Hardy ex rel. Estate of Carter v. Hardin

• Decision Date: 22 January 2016
• Docket Number: 1130612.
• Citation: 200 So.3d 622
• Parties: Emma Carter HARDY ex rel. the Estate of Julius CARTER, Sr., deceased v. Julius L. HARDIN.
• Court: Alabama Supreme Court

200 So.3d 622

Emma Carter HARDY ex rel. the Estate of Julius CARTER, Sr., deceased

v.Julius L. HARDIN.

1130612.

Supreme Court of Alabama.

Jan. 22, 2016.

William H. Webster and D. Mitchell Henry of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for appellant.

Roy C. Dumas of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee.

MURDOCK

, Justice.

Emma Carter Hardy (“Hardy”), acting on behalf of the estate of Julius Carter, Sr., deceased, appeals from a final order entered by the Montgomery Circuit Court against her and in favor of Julius L. Hardin (“Hardin”) in a will contest. Hardy is the daughter of Julius Carter, Sr. (“Carter”); Hardin is the son of Thelma Carter Malone, who is also a daughter of Carter's.

Carter died on December 23, 2002. He was survived (1) by four daughters, Hardy, Gloria Jean Carter, Thelma Carter Malone, and Deloris Carter Johnson; (2) by one son, Cleveland Carter (sometimes referred to as Cleavon Carter);¹ and (3) by grandchildren through two deceased sons: Luther Carter, whose children are Luther Heard and Jackie Heard, and Robert Carter, whose children are Venus Franklin and Gloria Dupree. Carter also had another deceased son, Julius Carter, Jr., who died without any descendants.

On December 16, 2009, Hardy filed a petition in the Montgomery Probate Court for letters of administration as to Carter's estate. Hardy alleged in the petition that Carter had died “leaving no Last Will and Testament, so far as [Hardy] knows or believes,” and that the only asset of Carter's estate was a parcel of real property located in Montgomery County. The parcel of real property consisted of approximately 180 acres that Carter had farmed. Hardy requested that she be appointed as personal representative of Carter's estate. In her petition, Hardy disclosed the existence of all the heirs listed above, except Venus Franklin.

On December 17, 2009, the probate court issued an order appointing Hardy personal representative of Carter's estate, and the probate court issued letters of administration to Hardy. Thereafter, Hardy filed an inventory for Carter's estate; the inventory included the aforementioned parcel of real property as the only asset of Carter's estate.

On November 30, 2011, Hardy filed a petition for final settlement of Carter's estate. The petition for final settlement was set for a hearing to be held on January 25, 2012.²

On January 25, 2012, Hardin filed a letter with the probate court. The letter stated:

“I ask that you postpone this Petition for Final Settlement ... as I am a party, but a nonlisted party to the case of Julius Carter's land. I am writing this letter to ask that this hearing be postponed to take into consideration that the will of Julius Carter was willfully not probated and fraudulently acted as if there was not one.

“This hearing would progress as if there was no will and would make any motion and void. The execut[rix] of the will, Gloria Carter ..., failed to fulfill her duties and probate the aforementioned will of Julius Carter for her own purposes. She intended to leave me out of the will as I am listed as party to the will from my grandfather. She consciously decided to leave me out of the will and acted as if there was no will at all. There was adequate time for her to go through the legal process and have the will probated.

“Not knowing the laws and statute of limitations, I was at a loss as to what could be done to show that I am a named party in my grandfather's will. I did not have available funding to secure a lawyer to help or figure out what steps I could make in making sure the lawful process of probate was carried out. I recently obtained a copy of the will from the Office of [Attorney] Sandra Lewis in the Bell Building.

“I respectfully ask that you postpone this hearing which will leave me out of the probate process that was set in place that had me listed in my grandfather's will. This hearing would aid in helping the parties commit a fraud against my grandfather's wishes and the laws of the State of Alabama.

“... Please enter this letter as a part of the proceedings of the land issue at hand for future legal proceedings that will take place to right this wrong.”

