Ex parte Clayton

• Decision Date: 25 September 1987
• Citation: 514 So.2d 1013
• Parties: Ex parte David CLAYTON and Kathy Clayton. (In re: The ESTATE OF Robert J. ECKERT, Jr., deceased). 86-958.
• Court: Alabama Supreme Court

Page 1013

514 So.2d 1013

Ex parte David CLAYTON and Kathy Clayton.

(In re: The ESTATE OF Robert J. ECKERT, Jr., deceased).

86-958.

Supreme Court of Alabama.

Sept. 25, 1987.

M. Wayne Wheeler, Birmingham, for petitioners.

Jesse P. Evans III and Douglas Corretti of Corretti & Newsom, Birmingham, for respondent.

ADAMS, Justice.

Petitioners, David and Kathy Clayton, seek a writ of mandamus directed to the Honorable Marvin Cherner, Circuit Judge, Jefferson County, Alabama, compelling him to vacate his order of March 27, 1987, removing the administration of the estate of Robert J. Eckert, Jr., from the probate court of Jefferson County, Alabama. Because we find no abuse of discretion by Judge Cherner, we deny the writ of mandamus.

This matter began in probate court with the administration of the estate of Robert J. Eckert, Jr. Petitioners filed a claim against the estate for breach of warranty arising from a contract between the decedent and his wife, and the petitioners. The breach of warranty claim was brought in the probate court. Later, the claim was amended to invoke the equity jurisdiction of the Jefferson County Probate Court pursuant to a local act relating to Jefferson County, Act No. 1144 (1971 Alabama Acts ), and to make a claim against the administratrix, individually, for $100,000.00 in damages.

The trial began on petitioners' claim in probate court on March 26, 1987, with attorneys for both sides present. Petitioners' case began and continued for three hours, until the judge recessed for the day. By 8:30 a.m. the following morning, the administratrix of the estate had obtained an order from the Honorable Marvin Cherner granting her petition for removal of the administration of the estate to circuit court pursuant to § 12-11-41, Code of Alabama (1975).

Petitioners now seek a writ of mandamus on three grounds:

1. That once equity jurisdiction had been invoked pursuant to Act No. 1144, Judge Cherner did not have the authority and/or jurisdiction under § 12-11-41, Code of Alabama (1975), to remove the matter from probate court to circuit court.

2. That Judge Cherner abused his discretion by ordering removal to circuit court in the middle of the oral hearing in the probate court.

3. That Judge Cherner had no right to remove the administration of the estate to circuit court without notice to the claimants against the estate.

Since mandamus is an extraordinary remedy, the standard for determining whether it should be granted is to determine whether there has been a clear abuse of discretion by the trial judge in an arbitrary and capricious manner. Ex parte Nelson, 448 So.2d 339, 340 (Ala.1984); Ross v. Luton, 456 So.2d 249 (Ala.1984); Ex parte Hartford Insurance Co., 394 So.2d 933 (Ala.1981); Ex parte Wilson, 408 So.2d 94 (Ala.1981). Further, a writ of mandamus will not be issued unless the movant has a clear and indisputable right to a particular result. Ex parte Thompson, 474 So.2d 1091 (Ala.1985); Ex parte Southway Discount Center, Inc., 445 So.2d 898 (Ala.1984). Since we find no abuse of discretion by Judge Cherner, we deny the writ of mandamus. Nevertheless, we will address all three issues raised by the petitioners.

Authority of Circuit Judge to Grant Removal

Petitioners argue that there is a conflict between the general removal statute, § 12-11-41, Code of Alabama (1975), and the local act, Act No. 1144 (1971) Alabama Acts. Act No. 1144 permits the probate court to exercise concurrent jurisdiction with the circuit court on equity issues by granting the parties the power to invoke equity jurisdiction in the probate court for those cases already within its jurisdiction. The stated purpose of the statute is to expedite and facilitate the administration of estates by permitting the probate court to apply equitable remedies to the cases already within its jurisdiction. Act No. 1144, § 6.

