Christian v. Murray, 1031381.

• Decision Date: 10 June 2005
• Docket Number: 1031381.,1031398.,1031397.
• Citation: 915 So.2d 23
• Parties: Thomas Richard CHRISTIAN et al. v. Mallory H. MURRAY et al.
• Court: Alabama Supreme Court

Page 23

915 So.2d 23

Thomas Richard CHRISTIAN et al. v. Mallory H. MURRAY et al.

1031381.

1031397.

1031398.

Supreme Court of Alabama.

March 18, 2005.

As Modified on Denial of Rehearing June 10, 2005.

William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellants.

Jay F. Guin and Justin G. Williams of Tanner & Guin, LLC, Tuscaloosa, for appellees.

SEE, Justice.

Thomas Richard Christian and other proponents of Marie Roberts Christian's May 24, 1988, will appeal from a judgment entered by the Tuscaloosa Circuit Court setting aside the Tuscaloosa Probate Court's admission of the May 24, 1988, will to probate and holding that an August 5, 1988, will, and the codicil to that will, constitute the true will of Ms. Christian. We reverse.

Marie Roberts Christian died on December 24, 2001. On January 28, 2002, AmSouth Bank petitioned the Tuscaloosa Probate Court to probate what it believed to be Ms. Christian's last will; that will was dated May 24, 1988 ("the May will").¹ On March 11, 2002, the May will was admitted to probate and letters testamentary were issued appointing AmSouth Bank the executor of Ms. Christian's estate. After the expiration of the statutory six-month nonclaims period, Ala.Code 1975, § 43-2-350, AmSouth distributed Ms. Christian's personal effects in accordance with the terms of the May will. A storage trunk was distributed to a beneficiary named in the May will. The parties have stipulated to the following facts, which the trial court incorporated into the order from which the proponents of the May will appeal:

"Except to the extent the law may impute possession to an executor prior to its appointment as such, the executor [AmSouth] did not have custody or possession of the [t]runk prior to the filing of the petition to probate the Former Will or the granting of letters testamentary under the [May 1988] Will. After letters testamentary were granted and prior to distribution of the personal effects, the executor had custody or possession of Ms. Christian's personal effects, including the [t]runk."

On November 4, 2002, the beneficiary to whom the trunk was distributed found inside the trunk another will of Marie Roberts Christian dated August 5, 1988 ("the August will"), and a codicil to that will dated June 20, 1996.² The distributions under the August will and 1996 codicil differ from the distributions under the May will. The parties have stipulated that "[t]here is presently no evidence existing indicating that the executor [AmSouth] had actual knowledge of the existence of the [August will and 1996 codicil] prior to approximately November 4, 2002." AmSouth Bank was informed of the discovery of the August will and the codicil.

AmSouth Bank filed a complaint in the Tuscaloosa Circuit Court for a judgment declaring which will should control the distribution of Ms. Christian's estate (case no. CV-03-62). AmSouth also petitioned the probate court to transfer the proceedings relating to the estate to the Tuscaloosa Circuit Court (case no. CV-03-343). Mallory H. Murray and John R. Humphrey then sued AmSouth Bank and potential beneficiaries of Ms. Christian's estate, including Thomas Richard Christian, a beneficiary under the May will, seeking an order setting aside the order of the probate court admitting the May will to probate (case no. CV-03-296). The probate proceedings were transferred to the Tuscaloosa Circuit Court, which consolidated the three cases, allowed AmSouth to opt out of the proceedings,³ and invited the parties to realign themselves according to which will they favored. Mallory H. Murray and other proponents of the August will and 1996 codicil aligned as plaintiffs ("the Murray plaintiffs"). Thomas Richard Christian and other proponents of the May will aligned as defendants ("the Christian defendants").

The Murray plaintiffs moved for a summary judgment on all claims. The Christian defendants also moved for a summary judgment, arguing that all claims asserted by the Murray plaintiffs were, in legal effect, will contests and that they were, therefore, barred by the statutory six-month period within which to file a will contest. See Ala.Code 1975, § 43-8-199. The trial court entered a partial summary judgment for the Murray plaintiffs setting aside the probate court's order admitting the May will to probate. The trial court concluded that the time for filing a will contest had been tolled because of the "innocent fraud" of AmSouth, the executor of the May will, and, thus, that the Murray plaintiffs' will contest was not untimely by virtue of § 43-8-199. The trial court further found that the May will was not the last will of Ms. Christian and it therefore vacated the probate court's order admitting the May will to probate. The trial court certified its order as final under Rule 54(b), Ala. R. Civ. P.⁴ The Christian defendants appeal.