After filing the foregoing letter, Hardin filed a petition in the Montgomery Probate Court seeking the admission to probate of a document purported to be Carter's will; Hardin amended his petition on several occasions, the last time on November 28, 2012. The petition alleged that Hardy's petition for letters of administration “falsely represented” to the probate court that Carter had died without a will. Hardin requested that the probate court admit Carter's purported will to probate and that the court appoint him as personal representative of Carter's estate, even though the will names Gloria Jean Carter (“Gloria”) as personal representative of Carter's estate and Cheryl Denise Carter, Gloria's daughter, as successor personal representative.

We note that the will offered as Carter's is in the form of a self-proving will and was apparently executed on March 31, 1999. As to the disposition of Carter's real property, the will provides:

“I give, devise, and bequeath a fee simple title to all of my real property to my daughter, Gloria Jean Carter, my granddaughter, Cheryl Denise Carter, and to my grandson, Julius Lamont Hardin in equal shares to share and share alike.

“I give, devise, and bequeath a life estate in my real property to my son, Julius Carter, Jr.[,] to my daughter, Emma Lee Hardy, Luther Carter, to my son, Cleavon Carter, to my daughter, Thelma C. Malone, and to my daughter, Deloris Ann Carter [Johnson], for use during their lives, without rent, liability for waste, or bond, but subject to the payment of taxes and insurance premiums. Said life estate shall not establish an entitlement and/or right to cut and/or sell timber on the land. No timber shall be sold on any land without the approval of Gloria Jean Carter, Cheryl Denise Carter, and Julius Lamont Hardin.”

Hardy filed a will contest challenging Hardin's admission of the purported will to probate. Hardy alleged that she “had no knowledge regarding the purported” will when she filed her petition for letters of administration

“and that the Petition to Probate the purported Last Will and Testament of Julius Carter, Sr., Deceased is due to be dismissed based on the Statute of Limitations set forth in the Code of Alabama § 43–8–161

which states that ‘[w]ills shall not be effective unless filed for probate within five years from the date of the death of the testator.’ ”

On May 14, 2013, the probate court conducted an ore tenus proceeding in Hardy's will contest. During the proceeding, Hardin argued that the limitations period described in § 43–8–161, Ala.Code 1975

, was not controlling because, he contended, Gloria and Hardy had committed fraud. Hardin directed the probate court's attention to § 43–8–5, Ala.Code 1975, which states:

“Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter or if fraud is used to avoid or circumvent the provisions or purposes of this chapter, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within one year after the discovery of the fraud or from the time when the fraud should have been discovered, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of the commission of the fraud.”

On May 23, 2013, the probate court entered an order in favor of Hardy and against Hardin on Hardy's claim that the will should not be admitted to probate. In the order, the probate court specifically concluded that the will was not timely filed for probate under § 43–8–161, Ala.Code 1975

. The May 2013 order further states:

“2. ... Hardin, failed to prove the requisite fraud to the Court on the part of either the Contestant, ... Hardy or by Gloria Jean Carter, an heir possessing the purported Last Will and Testament, which is required to toll the statute of limitations pursuant to the law. Russell v. Maxwell, 387 So.2d 156 (Ala.1980)

.

“3. ... Hardin, not only knew that Gloria Jean Carter had possession of the purported Will of Julius Carter, Sr., deceased, but also testified in open Court that he had given her financial assistance to file said Will in the Probate Court. Gloria Jean Carter testified in open Court that after the death of said decedent, that she had possession of the original Will but never filed it for probate. Pursuant to Code of Alabama, 1975, § 43–8–270, ‘After the death of a testator and on request of an interested person, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court.’ [Hardin] knew that Gloria Jean Carter had possession of the original purported Will of said decedent, but failed to file a Motion to Compel Will to be filed with the Probate Court to force the production of the purported Will to the person that had custody of the original will and could have done so anytime within the five year statute of limitations.”

On July 3, 2013, Hardin filed a notice of appeal in the probate court, appealing the probate court's decision to the Montgomery Circuit Court. See Ala.Code 1975, § 12–22–20

(“An appeal lies to the circuit court or Supreme Court from any final decree of the probate court, or from any final judgment, order or decree of the probate judge....”); Ala.Code 1975, § 12–22–21 (“Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or Supreme Court in the cases hereinafter specified.... Appeal to the circuit court in such cases shall be within the time hereinafter specified: (1) From the...