Bullen v. Brown

• Decision Date: 29 July 1988
• Citation: 535 So.2d 76
• Parties: Judy BULLEN, executrix of the estate of Lois Brown, deceased, and Eulalia Brown v. Gene BROWN, et al. 87-74.
• Court: Alabama Supreme Court

Page 76

535 So.2d 76

Judy BULLEN, executrix of the estate of Lois Brown, deceased, and Eulalia Brown v. Gene BROWN, et al.

87-74.

Supreme Court of Alabama.

July 29, 1988.

Rehearing Denied Oct. 21, 1988.

Rebecca Lou Green, Red Bay, for appellants.

Lindsey Mussleman Davis of Holt, McKenzie, Holt & Mussleman, Florence, for appellees.

BEATTY, Justice.

Appeal by Judy Bullen, executrix of the estate of Lois Brown, deceased, and by Eulalia Brown, widow of Lois Brown, from a judgment entered upon a jury verdict in favor of the contestants of a document offered as Lois Brown's last will. We reverse and remand.

Brown died on April 16, 1986. On that date Judy Bullen filed in the probate court a petition for probate of the will, and the next day, April 17, 1986, she filed her petition for letters testamentary. Her letters were granted on May 2, 1986, and the will was admitted to probate on that date.

Apparently a hearing was set in the probate court for May 29, 1986, and then postponed until June 23, 1986. On May 30, 1986, notices of the hearing set for June 23, 1986, were sent by certified mail to the heirs of Lois Brown, i.e., Linda Brewer, Gene Brown, and Mary Hall. That hearing, likewise, appears to have been postponed until August 6, 1986. The record does not reflect whether or not any notices of the new hearing date were sent to the above-named heirs. However, it is clear that they did know of that date because, on July 25, 1986, they filed in the probate court a motion for a continuance containing the following grounds:

"1. That said heirs of Lois Brown have employed the services of one Lamar Miller as an expert to analyze the handwriting on the purported Will. That said expert has requested further time in which to examine the documents, more particularly requesting to review and see the original Will. And that said examination cannot be completed by August 6, 1986.

"2. That the crucial issue in this case is the validity of the Will and said heirs are hereby requesting the Court's indulgence in extending the time in which to have the handwriting expert further examine the contested document." (Emphasis added.)

Bullen filed an answer in opposition to that request, asserting that one postponement had already been accorded for the same purpose, and that a further continuance would work a hardship on the widow. The motion for a continuance was denied by the probate court on August 6, 1986. However, in the meantime, the above named heirs of Lois Brown, pursuant to Code of 1975, § 12-11-41, petitioned the probate court, and apparently the circuit court as well, for the removal of the estate on the ground that "the said estate can best be administered in the Circuit Court." See § 12-11-41. The circuit court, on August 5, 1986, ordered the removal, and on August 12, 1986, the probate court entered an order removing the estate to circuit court.

Then on December 15, 1986, Bullen, the executrix, moved the circuit court to set a hearing, citing as grounds the prior postponements and the resulting hardships sustained by the widow. Thereupon the circuit court set a scheduling conference for January 21, 1987. The ensuing order from that conference required that motions be filed on or before May 1, 1987, and set the trial date as May 11, 1987.

On April 22, 1987, the heirs of Lois Brown filed an amendment to their petition for removal by adding the following:

"Said Petitioners further allege that they are contesting the probate of the purported will of Lois Brown and allege that at the time of the execution of said will that Lois Brown was unsound of mind and incapable of duly executing said will and any execution thereof was the result of undue influence and that said signature is not that of Lois Brown.

"WHEREFORE, said Petitioners pray that this Honorable Court deny the admission to probate the will of Lois Brown and for such other different and further relief to which they in these premises have shown themselves to be entitled."

A later amendment to the "complaint" added this paragraph: "That the source of the undue influence on said Lois Brown was his wife, Eulalia Brown who overpowered the true wishes and desires of said Lois Brown."

Following the filing of that amendment, Bullen, the executrix, filed her motion to dismiss. Because the contents of that motion postulate the position of the proponents-appellants on this appeal, the pertinent parts of that motion are quoted below:

"This action was filed in the Probate Court of Franklin County, Alabama on August 6, 1986. A copy of Letters Testamentary is attached hereto as Exhibit 'A' and incorporated by reference.

