Kaller By and Through Conway v. Rigdon
| Decision Date | 30 August 1985 |
| Parties | Eugenia KALLER, a minor, By and Through her court appointed Guardian Ad Litem Don CONWAY v. James R. RIGDON. 84-165. |
| Court | Alabama Supreme Court |
Don Conway, Mobile, for appellant.
Donald G. Beebe of Newton & Beebe, Mobile, for appellee.
The will of Johnnie Mae Brewer Bush was offered for probate by her executrix but was contested by Eugenia Kaller, her granddaughter. Upon motion of James Rigdon, the proponent of the will, the case was transferred to circuit court for jury trial. From a verdict upholding the validity of the will, Kaller appeals. We reverse and remand.
Mrs. Bush died on 29 April 1983. Her will provided legacies for five brothers and sisters and for the children of her deceased brother. The children of her deceased daughter, however, were specifically left out of the will. One of those unprovided-for children was Eugenia Kaller.
Kaller, a minor, acting through her court appointed guardian ad litem, filed a contest to the will on 10 October 1983, the same day the will was submitted for probate. In the ensuing months, the proponent of the will filed several papers relating to the contest, including a consent to appointment of an administrator ad colligendum on 1 November 1983, and a motion to add Kaller's father as a real party in interest on 5 January 1984; however, he never filed a responsive pleading.
On 10 February 1984, the Friday before the case was to be tried on the following Monday in probate court, the proponent filed a motion to transfer the contest to the circuit court. No other pleading or paper was filed with this motion. The probate court granted the motion. At trial, the jury decided the will was valid. Kaller filed a motion to remand to the probate court for lack of jurisdiction. Both motions were denied. This appeal followed.
In Alabama, the statute granting the right of the circuit court to hear will contests, Code 1975, § 43-8-198, reads as follows:
"Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made...."
The jurisdiction conferred on the circuit court by this section of the Code is a statutory and limited jurisdiction. Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941). Because will contest jurisdiction is statutorily conferred, the procedural requirements of the applicable statute must be complied with exactly. Simpson v. Jones, 460 So.2d 1282 (Ala.1984). Section 43-8-198 mandates that, in order to transfer to the circuit court a valid contest of a will not yet admitted to probate, and thereby to confer proper jurisdiction upon the circuit court, a party must demand transfer at the time he files his initial pleading. Baker v. Bain, 237 Ala. 618, 188 So. 681 (1939).
Although Kaller offers several grounds of error for review, the one dispositive issue in this case is whether a motion to transfer a will contest filed by the proponent of a will without support of a responsive pleading can be regarded as a demand "made at the time of filing [his] initial pleading" for purposes of § 43-8-198. We find that it cannot be so regarded.
Rule 7(a), ARCP, explains the nature of the term "pleading": A motion, defined in Rule 7(b), ARCP, as "an application to the court for an order," is not a pleading. Therefore, although he filed motions and papers with regard to the contest, because the proponent did not file a pleading at the same time he filed the motion to transfer, he did not comply with the procedures mandated by the statute. Since the statute was not exactly complied with, the circuit court lacked jurisdiction to try the contest.
The proponent of a will files a pleading when he files the petition for probate of the will. However, this pleading cannot serve as a proponent's "initial pleading" for purposes of § 43-8-198. Were it to be so regarded, a proponent would never have an opportunity to transfer a will contest, since at the time he files a petition for probate no will contest has yet been filed. This court has held there must be a valid will contest pending in the probate court before the probate judge can transfer the contest to the circuit court. Nottage v. Jones, 388 So.2d 923 (Ala.1980). But § 43-8-198 states that a will contest must be transferred upon timely demand of any party to the contest; clearly, the legislature did not intend to deprive the proponent of a will the same opportunity to demand transfer of a will contest as that given to the contestant of a will. Logically then, the "initial pleading" for the proponent of a will must be the first responsive pleading after a will contest has been filed.
The "initial pleading" for the contestant in a will...
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