 N.J. Super. at 223-24, 445 A.2d at 475-76; see also
In re Estate of Rehfuss, 65 Wis. 2d 409, 414, 222 N.W.2d 617,
620 (1974)("The power granted to the trial court [as to an
extension for filing an election] by [Wis. Stat. Ann.
§] 861.11(3) ... could not be exercised because the one-year
period had expired."); In re Estate of Faller, 407 Pa. 73, 77,
180 A.2d 33, 35 (1962) ("[One-year] time requirement [for
election] is mandatory and cannot be extended except upon
proof that the surviving spouse, by actual fraud, has been
induced or misled to delay the election.").
Likewise, in In re Estate of Hartt, 75 Wyo. 305, 295 P.2d
985 (1956), Pearl Hartt, the surviving spouse, filed an
"action in equity ... to permit [her] to dissent
from the will [of her deceased husband]. ... She
alleged in substance that she did not know of her
right to elect to take against the will of the
deceased; that she did not know the extent and value
of the estate; that she was ignorant of the impact
of Federal taxes on the estate; that she was not
advised of her rights by the executors of the estate
in whom the testator and plaintiff had reposed trust
and confidence, nor was she advised of her rights by
any one else."
75 Wyo. at 329, 295 P.2d at 989. The pertinent Wyoming
statute required the surviving spouse to file his or her
election within six months after the probate of the deceased
22
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spouse's will. Pearl did not file her equity action until
15 months after the probate of her husband's will.
Nevertheless, the trial court granted Pearl's petition, and
the personal representative and one of the decedent's heirs
appealed.
The Wyoming Supreme Court surveyed the law of other
jurisdictions concerning whether equity might be invoked to
provide relief under such circumstances, and noted:
"The decisive decisions on the point, pro and con,
are absolutely irreconcilable, although we have
diligently sought some ground on which they could be
reconciled. ... There are but few points on which
the courts are generally agreed, namely, when fraud
and the like appears by reason of which the widow
has been silent, relief may be granted, for fraud
vitiates everything. No fraud or the like appears
in the case at bar. So, too, the courts hold that
if the widow wants to change her mind during the
period fixed in the statute, she may do so. ...
There also may be very exceptional circumstances
under which the time fixed by statute is not
controlling."
75 Wyo. at 330-31, 295 P.2d at 990.
The Hartt court noted that some courts had concluded that
equity could intervene to allow an untimely election because
those courts adhered to the common-law rules concerning
election. In contrast, as to those courts that had rejected
the intervention of equity, the Hartt court stated that that
23
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"class of cases seems to have two sources. In the
first place we have the general rule that mandatory
statutes must be obeyed and that the courts have no
right to make a law contrary to that prescribed by
the legislature. In the second place the beginning
at least of considering statutes mandatory in cases
such as before us is clearly found in the fact that
such statutes were enacted for the express purpose
of remedying the evils of the law of election in
such cases under the common law. ... The earlier
cases are clear on the subject. Stephens v. Gibbes,
14 Fla. 331, 357, 358 [(1873)], discusses the common
law at some length. It points out that at common
law no election was necessary except in certain
cases; again that there was no limit of time in
which an election by a widow was necessary to be
made. The court states that any one who knows
anything about the history of election in such cases
knows the mischief that existed at common law, and
that the enactment of statutes by the legislature on
the subject 'originated in the desire and necessity
for curing the evils incident to the common law
rules upon these subjects.'"
75 Wyo. at 333, 295 P.2d at 991; accord Hilliard v. Bindford's
Heirs, 10 Ala. 977, 991 (1847) ("The evil intended to be
obviated" by the legislature's enactment of a statutory time
limit as to the assertion of the widow's right to receive her
dower interest "was the difficulty which previously existed of
ascertaining when and how an election was to be made by her.
... This seems to have been the only change made by the
statute in the existing law -– a fixed, a definite term was
introduced within which she is compelled to signify her
24
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dissent to the will; and if this is not made, it then, if any
provision [in the will] is made inconsistent with her right
under the statute, becomes obligatory on her.").
