Allen v. the EState C. Juddine

• Decision Date: 30 September 2010
• Docket Number: 1090854.
• Parties: Yolanda ALLENv.The ESTATE OF Willie C. JUDDINE, Sr., deceased.
• Court: Alabama Supreme Court

60 So.3d 852

Yolanda ALLEN
v.
The ESTATE OF Willie C. JUDDINE, Sr., deceased.

1090854.

Supreme Court of Alabama.

Sept. 30, 2010.

[60 So.3d 853]

Stewart E. Burns of Burns, Burns & Garner, Gadsden, for appellant.Submitted on appellant's brief only.LYONS, Justice.

Yolanda Allen appeals from an order of the Etowah Circuit Court requiring her to petition the Etowah Probate Court to probate a lost will with respect to an estate, the administration of which had been removed to the circuit court under § 12–11–41, Ala.Code 1975. We reverse and remand.

Factual Background and Procedural History

Willie C. Juddine, Sr. (“Willie Sr.”), died on October 24, 2009. He had three children, Willie C. Juddine, Jr. (Willie Jr.), Amber Juddine, and Hacienda Juddine; only Hacienda was still a minor at the time of Willie Sr.'s death. On December 7, 2009, Willie Jr. filed a petition with the Etowah Probate Court (“the probate court”) alleging that Willie Sr. had died intestate, leaving no will. Willie Jr. requested that the probate court name him administrator of Willie Sr.'s estate (“the estate”) and grant him letters of administration. On the same day, the probate court entered an order granting letters of administration to Willie Jr. On December 21, 2009, the probate court entered an order expressly granting Willie Jr. authority to enter Willie Sr.'s home and take possession of its contents as administrator of Willie Sr.'s estate.

On December 28, 2009, Yolanda Allen filed a petition with the Etowah Circuit Court (“the circuit court”) requesting that administration of Willie Sr.'s estate be removed to the circuit court under § 12–11–41, Ala.Code 1975. Allen alleged that she had been Willie Sr.'s common-law wife and that Willie Sr. had executed a will in August 2009 naming her as a beneficiary. Allen alleged that Willie Sr. had executed the will in her presence and in the presence of Amber while he was in the hospital. Allen contended that the will was in Amber's possession but that Amber had refused to probate it. Based on those assertions and based on Willie Jr.'s assertion that no will existed, Allen stated her opinion that the estate would be better administered in the circuit court.

Allen attached to her petition for removal an unsigned copy of the will she alleged Willie Sr. had executed in August 2009. That will does not list Willie Jr. as one of Willie Sr.'s children. It names Amber as executor and Allen as alternate executor of the estate. It gives Allen a life estate in Willie Sr.'s residence and, aside from specific bequests of personal property, provides that the remainder of the estate is to be divided evenly between Amber and Hacienda.

On December 28, 2009, the circuit court entered an order granting Allen's petition and removing the estate from the probate court pursuant to § 12–11–41. The circuit court also ordered Amber to appear at a hearing and to produce the will. Willie Jr. answered Allen's petition, denying most of the material allegations in the petition. On the day the circuit court held a hearing regarding the existence of the will, Allen filed a petition requesting the court to probate the will. Willie Jr. moved to dismiss Allen's petition to probate the will, arguing that the circuit court lacked jurisdiction to probate the will. The circuit court ordered briefs on the question of jurisdiction and, on March 11, 2010, entered an order finding that a lost will existed but that it did not have jurisdiction

[60 So.3d 854]

to probate the will. The circuit court ordered Allen to file a petition to probate the will with the probate court. The circuit court then stayed further proceedings before it regarding the administration of the estate and ordered Willie Jr. and all other potential heirs to maintain the property of the estate pending further order of the circuit court.

On March 19, 2010, Allen petitioned this Court for a writ of mandamus directing the circuit court to retain jurisdiction of the estate and to probate the will. On May 18, 2010, this Court ordered that the mandamus petition be treated as a timely notice of appeal. See, e.g., Ex parte Kelly, 243 Ala. 184, 187, 8 So.2d 855, 857 (1942) (“The effect of the decree appealed from—remanding the administration of the estate to the probate court—was to put this branch of the case out of the circuit court, and was such final decree as will support the appeal.”).

Analysis

Allen argues on appeal that the circuit court had exclusive jurisdiction of the administration of the estate. As a result, Allen argues, the circuit court erred in declining to probate the will and in ordering her to submit the will to the probate court. Willie Jr. has not filed a brief in this Court.

Probate courts have original and general jurisdiction over the probate of wills and over the “[t]he granting of letters testamentary and of administration.” See § 12–13–1, Ala.Code 1975. However, the administration of an estate may be removed from a probate court to a circuit court under the procedures stated in § 12–11–41, Ala.Code 1975. That section provides:

“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and...