Council v. Estate of Skelton (Ex Parte Skelton)

• Decision Date: 26 October 2018
• Docket Number: 1160641
• Citation: 275 So.3d 144
• Parties: EX PARTE Evangela SKELTON, as the personal representative of the Estate of Brian Lee Skelton, Sr., deceased (In re: Joshua M. Council, as beneficiary under the Frederick Tildon Skelton, Jr., Family Trust v. The Estate of Brian Lee Skelton, Sr., et al.)
• Court: Alabama Supreme Court

275 So.3d 144

EX PARTE Evangela SKELTON, as the personal representative of the Estate of Brian Lee Skelton, Sr., deceased(In re: Joshua M. Council, as beneficiary under the Frederick Tildon Skelton, Jr., Family Trust

v.The Estate of Brian Lee Skelton, Sr., et al.)

1160641

Supreme Court of Alabama.

October 26, 2018

Thomas A. Woodall and Barry A. Ragsdale of Sirote & Permutt, P.C., Birmingham, for petitioner.

Andrew P. Campbell, Todd Campbell, and Yawanna N. McDonald of Campbell Guin, LLC, Birmingham; and Matthew C. McDonald of Jones Walker LLP, Mobile, for respondent Joshua M. Council.

G. Dennis Nabors, William G. Somerville, and Andrew P. Walsh of Baker Donnelson Bearman Caldwell & Berkowitz, P.C., Birmingham; and Matthew C. McDonald of Jones Walker LLP, Mobile, for respondent Loree J. Skelton.

MENDHEIM, Justice.

Evangela Skelton ("Angel"), as personal representative of the estate of Brian Lee Skelton, Sr., deceased ("the estate"), requests that this Court issue a writ of mandamus directing the Jefferson Circuit Court (1) to vacate its order denying her motion to dismiss an action filed in the circuit court by Joshua M. Council ("Joshua") and (2) to enter an order dismissing Joshua's action on the ground of abatement.

We grant the petition and issue the writ.

The materials submitted by the parties show the following. Frederick Tildon Skelton, Jr. ("Frederick Jr."), died on June 7, 1979. Frederick Jr. was survived by his wife, Rheta S. Skelton ("Rheta"), and four children: Brian Lee Skelton, Sr. ("Brian Lee"), Frederick Tildon Skelton III ("Frederick III"), Loretta Joyce Skelton ("Loree"), and Cindy Marie Skelton ("Cindy"). Frederick Jr.'s will was admitted to probate in the Birmingham Division of the Jefferson Probate Court on October 7, 1979.

Frederick Jr.'s will included provisions for a testamentary trust known as the Frederick Tildon Skelton, Jr., Family Trust ("the trust"). The trust apparently was funded during the administration of Frederick Jr.'s estate, which was closed by final consent settlement on or about April 7, 2000. The original trustee of the trust was Rheta. The trust named Frederick III as successor trustee to Rheta and Brian Lee as successor trustee to Frederick III. The trust named no successor trustee to Brian Lee.

Under the terms of the trust, Rheta was to receive the net income of the trust during her life. The trust further provided:

"2. The family trust shall terminate upon the death of my said wife and the then principal of the trust, together with any undistributed income thereof (all of which is hereinafter called ‘such property’), shall be held or disposed of as follows:

"A. If issue of mine is living at the termination of the family trust, the trustee shall divide such property into a sufficient number of equal shares so that there shall be set aside one equal share for each child of mine living at the termination of the trust, and one equal share for the issue collectively living at the termination of the trust of each child of mine who has died prior to the termination of the trust leaving issue living at the termination of the trust.

"With respect to each child of mine living at the termination of the trust, the trustee shall transfer, convey and pay over, free of trust, the share so set aside for such child to him or her if he or she has attained the age of thirty (30) years at the termination of the trust, otherwise the trustee shall continue to hold such share in trust, nevertheless, as a separate trust for such child's primary benefit in accordance with the provisions set out in Item Eight hereof.

"With respect to each child of mine who has died prior to the termination of the trust leaving issue living at the termination of the trust, the trustee shall further divide the shares set aside for the living issue collectively of such deceased child among such living issue, in equal shares per stirpes and with respect to each living issue entitled to a portion shall transfer, convey and pay over, free of trust, the portion to which he or she is so entitled to him or her, if he or she has attained the age of twenty-one (21) years, otherwise, the trustee shall continue to hold the portion to which he or she is so entitled, in trust, nevertheless, as a separate trust for his or her primary benefit in accordance with the provisions set out in Item Nine hereof."