The Hartt court further reasoned:
"[T]he courts have held that a statute like ours
fixing the time in which a surviving spouse must
dissent from the will has been held to be a statute
of limitation, and it is said that a court of equity
may not give relief from such a statute no matter
what hardship may be created, unless, perhaps, it be
by reason of fraud or the like. In re Zweig's Will,
145 Misc. 839, 261 N.Y.S. 400 [(Sur. Ct. 1932)].
Thus the Colorado Supreme Court, which, as noted,
held the failure to elect to be conclusive on the
rights of the widow, in the later case of In re
Stitzer's Estate, 103 Colo. 529, 87 P.2d 745, 120
A.L.R. 1266 [(1939)], designates the statute as a
statute of limitation. Other cases to the same
effect are Schweer v. Schweer, Mo. App., 86 S.W.2d
969 [(1935)]; Ludington v. Patton, 111 Wis. 208, 86
N.W. 571 [(1901)]; In re Zweig's Estate, 145 Misc.
839, 261 N.Y.S. 400; Akin v. Kellogg, 119 N.Y. 441,
23 N.E. 1046 [(1890)]. ...
"....
"Numerous cases announce the rule that under a
statute similar to ours, the surviving spouse must
dissent from the provisions of the will within the
time fixed by statute, excepting cases involving
fraud or the like. ...
"....
"In Stearns v. Stearns, 103 Conn. 213, 130 A.
112, 116 [(1925)], the court stated:
25
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"'The statute is too plain to require
construction. The will did give to the
husband a portion of the estate of the
testatrix. The husband made no election in
writing as to whether he would accept or
reject the provisions of the will in lieu
of his statutory share as husband of the
testatrix. The terms of this statute are
explicit, and however unfortunate the
result, the facts of record bring the case
exactly within the statute and require us
to hold that the husband "shall be taken to
have accepted the provisions of the will,
and shall be barred of said statutory
share."'
"[In] In re Daub's Estate, 305 Pa. 446, 157 A.
908, 911, 81 A.L.R. 735 [(1931)], the court stated:
"'No matter how hard the decision in
a particular case may seem to be, if a
widow does not make her election within the
statutory period, the courts, because of
that act, must declare that she is deemed
to have made an election to take under the
will, for this "statute here fixes the time
as definitely as does that relating to
taking appeals, and both are mandatory. ...
In view of the positive provisions of the
statute we are not persuaded that relief
could be granted ex gratia." In re
Minnich's Estate or Sherwood's Estate, 288
Pa. 354, 358, 136 A. 236, 237 [(1927)].
"'A different conclusion will, of
course, be reached in cases where actual
fraud has been committed to obtain the
widow's election, and no laches appears,
for fraud vitiates everything it touches.'
"....
26
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"Notwithstanding [a] great array of
authorities[] in which the courts have considered
the statutory provisions to be mandatory, counsel
for respondents contend that we should follow the
common law rule of election, in which time is not
considered to be of the essence, and that equity
will give relief. We have already seen that
Stephens v. Gibbes, 14 Fla. 331 [(1873)], and
Collins v. Carman, 5 Md. 503 [(1854)], followed by
another Maryland case, hold the contrary. Perhaps
the leading case on the subject before us, because
of the comprehensive discussion of all the phases on
this subject, is In re Zweig's Estate, 145 Misc.
839, 261 N.Y.S. 400. Counsel for respondents say
that the case is distinguishable because the probate
court of New York has no equitable jurisdiction.
But it has jurisdiction, by statute, to extend the
time within a limited period, which itself seems to
be equitable in its nature. Further the court
expressly considers the subject of whether or not a
court of equity can give relief after the expiration
of the time fixed by statute, and states that courts
of equity are powerless to vary the direct mandate
of legislative enactments as are courts of law, and
that this has been determined on innumerable
occasions."
75 Wyo. at 339-43, 295 P.2d at 995-96 (emphasis added;
emphasis omitted).
The Hartt court concluded that it was "constrained to
hold that our statute hereinbefore quoted is mandatory, and
that [Pearl] Hartt had no right to dissent from the will after
the expiration of six months mentioned in the statute." 75
Wyo. at 346, 295 P.2d at 998. And, of particular import to
27
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our consideration of Korie's arguments in the present case,
the Hartt court noted that Pearl
"contends that the executors should have advised her
of her rights. It is stated in 90 C.J.S., Trusts,
§ 247, p. 225 that: 'By accepting the trust, a
trustee (executors are trustees) becomes bound to
administer it, or to execute it, in accordance with
the provisions of the trust instrument and the
intent of the settlor.' In determining his duty,
the intention of the testator is of controlling
importance. ... Hence the first and primary duty
of the executors in this case was to see that the
intent of the testator was carried out. It was not
their duty, in fact it would have been a violation
of their duty, to do anything that would nullify the
provisions of the will. True the executors had no
right to defraud the widow or by chicanery induce
her not to dissent from the will. But no fraud or
chicanery is shown herein. The court in Stephens v.
