Forrester v. Putman
| Decision Date | 25 November 1981 |
| Parties | John E. FORRESTER, Jr. v. Emolyn W. PUTMAN. 80-6. |
| Court | Alabama Supreme Court |
David R. Donaldson of Gorham & Donaldson, Birmingham, for appellant.
Jack E. Held and F. Timothy McAbee of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
Mrs. Frances Forrester died on September 23, 1977, survived by her son John Forrester, Jr., (appellant) and her sister, Emolyn Putman. Mrs. Putman's husband, Oather Putman, filed in Shelby County Probate Court a will which he had written for Mrs. Forrester, as her attorney, dated August 18, 1977. John contested this will in Shelby Probate Court, but the petition for probate was dismissed without prejudice on April 3, 1978, by stipulation. John filed an action in Shelby Circuit Court on April 12, 1978, challenging joint ownership with right of survivorship between Mrs. Forrester and Mrs. Putman of certain securities for which John asserted Mrs. Forrester had paid the whole consideration. Thereafter, on May 16, 1978, the Putmans' attorney sent a letter to John's attorney, purporting to withdraw the stipulation for dismissal "(i)n light of the lawsuit which was recently filed...."
On April 24, 1978, John filed in Shelby Probate Court for probate of a will executed by Mrs. Forrester on March 5, 1974. The Judge of Probate admitted this will to probate on May 24, 1978, and granted letters testamentary to John. Mrs. Putman filed an action in Shelby Circuit Court on July 6, 1978, contesting the 1974 will and John's letters testamentary, alleging that the 1974 will had been revoked by the 1977 will. This contest was consolidated with John's action to set aside the transfer of interest in the securities; in this aspect of the case, the circuit court set aside the transfer of an interest to Mrs. Putman based upon a finding of undue influence and this portion of the order was not appealed.
The facts of the case showed that prior to the death of her husband, John Forrester, Sr., in 1975, Mrs. Forrester had emotional problems and consumed excessive amounts of alcohol and drugs. The testimony conflicted over her condition prior to and at the time of execution of the 1977 will; there was credible evidence both for and against her capacity. In addition to capacity, John raised undue influence as a challenge to the 1977 will. The court found that the presumption of undue influence, raised by the confidential relationship, by the Putmans' role in execution of the will, and by the fact that her attorney was her brother-in-law and an indirect beneficiary, was not overcome with regard to the stock transaction, but was overcome with regard to the will execution. The decree bases this finding on the lack of evidence relating to independent choice in the former instance and the plethora thereof (which also went to the issue of capacity) in the latter.
The trial began on May 21, 1980; after the examination of John's first witness, the court made the following statement:
For the record, in reviewing the file (in Mrs. Putman's will contest action), I see that our pleadings were technically deficient. By agreement, however, and in accordance with the evidence to be presented, the 1977 will, which is mentioned in the Plaintiff's Complaint, is offered at this time for probate and Defendant objects to the probate of that will on the same grounds he has set out for relief in (his action to set aside the inver vivos transfers).
The Court's final order decreed the 1977 will to be valid, but made no mention of the 1974 will which was the subject of Mrs. Putman's complaint. In ruling on John's motion for a new trial, the court stated:
Never was there any procedural objection until after Judgment was entered in this case. Further, the issues involved in this case were stated to the Court by both parties and were, therefore, clearly understood. Two wills, including the will which this Court upheld as valid, had been admitted to Probate. No jury demand was ever made in this case. Motion denied.
The circuit court's treatment of the 1977 will reflects misapprehension as to the status of this will. The purported unilateral withdrawal of the stipulation for dismissal is of dubious effect; even if it did serve to revive the probate proceeding, there is no support in the record for the trial court's observation that the 1977 will was admitted to probate. There was neither a transfer of a contest to the circuit court according to Code 1975, § 43-1-78, nor a circuit court contest of a will admitted to probate according to Code 1975, § 43-1-79. A circuit court's jurisdiction over a will contest is statutory and limited. Nottage v. Jones, 388 So.2d 923 (Ala.19...
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Segrest v. Segrest
...to entertain a will contest is conferred upon both the probate courts and the circuit courts by statute. Forrester v. Putman, 409 So. 2d 773 (Ala.1981)."If a will has been probated, one who has not therefore contested it may do so within six months after it has been probated by filing a com......
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Daniel v. Moye, 1140819 1140820.
...to entertain a will contest in Alabama is conferred upon both the probate court and the circuit court by statute. Forrester v. Putnam, 409 So.2d 773 (Ala. 1982). " ‘In Alabama, a will may be contested in two ways: (1) under § 43–8–190, Ala. Code 1975, before probate, the contest may be inst......
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Jones v. Brewster, 1170450
...is statutorily conferred, the procedural requirements of the applicable statute must be complied with exactly."); Forrester v. Putman, 409 So.2d 773, 775 (Ala. 1981) ("There was neither a transfer of a contest to the circuit court according to Code 1975, § 43-1-78 [, now § 43-8-198 ], nor a......
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Ex parte Johnson
...to Rule 21, Ala.R.App.P. We note, initially, that a lack of subject matter jurisdiction may be raised at any time, see Forrester v. Putman, 409 So.2d 773 (Ala.1981); Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967); and Rule 12(h)(3), Ala.R.Civ.P.; we note, too, that the question of su......