Rheta died on December 13, 2015. Rheta was predeceased by Frederick III, who died on January 1, 2014. Thus, Brian Lee became the successor trustee of the trust following Rheta's death. However, Brian Lee died on July 2, 2016, before dividing the trust property into shares and distributing those shares pursuant to the terms of the trust and before making a final settlement of the trust. See Ala. Code 1975, § 19-3B-205(a) (court proceeding for final settlement); see also Ala. Code 1975, § 19-3B-111(d)(7) (authorizing final settlement by consent under certain circumstances). Brian Lee was survived by his wife, Angel, by two adult children, Brian Lee Skelton, Jr. ("Brian Jr."), and Taylor Skelton Madsen ("Taylor"), and by a minor child, Olivia Jade Skelton ("Olivia").

On July 26, 2016, Angel, Brian Jr., and Taylor filed a "Petition for Approval of Appointment of Successor Trustee for Testamentary Trust" ("the petition for appointment") in the Bessemer Division of the Jefferson Probate Court ("the probate court").¹ The petition for appointment included allegations that Angel, Brian Jr., and Taylor were "the adult heirs-at-law and next-of-kin of Brian Lee" and that they were "devisees and/or beneficiaries of Brian's" will. The petition for appointment also alleged that Rheta was domiciled within the boundaries of the Bessemer Division of Jefferson County when she died, that the trust had been administered within those boundaries, and that,

"after the death of [Rheta] in December, 2015, the Trust was not terminated and divided ... because a final income tax return for the Trust had not yet been filed and outstanding expenses of the Trust are yet to be paid, and thus, it continues to exist as one aggregate Trust. On information and belief, the Trust owns a small investment account and valuable stock in The SOUTH HAVEN CORPORATION (‘South Haven’)."

The petition for appointment further alleged:

"8. ... [Frederick Jr.'s] Will did not name any successor to Brian [Lee] as Trustee of the Trust, and thus there is no party presently having appropriate authority to serve as Trustee of the Trust, including without limitation, to vote or take other action with respect to any of the Trust's stock in South Haven and/or to proceed with a termination of the Trust.

"9. Brian [Lee] was over 30 years old at his death. The beneficial interest of Brian [Lee] in and to the Trust had vested absolutely in him on the Termination date, i.e., December 13, 2015. Thus, the beneficial interest of Brian [Lee] in and to the Trust is an asset of his probate estate, and is due to be distributed, outright and free of trust, to an appropriate fiduciary acting on behalf of Brian [Lee's] Estate.

"10. Petitioners have standing to request the relief sought in this Petition as the heirs-at-law and next-of-kin of Brian [Lee] and/or as the named devisees/beneficiaries of Brian [Lee's] Will. Brian [Lee's] Will appoints Angel as the Personal Representative of Brian [Lee's] Estate ..., and Petitioners anticipate the issuance of Letters Testamentary to Angel for Brian [Lee's] Estate following the Court's hearing in Brian [Lee's] Estate, with the result that Angel, in her fiduciary capacity as the Personal Representative of the Estate of Brian [Lee] may be substituted for or added to Petitioners as a moving party with standing to seek the relief sought herein."

The petition for appointment alleged that Frederick III and Cindy were deceased and that the following other persons had an interest in the trust and were to be made parties to the proceedings:

1. Frederick T. Skelton IV ("Frederick IV") and Brian Rutledge Skelton ("Brian Rutledge"), who were the children of Frederick III and who were both over the age of 21 on December 13, 2015;

2. Loree, who was over the age of 30 on December 13, 2015; and

3. Joshua, who was over the age of 21 on December 13, 2015, and who was the only child of Cindy, who died on July 30, 2012.

The petition for appointment requested that the probate court appoint a successor trustee and that the court direct that trustee to proceed with dividing the trust property into appropriate shares, to distribute the trust property as required by the terms of the trust, and "to take all other such action as may be appropriate to administer the Trust pursuant to [its] terms ... and prudent fiduciary practice, including, without limitation, exercising control over the ... stock or other ownership interest in South Haven."

On August 18, 2016, Joshua, as a beneficiary of the trust, filed a "Petition for Termination" ("the petition for termination") in the circuit court. The petition for termination named as respondents Brian Lee's estate; the trust; Loree; Frederick IV; and Brian Rutledge. The petition for termination alleged that the trust should have terminated on Rheta's death and requested the following relief:

"A. That this Court find, order, and decree that the Trust be terminated;

"B. That this Court find, order, and decree that the assets of the Trust be distributed to the Beneficiaries pursuant to the terms of the Trust; and

"C. Petitioner further requests any other appropriate legal or equitable remedy to which he may be entitled."

On August 23, 2016, Angel filed a "Petition for Letters Testamentary Without Bond" ("the petition for letters testamentary") in the probate court as to Brian Lee's estate. The petition for letters testamentary alleged that Brian Lee's will "ha[d] been ... duly probated and admitted to record" in the probate court and that Angel was nominated as personal representative in that will. The petition for letters testamentary requested that the probate court...