Gibbes, 14 Fla. 331, 356 [(1873)], stated:
"'Neither the executors, the other
devisees or legatees, not the creditors,
are in any legal sense under an obligation
to give the widow notice of the provisions
of the will. The law presumes her
knowledge of the will and its contents as
well as her knowledge of her right of dower
and its nature, and she is bound to know
that if she omits for the space of one year
to signify her dissent, she cannot claim
dower.'
"That, of course, applies as well to her right
to take under the statute or descent and
distribution."
75 Wyo. at 348, 295 P.2d at 999; see also, e.g., In re Estate
of Pritchard, 37 Kan. App. 2d 260, 272-73, 154 P.3d 24, 33
28
1120848
(2007) (holding that, absent a statutorily created obligation,
a personal representative or his or her attorney has "no duty
... to inform or give notice to [the surviving spouse] of [his
or] her homestead and/or spousal rights").9 See also Allen
v. Guthrie, 469 So. 2d 204, 205-06 (Fla. Dist. Ct. App. 1985)
("A surviving spouse has no right to an elective share absent
a timely election to take that share. Order and finality in
the administration of estates, as is reflected in [the
elective-share statute's] time limits, are paramount concerns;
9
In some states, the personal representative is
statutorily required to disclose the financial status of the
estate to the surviving spouse where the surviving spouse
requests such disclosure. See, e.g., Tenn. Code Ann. § 31-4-
103. In such states, where the spouse requests disclosure and
the personal representative fails timely to provide the
information required by the statute, "the statutory time for
filing a dissent will not bar the widow from making that
election." Merriman v. Jones, 620 S.W.2d 88, 91 (Tenn. Ct.
App. 1981). Alabama has no such requirement as part of its
elective-share statutory scheme.
Also, we note that Korie is not arguing that the attorney
for the estate had a legal duty to inform her that she had a
right to claim an elective share; Korie states in her reply
brief that "that argument has actually never been made."
Nevertheless, Korie states that this Court should "recommend"
that counsel for the estate inform the surviving spouse of his
or her right to claim an elective share "in every instance.
... A counsel for the estate should not favor the individual
rights of the person named as administrator of the estate."
We must decline Korie's invitation.
29
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and failure to elect within the period prescribed by the
Legislature bars a claim."); Downes v. Downes, 388 Md. 561,
578, 880 A.2d 343, 353 (2005) ("When [the] period [for filing
a request for an extension of time] expires, the authority to
extend it expires as well. The same underlying principles
apply: there has been no retreat from the principle that the
ability to renounce a Will in favor of a statutory share is to
be strictly construed and the law still favors the expeditious
administration and early settlement of Estates." (citation
omitted)); In re Estate of Kruegel, 551 N.W.2d 718, 719
(Minn. 1996) (affirming the denial of an untimely filed
"notice of election" where the surviving spouse failed to
timely request an extension of the time in which she must
elect and rejecting surviving spouse's argument that equity
should relieve her of the pertinent time limitations because
she had been "actively engaged in negotiations with the estate
as to how the distributions should be made"); In re Estate of
Hesemann, 214 Neb. 842, 336 N.W.2d 568 (1983) (affirming the
denial of the surviving spouse's untimely claim for an
elective share where the surviving spouse failed to establish
that the attorney for the estate had made any material
30
1120848
misrepresentation in response to the surviving spouse's
inquiries concerning his right to file a claim for an elective
share); Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93
(1994)(requiring strict compliance with elective-share statute
and denying untimely petition); and In re Estate of
Lingscheit, 387 N.W.2d 738, 741 & n. (S.D. 1986) (holding that
the trial court should have denied the surviving spouse's
petition for an elective share where it was filed three weeks
after the pertinent time limit and she "could have requested
an extension before her time expired" but did not).10
As to the Alabama cases cited by Korie in support of her
argument, we first note that in Adams this Court addressed the
issue whether a widow who had timely filed a claim for dower
could prosecute that claim even though she had accepted money
that had been bequeathed to her in her deceased husband's
will: "Can she, while retaining all the property bequeathed
to her ..., recover dower in the probate court?" 39 Ala. at
279. The Adams Court concluded that she could not. In so
doing, the Court noted that the widow had "elected" to receive
10
Estate of Lingscheit was superseded, in part, on other
grounds, as recognized in In re Estate of Geier, 809 N.W.2d
355, 358 (S.D. 2012).