The Christian defendants argue that the trial court erred in entering a partial summary judgment in favor of the Murray plaintiffs because, they argue, the Murray plaintiffs were not entitled to a judgment as a matter of law. Specifically, the Christian defendants argue that the Murray plaintiffs' action challenging the admission of the May will to probate is barred by the time limitations of Ala.Code 1975, § 43-8-199, and that the tolling provisions of the Alabama Code do not apply. In addition, the Christian defendants argue that the Murray plaintiffs' claims cannot be characterized as anything other than claims contesting a will so as to circumvent the time bar applicable to will contests.

Where the facts are not in dispute and we are presented with a pure question of law, as here, this Court's review is de novo. See State v. American Tobacco Co., 772 So.2d 417, 419 (Ala.2000); Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997); Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994).

The Murray plaintiffs argued that their action was not only a will contest but that they were also seeking relief under Rule 60(b), Ala. R. Civ. P., and the Rule 60(b) action was not subject to the six-month bar for filing a will contest. Because the trial court determined that the Murray plaintiffs' will-contest claims were not time-barred, it declined to determine whether the Murray plaintiffs were entitled to relief on their action filed pursuant to Rule 60(b), Ala. R. Civ. P. We agree with the Christian defendants that, despite the various names assigned to the many claims asserted by the Murray plaintiffs, all of those claims, in legal effect, contested the May will. "The attempt to set aside a probated will ... by proving a later one ... is a contest of the validity of the former will." Watson v. Turner, 89 Ala. 220, 226, 8 So. 20, 21 (1890). Jurisdiction for a will contest is statutorily conferred; thus, a will contest must strictly comply with the statute, including any time limitations. Evans v. Waddell, 689 So.2d 23 (Ala.1997). The Murray plaintiffs could not circumvent the time requirements of the will-contest statute by alleging that they sought relief under Rule 60(b), Ala. R. Civ. P., when their claims were, in substance, contests to the May will.

The Christian defendants argue that the Murray plaintiffs' will contest was time-barred. Ala.Code 1975, § 43-8-199, reads as follows:

"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."

The statute allows a will contest to be brought in the circuit court after a will has been admitted to probate. This statutory right has existed in this State since 1806, "having undergone a change in phraseology, but not in meaning, in passing through our various Codes enacted since that time."⁵ Watson, 89 Ala. at 224-25, 8 So. at 20. Prior to the enactment of the statute, the probate courts had inherent jurisdiction "to set aside the probate of a will at any time upon the discovery of a posterior will of the testator, and upon proper proof of its execution by the testator." Watson, 89 Ala. at 225, 8 So. at 20.

This Court stated in Hardy v. Hardy's Heirs, 26 Ala. 524 (1855), that the will-contest statute (1) conferred upon courts of equity the exclusive jurisdiction to entertain will contests; (2) stripped the probate court of its ancient jurisdiction to set aside the probate of a former will and to permit the probate of a later one; and (3) barred any will contest in either forum after five years (now six months). Because a circuit court's jurisdiction over a will contest is statutorily conferred and limited, a proceeding initiated under Ala.Code 1975, § 43-8-199, must comply exactly with the requirements of that statute. Evans v. Waddell, 689 So.2d 23, (Ala.1997); Boshell v. Lay, 596 So.2d 581 (Ala.1992); Marshall v. Vreeland, 571 So.2d 1037 (Ala.1990); Simpson v. Jones, 460 So.2d 1282 (Ala.1984); Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941).

The May will was admitted to probate on March 11, 2002. Thus, when the August will and 1996 codicil were discovered in November 2002, the six-month period for contesting the May will provided for by § 43-8-199 had passed. Thus, the Murray plaintiffs' actions were filed after the statutory period for contesting a will had expired.

The Murray plaintiffs argued to the trial court, and the trial court agreed, that the time to file the will contest was tolled by the application of the fraud provision found in Ala.Code 1975, § 43-8-5. Section 43-8-5 provides, in part, as follows:

"Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter [the Probate Code] or if fraud is used to avoid or circumvent the provisions of purposes of this chapter [the Probate Code], any person injured thereby may obtain appropriate relief against...