Burns v. Ashley

Decision Date28 September 2018
Docket Number1170565
Citation274 So.3d 970
Parties Beverly BURNS, Michael Ashley, and Debbie Elrod v. Joe Keith ASHLEY and James Wayne Ashley
CourtAlabama Supreme Court

274 So.3d 970

Beverly BURNS, Michael Ashley, and Debbie Elrod
v.
Joe Keith ASHLEY and James Wayne Ashley

1170565

Supreme Court of Alabama.

September 28, 2018


Rodney L. Ward, Gadsden, for appellants.

Luther D. Abel, Gadsden, for appellee.

BRYAN, Justice.

Beverly Burns, Michael Ashley, and Debbie Elrod (hereinafter collectively referred to as "the appellants") appeal from a judgment of the Etowah Circuit Court ("the circuit court") denying the appellants' will contest, admitting to probate the will of Rheba Sue Ashley ("Rheba"), and

274 So.3d 972

issuing letters testamentary to James Wayne Ashley ("James"). For the reasons set forth herein, the circuit court's judgment is void for lack of jurisdiction, and the appeal must therefore be dismissed.

Facts and Procedural History

On February 15, 2015, Rheba died testate, survived by her five children: the appellants, James, and Joe Keith Ashley. On April 22, 2015, James petitioned the Etowah Probate Court ("the probate court") for probate of a will executed by Rheba in 2014, which provides that the appellants are each to receive $10 from Rheba's estate and that James is to receive the remainder of Rheba's estate, and for letters of administration with the will annexed.1 The probate court did not admit the will to probate or appoint a personal representative of Rheba's estate.2

On June 10, 2015, the appellants filed in the probate court a "Complaint Contesting Will" in which they alleged that Rheba had executed a prior will before she executed the 2014 will; that they were beneficiaries under the prior will; and that James used undue influence to procure Rheba's execution of the 2014 will. Simultaneously, the appellants filed in the probate court a petition to transfer the will contest to the circuit court pursuant to § 43-8-198, Ala. Code 1975. However, the probate court did not enter an order transferring the will contest to the circuit court.

On July 15, 2015, the parties filed in the probate court a joint motion seeking the appointment of Jonathan Welch as special administrator ad colligendum until the probate court appointed a personal representative of Rheba's estate. See § 43-2-47, Ala. Code 1975. That same day, the probate court granted the parties' motion and issued Welch letters of administration ad colligendum, which authorized Welch to collect and to preserve the assets of Rheba's estate until the probate court appointed a personal representative of the estate, at which time Welch's authority as special administrator ad colligendum would terminate. See § 43-2-47(d).

On August 18, 2015, the appellants filed in the circuit court a petition for the removal of the administration of Rheba's estate from the probate court, see § 12-11-41, Ala. Code 1975, and, on November 5, 2015, the circuit court entered an order to that effect. The circuit court subsequently held an evidentiary hearing and, on February 13, 2018, entered a judgment denying the will contest, admitting Rheba's 2014 will to probate, and issuing letters testamentary to James. The appellants filed a motion to alter, amend, or vacate the February 13, 2018, judgment, and the circuit court subsequently modified its judgment with respect to one evidentiary finding. However, the circuit court's modified evidentiary finding did not alter its original rulings denying the will contest, admitting Rheba's 2014 will to probate, and issuing letters testamentary to James.3 The appellants timely appealed.

274 So.3d 973

Discussion

"Although neither party raises a question before this Court regarding the circuit court's subject-matter jurisdiction to consider the appellants' will contest, the absence of subject-matter jurisdiction cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction ex mero motu. See MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393 (Ala. 2011). If the circuit court's jurisdiction to consider the will contest was never properly invoked, then the judgment entered on [February 13, 2018], is void and [will] not support an appeal. MPQ, 78 So.3d at 394 (‘ "A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment." ’ (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) ) )."

McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017).

" ‘In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Ala. Code 1975, before probate, the contest may be instituted in the probate court or (2) under § 43-8-199, Ala. Code 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.’

" Stevens v. Gary, 565 So.2d 73, 74 (Ala. 1990)."

Bond v. Pylant, 3 So.3d 852, 854 (Ala. 2008).

In this case, the probate court never admitted Rheba's will to probate. Thus, pursuant to § 43-8-190, Ala. Code 1975, the appellants properly filed their will contest in the probate court. Bond, supra. As noted, the appellants, simultaneously with the filing of their will contest, sought to transfer the will contest to the circuit court. The transfer to circuit court of a will contest pending in probate court is governed by § 43-8-198, which provides, in pertinent part:

"Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court ...."

(Emphasis added.)

"The jurisdiction conferred on the circuit court by this section of the Code is a statutory and limited jurisdiction. Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941). Because will contest jurisdiction is
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8 cases
  • Jones v. Brewster, 1170450
    • United States
    • Alabama Supreme Court
    • 15 Marzo 2019
    ...will was probated."" ‘ Stevens v. Gary, 565 So.2d 73, 74 (Ala. 1990).’" Bond v. Pylant, 3 So.3d 852, 854 (Ala. 2008)." Burns v. Ashley, 274 So.3d 970, 973 (Ala. 2018).Under Alabama law, a circuit court, under specified conditions delineated in the pertinent statute, can obtain subject-matte......
  • R.J. v. J.N.M.W.
    • United States
    • Alabama Court of Civil Appeals
    • 21 Mayo 2021
    ...cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction. See Burns v. Ashley, 274 So. 3d 970, 972 (Ala. 2018). If the circuit court lacked subject-matter jurisdiction to consider the great-grandparents’ complaint, then the judgment ent......
  • R.J. v. J.N.M.W.
    • United States
    • Alabama Court of Civil Appeals
    • 21 Mayo 2021
    ...cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction. See Burns v. Ashley, 274 So. 3d 970, 972 (Ala. 2018). If the circuit court lacked subject-matter jurisdiction to consider the great-grandparents' complaint, then the judgment ent......
  • Bargsley v. Authority (In re Birmingham Airport Auth.)
    • United States
    • Alabama Supreme Court
    • 28 Septiembre 2018
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