31
1120848
what the will provided for her by accepting property pursuant
to the terms of the will. But, the Court continued:
"Although she may have made an election, she is
not concluded by it, if made in ignorance of the
circumstances calculated to influence her choice.
But we are not to infer from the expression that she
is not concluded by an election unadvisedly made,
that she can treat her election as a nullity, while
she retains all that she may have received by virtue
of the election. On the contrary, it is manifest
justice, that she should avoid the election, only
upon a restoration of what she has received. Such
is also the teaching of the cases upon the subject.
Having made an election, she must abide by it as
long as she retains the legacy which she has
received. If she has been defrauded, or if she has
made an unadvised election, her remedy is in equity,
to obtain relief upon the restoration of the benefit
she has taken under the will."
39 Ala. at 280 (citations omitted).
The foregoing discussion from Adams is of no avail to
Korie. Unlike Korie, the widow in Adams timely asserted her
right to dower. The issue in Adams was not whether equity
permitted a widow to pursue an untimely claim for her
statutory right to "take against the will," i.e., her claim
for dower, but whether equity permitted a widow to revoke her
decision to receive the property bequeathed her under the will
and to pursue a timely filed claim to take against the will.
As the Adams Court noted, equity did permit such a revocation,
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provided the widow "restor[ed] ... the benefit she has taken
under the will." But Adams does not stand for the proposition
that equity allows a widow to pursue an untimely claim for the
statutory rights granted to her.11
As to Korie's argument from Steele, in which this Court
held that the widow there was not entitled to belatedly assert
her right to dower, Korie contends that this Court impliedly
recognized that equity may excuse an untimely election. She
draws her conclusion from the following statement by the
Steele Court: "[I]f there be an extension of time within
which to elect, under an equitable construction of our
statute, neither the pleadings nor proofs in the present
record justify its exercise." 64 Ala. at 461.
The language quoted by Korie may be read as implying that
equity can be used to evade the statutory time limits
11
Also, allowing a widow to revoke the exercise of her
statutory rights and to accept the provisions of the deceased
spouse's will is materially different than allowing a
surviving spouse to untimely assert her statutory rights and
thereby disrupt the provisions of the deceased spouse's will.
In the former circumstance, the surviving spouse is not
thwarting any purpose expressed by the legislature. In the
latter circumstances, however, the surviving spouse would be
thwarting the legislature's purpose as to the timely assertion
of the surviving spouse's rights, and, unlike the former
circumstance, the surviving spouse would also be thwarting the
execution of the will according to its terms.
33
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applicable to the exercise of a surviving spouse's statutory
rights vis-à-vis the deceased spouse's estate. But a closer
reading of Steele reflects that Korie's claim is nevertheless
unavailing. The Steele Court stated:
"The statute law of this State provides that the
widow, for whom provision has been made by the will
of her deceased husband, may dissent from such
provision, and 'take her dower in the lands, and of
the personal estate such portion as she would have
been entitled to in case of intestacy.' Code of
1876, § 2292. 'Such dissent must be made in
writing, and deposited within one year from the
probate of the will,' &c. -- Ib. § 2293. It would
seem that the language of this statute is
imperative, and, to be availing, the dissent must be
deposited within one year after the probate of the
will."
64 Ala. at 461 (emphasis added).12 The Steele Court continued:
"But, if there be an extension of time within
which to elect, under an equitable construction of
our statute, neither the pleadings nor proofs in the
present record justify its exercise. There is no
averment, and no attempt at proof, that Mrs. Steele
was at any time ignorant of any fact or
circumstance, calculated to influence her choice.
Neither is it shown, or even possible, that she can,
12
The Steele Court referenced Adams and acknowledged that
equity permitted a widow to revoke "'an election ... made in
ignorance of the circumstances calculated to influence her
choice,'" "'upon restoration of what she has received.'" 64
Ala. at 461 (citations omitted). But, as noted above, Adams
did not concern the issue whether a widow could pursue an
untimely filed claim.
34
1120848
by restoration, place the property of the estate in
statu quo. More than twenty years ago, she was in
possession of the property devised to her by the
will, and it is not shown she has ever been
disturbed in its enjoyment. It is clear that no
adverse claim was asserted during the administration
of the executor, which lasted more than thirteen
years. She has no right now to dissent from the
provisions of the will, and claim dower in the lands
of which her husband died seized. -– See Collins v.
Carman, 5 Md. 503 [(1854)]."
