Ex parte Barrows
Decision Date | 07 May 2004 |
Citation | 892 So.2d 914 |
Parties | Ex parte Jamie Kay Shields BARROWS. (In re James Shields, Jr. v. Estate of James Edward Shields, deceased). |
Court | Alabama Supreme Court |
William J. Trussell of Trussell & Funderburg, P.C., Pell City, for petitioner.
Edwin M. Van Dall, Jr., Pell City, for respondent. STUART, Justice.
Jamie Kay Shields Barrows petitions this Court to issue a writ of mandamus directing Judge William E. Hereford of the St. Clair Circuit Court to vacate and set aside his order denying her motion to dismiss the will contest filed by James Shields, Jr. ("Shields Jr."), on the basis that the circuit court never acquired jurisdiction over the will contest. We deny the petition.
Facts
On January 21, 2003, Barrows, as executrix of the will of James Edward Shields, petitioned the St. Clair Probate Court to probate James Edward Shields's will. On February 10, 2003, the probate court admitted the will to probate and issued letters testamentary to Barrows.
On July 30, 2003, Shields Jr. filed a complaint in the probate court, contesting the will. On July 31, 2003, the probate court, ex mero motu, transferred the will contest to the circuit court. On July 31, 2003, pursuant to the probate court's order, the chief clerk of the probate court filed the will-contest complaint and a copy of the probate court's transfer order with the circuit court clerk. On August 4, 2003, counsel for Shields Jr. filed in the circuit court a copy of the will-contest complaint that had been filed in the probate court. The word "probate" was marked out and the word "circuit" was inserted in its place in the style. Counsel also submitted with the complaint a circuit court cover sheet. The circuit court docket fee for the filing of the complaint was not submitted until August 11, 2003.
Standard of Review
Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000).
Legal Analysis
Barrows contends that the circuit court exceeded the scope of its authority by refusing to dismiss the will contest for lack of subject-matter jurisdiction.
Section 43-8-190, Ala.Code 1975, provides that "[a] will before the probate thereof, may be contested by any person interested therein, ... by filing in the court where it is offered for probate allegations in writing. ...." (Emphasis added.) The probate court admitted the will for probate and issued letters testamentary on February 10, 2003. Shields Jr. did not file his will contest in the probate court until July 30, 2003. Clearly, Shields Jr.'s will contest filed in the probate court did not comply within the terms of § 43-8-190. Consequently, the probate court did not have jurisdiction over the will contest, and its order purporting to transfer the will contest to the circuit court was a nullity, see Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941). Therefore, the filing by the chief clerk of the probate court with the circuit court clerk of the complaint originally filed in the probate court did not invoke the jurisdiction of the circuit court. Steele v. Sullivan, 484 So.2d 422 (Ala.1986); Ex parte Pearson, supra. Cf. Kelley v. English, 439 So.2d 26, 28 (Ala.1983).
Section 43-8-199, Ala.Code 1975, provides:
"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."
(Emphasis added.)
Shields Jr. contends that his counsel's filing in the circuit court a copy of the will-contest complaint filed in the probate court with the word "probate" marked out and the word "circuit" inserted in its place in the style and a circuit court cover sheet constituted an independent filing in the circuit court of the documents originally filed in and transferred from the probate court. Therefore, he says, he properly invoked the limited jurisdiction of the circuit court to entertain the will contest. We agree.
In Dunning v. New England Life Insurance Co., 890 So.2d 92 (Ala.2003), this Court addressed whether "a timely filed copy of a notice of appeal is acceptable under the Alabama Rules of Appellate Procedure if that copy was produced by a facsimile transmission." 890 So.2d at 96. This Court stated:
To continue reading
Request your trial-
Dockery v. City of Jasper
...and the payment of the proper filing fee for such action, in the absence of a showing of substantial hardship. See Ex parte Barrows, 892 So. 2d 914, 918 (Ala. 2004) ; see also Ala. Code 1975, § 12-19-70(a) (requiring the payment of the filing fee for an action "at the time a complaint is fi......
-
Daniel v. Moye, 1140819 1140820.
...was sufficient to invoke the circuit court's subject-matter jurisdiction over the administration of Claude's estate.In Ex parte Barrows, 892 So.2d 914 (Ala. 2004), the personal representative of a decedent's will petitioned the probate court to probate the will and to issue letters testamen......
- Smith v. AmSouth Bank, Inc.
-
Estate of Wilson v. Jones (Ex parte Floyd)
...of the same by filing a complaint in the circuit court in the county in which such will was probated.” Wakefield cites Ex parte Barrows, 892 So.2d 914, 918 (Ala.2004), for the proposition that her letters addressed to the Hale County judges and her letter to Judge Avery constituted adequate......