"....

"No Complaint was filed in this cause.

"....

"On August 4, 1986, Gene Brown, Linda Brewer and Mary Hall, children and heirs at law of Lois Brown, deceased, by and through their attorney of record filed a petition to remove this action to the Circuit Court of Franklin County, Alabama. A copy of said petition is attached hereto as Exhibit 'B' and incorporated by reference.

"....

"On April 21 [sic], 1987, Linda Brewer, Gene Brown and Mary Hall filed an Amendment to Petition for removal to Circuit Court in an attempt to state a cause of action in said Petition.

"....

"More than six (6) months had elapsed following the Petition for Letters Testamentary without the filing of a Complaint in this action.

"....

"Under Section 43-8-199, Code of Alabama, a Complaint must be filed within six (6) months after the admission of such will to probate. Ex Parte Pearson, [241 Ala. 467, 3 So.2d 5 (1941) ]. As of this date, no Complaint has been filed.

"WHEREFORE, premises considered, Judy Bullen, Executrix of the Estate of Lois Brown, Deceased, moves the Court to dismiss this action."

That motion was overruled, and the case proceeded to trial to a jury. A first trial resulted in a mistrial. A second trial resulted in a jury verdict finding against the will. Judgment was entered accordingly. No post-judgment motions were filed.

The controlling issue presented to us is whether or not the circuit court erred in overruling the proponents' motion to dismiss. We find that it did err.

The contestants-appellees contend that when they filed their motion for a continuance, quoted above, they "initially pled" in the probate court in accord with the Rules of Civil Procedure, and thus that the proponents were aware that a challenge of the will had been made.

Jurisdiction to entertain a will contest is conferred upon both the probate courts and the circuit courts by statute. Forrester v. Putman, 409 So.2d 773 (Ala.1981).

If a will has been probated, one who has not therefore contested it may do so within six months after it has been probated by filing a complaint in circuit court under § 43-8-199:

"Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated."

It is clear that will contest jurisdiction, being statutorily conferred, must comply with the statutory language strictly in order to quicken jurisdiction of the appropriate court. Kaller v. Rigdon, 480 So.2d 536 (Ala.1985); Ex Parte Stephens, 259 Ala. 361, 66 So.2d 901 (1953).

How is a will contested under § 43-8-199? Construing a substantially similar predecessor to this statute, this Court stated in Barksdale v. Davis, 114 Ala. 623, 22 So. 17 (1897) (overruled on other grounds, Alexander v. Gibson, 176 Ala. 258, 57 So. 760 (1912)):

"It is manifest that these provisions [present § 43-8-190 and present § 43-8-199] were introduced to change the policy of the law obtaining prior to their adoption, by requiring the contestant, by written procedure, to set forth the grounds upon which he expects to contest the validity of the proposed will, and to confine the trial, after proof of the due execution of the will, to the issues which his allegations tender. The purpose of the change was that which underlies the law of pleading generally,--that the parties may be certainly advised of the issues to be tried, and the court enabled to proceed intelligently in adjudicating their rights....

"Upon a contest of a will, when fraud or undue influence is relied upon, the burden is upon the contestant to prove it. The opposite party is only required to prove the due execution of the will according to the statute. It is as essential, therefore, that such party be informed, by distinct averments, of the facts constituting the fraud or undue influence, so as to be prepared to meet them, as that such information be so given to any party in any judicial proceeding; hence there can be no well-founded reason for holding that the legislature intended, when it required that the contest be in writing, and set forth the grounds relied on, that only a general statement of such grounds, conveying to the opposite party practically no information of value to him in the preparation of his cause, should be sufficient."

(Emphasis added.) 114 Ala. at 629-30, 22 So. at 19. In Kaller, 480 So.2d at 538-39, this Court discussed the requirements under § 43-8-198 for a "demand" for a transfer at the time the contestant files his initial "pleading." That discussion is pertinent here:

"Rule 7(a), ARCP, explains the nature of the term 'pleading': 'There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed.' A motion, defined in Rule 7(b), ARCP, as 'an application to the court for an order,' is not a pleading. Therefore, although he filed motions and papers with regard to the...