64 Ala. at 461-62 (emphasis added).
In turn, in Collins v. Carman, 5 Md. 503 (1854), which
the Steele Court cited in support of the foregoing discussion,
the surviving spouse, who was insane, died four years after
her husband. The administrator of her estate attempted to
belatedly assert the deceased wife's right to dower, i.e., to
take against the will. The trial court rejected the claim,
and the Maryland Court of Appeals affirmed its judgment. The
Collins court noted that "[t]he law admits of no excuse for a
failure to renounce. ... To acquire ... rights in opposition
to the will, the law makes the renunciation [of the will] a
necessary act." 5 Md. at 530-32. See generally 2 John Norton
Pomeroy, Equity Jurisprudence § 513a (5th ed. 1941) ("In very
many of the states statutes have been passed which prescribe
definite periods of time within which the right of election
35
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between dower and a provision made by will must be exercised.
[... If dissent is not indicated within the prescribed time
and in the manner required by law, the widow is conclusively
presumed to have elected to take under the will, no matter how
hard the decision in a particular case may seem to be. This
is so except in cases of fraud, and perhaps under some other
exceptional circumstances.]" (bracketed material added by
Spencer W. Symms, ed.)).
Also, as to any analogy that might be drawn from our
precedents regarding dower, we find it instructive that in
Hilliard, supra, we stated that "the evil intended to be
obviated" by the legislature's enactment of a statutory time
limit as to the assertion of the widow's right to receive her
dower interest
"was the difficulty which previously existed of
ascertaining when and how an election was to be made
by [the widow]. ... This seems to have been the
only change made by the statute in the existing law
-– a fixed, a definite term was introduced within
which she is compelled to signify her dissent to the
will; and if this is not made, it then, if any
provision [in the will] is made inconsistent with
her right under the statute, becomes obligatory on
her."
10 Ala. at 991. Also, in McGhee v. Stephens, 83 Ala. 466, 3
So. 808 (1888), this Court noted that the statutory procedures
36
1120848
enacted regarding dower claims were "intended to provide for
a speedy and summary election" and that "failure to dissent
within one year from the probate of the will bars [the
widow's] right of dower." 83 Ala. at 469, 3 So. at 810. See
also Sanders v. Wallace, 118 Ala. 418, 426, 24 So. 2d 354, 356
(1898)("We are of opinion, that the widow by her failure to
dissent from the provisions of her husband's will, in the time
and manner required by the statute, is barred of her right of
dower in her husband's lands ...."); Vaughan v. Vaughan's
Heirs, 30 Ala. 329, 333 (1857) (holding that surviving
spouse's "failure to signify her dissent from the will, within
one year after its probate, is a bar to her right of dower").
As it did by adopting a time limit for the assertion of
a dower claim, the legislature adopted a limitation period for
the surviving spouse's assertion of his or her right to elect
against the will. There is no indication that the purposes of
the time limitation as to the right of election are any
different from the purposes for a dower claim, namely
certainty as to the assertion of the surviving spouse's rights
that could adversely affect the will and efficiency as to the
administration of the estate. To allow an untimely claim
37
1120848
would be directly contrary to those purposes and unwarranted
in the absence of "fraud or the like." The circuit court in
the present case found "no fraud or undue influence." The
lack of justification for allowing an untimely claim under
such circumstances is bolstered by the fact (1) that a
surviving spouse may timely request an extension of time until
he or she can obtain information concerning the assets
composing the estate, see Ala. Code 1975, § 43-8-73(a)
(providing that a timely filed request for an extension of
time may be granted "for good cause shown") and (2) that the
legislature has limited any prejudice the surviving spouse
might suffer from asserting his or her right of election based
on insufficient information. Ala. Code 1975, § 43-8-73(c)
("The surviving spouse may withdraw his demand for an elective
share at any time before entry of a final determination by the
court.").
In addition to Korie's reliance on the above-referenced
Alabama cases, she also relies on a few cases from other
jurisdictions that have allowed a surviving spouse to pursue
an untimely filed claim for an elective share. We find those
cases either to be distinguishable from the present case or
38
1120848
simply to be contrary to the much greater and more compelling
body of authority described above.
To take one example, Korie cites In re Estate of Bersin,
98 Ohio App. 432, 129 N.E.2d 868 (1955). That decision,
however, was based on the failure of certain statutory
prerequisites (not present here) to the right of a surviving
spouse to make an elective share against the decedent's will.