Petitioners argue that this statute conflicts with the general removal provision of § 12-11-41, Code of Alabama (1975), which states:

The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.

Though the local act confers equity jurisdiction on the probate court, § 6 of the local act makes it evident that powers granted to the court pursuant to the local act in no way affect the rights and conditions for removal under the general statute. Section 6 of Act No. 1144 states:

The jurisdiction conferred by this act on the Probate Courts and the Probate Judges of such counties is intended to be cumulative only, and it is not intended hereby to in any manner limit or restrict the present jurisdiction of the Circuit Courts or the Probate Courts of such counties, including, without limitation, the right to appeal from orders, judgments and decrees of the Probate Judges of such counties in the manner as now provided by law. Nothing in this act shall be construed as prohibiting or as creating any conditions to the removal of any estates, or the administration of any estates, from the Probate Court to the Circuit Court, in equity, as is now provided by law. It is the primary intention of this act to expedite and facilitate the administration of estates and such other matters as are mentioned herein in counties of over 500,000 population, and should any part of this act be declared unconstitutional, such declaration shall not affect the remainder of this act. [Emphasis added.]

There is no ambiguity in the language of the local act; thus, there is no need for this Court to go beyond the face of the statute. We find that the local act does not limit or change the administratrix's right to remove pursuant to the requirements of § 12-11-41, Code of Alabama (1975).

Given our finding that there is no conflict between the local act and the general statute, the remaining question is whether the administratrix properly petitioned for removal pursuant to § 12-11-41, Code of Alabama (1975). It is undisputed that the petition for removal complied with the formal requirements of § 12-11-41. However, petitioners dispute the timeliness of the petition and the ex parte nature of the order.

Timeliness of Petition for Removal

Section 12-11-41, Code of Alabama (1975), allows removal of the administration of the estate "at any time before a final settlement." The parties were in the midst of the trial on petitioners' breach of warranty claim against the estate when the administratrix of the estate petitioned for removal to circuit court. The administratrix had appeared in probate court and was actively participating in the trial at the time she petitioned for removal. Petitioners have not argued that commencement of the trial on the claim against the estate constituted a "final settlement" of the estate, nor does this Court conclude that it was a final settlement.

The language of the statute--"at any time before a final settlement"--is broad and allows removal at any time. § 12-11-41, Code of Alabama (1975). The only limitation on removal occurs once the probate court has taken steps toward a final settlement, or has, in fact, made a final settlement. Mobbs v. Scott, 233 Ala. 70, 169 So. 698 (1936); Ex parte McLendon, 212 Ala. 403, 102 So. 696 (1924). Nonetheless, this rule does not apply if the probate court lacks the authority or jurisdiction to render adequate relief in equity. Crossland v. First National Bank of Montgomery, 233 Ala. 432, 172 So. 255 (1937).

"Final settlement" has a distinct meaning. Section 43-2-502, Code of Alabama (1975), states what actions constitute a final settlement:

In making settlements of an administration, the executor or administrator must proceed as follows:

He must make out an account between himself and the estate he represents, ... which account, verified by his oath, must be filed with the judge of probate of the court having jurisdiction.

With such account he must also file the vouchers and written evidence in his possession, ... file a statement, on oath, of the names of the heirs and legatees of such estate....

He must state the sum of funds of the estate which he has used for his own benefit....

Furthermore, this Court has previously held that "[j]urisdiction for final settlement in the probate court begins upon filing accounts and vouchers with statement of the heirs invoking the court's jurisdiction for such settlement and an order entered setting day, directing notice, etc." McLendon, supra, 212 Ala. at 405, 102 So. 696, citing §§ 5901, 5904, Code of Alabama (1923), now §§ 43-2-501 and 43-2-502, Code of Alabama (1975).

Finally, the administratrix's petition for removal of the administration of the estate must be considered separate and distinct from petitioners' claim against the estate. If, for instance, an heir of the estate who was uninvolved in the claim against the estate for the breach of warranty, rather than the administratrix, had petitioned for removal at precisely the same time, the petitioners would have little basis for arguing that the petition for removal was based on what occurred at the trial.

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