Similarly, Korie discusses Mann v. Peoples-Liberty Bank
& Trust Co., 256 S.W.2d 489 (Ky. 1953). In Mann, a wealthy
testator had a complicated estate plan, which he failed to
revise after the birth of his youngest child:
"The possible effect of this pretermission on the
powers of the executors and trustees under the will
has resulted in the widow, Frances S. Mann, refusing
to qualify as either co-executor or co-trustee until
it can be determined whether it would be better for
both herself and her children to renounce the will
... and elect to take her dower and distributable
share of her husband's estate. Ordinarily, this
statutory power of renunciation must be exercised
within a year of the probate of the will which
occurred February 5, 1952, but the chancellor
granted her 'to any time within two months after the
determination of her rights in this estate by our
courts by a judgment which shall have become final
by expiration of time for appeal or affirmance on
appeal.' Where an intelligent election is
impossible, as we believe it is in the case at bar,
the chancellor has the power to extend the time for
making an election, if requested to do so within the
one-year period."
39
1120848
256 S.W.2d at 492 (citations omitted; emphasis added).
Mann too is distinguishable. In the present case, the
record does not reflect that it would have been impossible for
Korie to make an intelligent election absent some construction
of the will, nor did she timely request an extension of time
within which to file her elective-share claim so that she
could obtain whatever information she thought she might need.
Korie notes that an accurate inventory and accounting as
to the financial status of the estate would have enabled her
to make an "intelligent choice" as to whether to claim an
elective share. Although that is true, the legislature has
not required that an inventory and accounting be filed as a
precondition to triggering the time periods pertinent to the
elective share. And, as noted above, Korie could have filed
a timely request for an extension of time and concurrently
requested that the court order an accounting so that she could
make an informed decision as to whether to file an elective-
share claim. See § 43-8-73(a) ("The court may extend the time
for election for cause shown by the surviving spouse before
the time for election has expired." (emphasis added)); Ala.
Code 1975, § 43-2-530 (providing that the court may require
40
1120848
the personal representative to file an accounting
"notwithstanding any provision in any will or other instrument
to the contrary"). Korie did not seek financial information
concerning the estate, however, until after her right of
election was time-barred.13
Korie also asserts that she was unaware of her right of
election. But, as the Hartt court discussed, such a claim is
insufficient to entitle the surviving spouse to relief. As
another court has stated:
"In this case the widow pleads that she was
illiterate, and ignorant of the law and of her
rights; that she did not know that, by failing to
renounce her husband's will within a year of its
probate, she was thereby accepting it and electing
to take under it; that the provisions made for her
13
In her argument, Korie references the personal
representative's failure to file an inventory until after he
was ordered to do so by the probate court, and she also takes
issue with the contents of the inventory the personal
representative ultimately filed with the circuit court. As
noted above, however, Woodie's will exempted the personal
representative from the requirement of filing an inventory.
Thus, the personal representative had no legal obligation to
file an inventory until ordered to do so by the court. And no
such order was requested until after the expiration of the
time in which Korie might claim an elective share. Nor is
there any evidence indicating that the personal representative
actively thwarted any effort Korie might have made to obtain
information about the assets and liabilities of the estate so
that she could evaluate whether it might be in her interests
to file a timely claim for an elective share.
41
1120848
and the infant by the will were less than she was
entitled to under the statute; and that the whole of
her husband's estate was less than, under the
statutes, she, as widow, and her three infants,
would have been entitled to have set apart to them
during her life and their minority. The maxim,
'Ignorance of the law excuses no one,' has not been
applied in this state with the rigor that it has
been elsewhere. ... [But] [t]his court has never
held that one's nonaction, through ignorance of the
law, could extend or enlarge his legal rights. Such
a practice would be not alone to put a premium upon
ignorance, but would be an inducement to perjury, as
well as to unsettle and render insecure titles which
the statute had aimed to fix as of a definite
period, and by not uncertain evidence."
Logsdon v. Haney, 25 Ky. L. Rptr. 245, 245, 74 S.W. 1073, 1073
(1903); see also, e.g., Shelton v. Sears, 187 Mass. 455, 460,
73 N.E. 666, 668 (1905)("The only excuse offered for her
inaction is that she was ignorant of the law, but this is not
sufficient in equity, any more than at law, to overcome the
express limitation fixed by statute within which she must act
or be forever barred." (citation omitted)).
Based on the foregoing, we conclude that the circuit
court correctly rejected Korie's untimely petition for an
elective share. The judgment of the circuit court is
affirmed.
42
1120848
AFFIRMED.
Moore, C.J., and Bolin and Main, JJ., concur.
Bryan, J., concurs in the result.
43