Kemp v. Kroutter
Citation | 531 So.2d 854 |
Parties | Lois KEMP v. Francis X. KROUTTER, individually, and as executor of the Estate of Charles L. Kroutter, deceased; et al. 86-1395. |
Decision Date | 02 September 1988 |
Court | Alabama Supreme Court |
John A. Courtney, Mobile, for appellant.
Eaton G. Barnard of Stout, Roebuck & Rossler, Guardian ad Litem, Mobile, for Dawn Marie Kroutter, appellee.
William H. McDermott of Sirote, Permutt, McDermott, Slepian, Friend, Friedman, Held & Apolinsky, Mobile, for Estate of Charles L. Kroutter, deceased.
Ralph G. Holberg, III of Holberg & Danley, Guardian ad Litem, Mobile, for Mary Pauline Kroutter, appellee.
In this proceeding for the probate of the will of Charles L. Kroutter, Lois Kemp filed a motion for determination of widowhood, requesting that the probate court declare her to have been the common-law wife of Kroutter at the time of his death. Kemp requested a trial by jury; the executor and others filed motions to strike the demand for jury trial, and the probate court granted these motions. After a trial, the probate court determined that Kemp was not the common-law wife of Kroutter. She appeals, arguing as error the striking of her request for jury trial and the granting of a motion in limine based on the Dead Man's Statute, Ala.Code 1975, § 12-21-163.
The issue with respect to the request for jury trial is easily resolved. "There is no common law right to a trial by jury in the probate court...." Ex parte Floyd, 250 Ala. 154, 157, 33 So.2d 340, 342 (1947); Hanks v. Hanks, 281 Ala. 92, 199 So.2d 169 (1967). The right to a jury trial in probate court depends upon a statutory grant of that right. Id. Kemp has cited no such statutory grant relevant to her claim to be Kroutter's widow, and we have found none. She has not filed a contest to the will, which would carry a right to a jury trial, Ala.Code 1975, § 43-8-190, but has merely filed a claim as an omitted spouse, § 43-8-90. The probate court did not err in striking her request for jury trial.
We note that the only cases cited by Kemp in this portion of her argument, Sherer v. Burton, 393 So.2d 991 (Ala.1981), and White v. Manassa, 252 Ala. 396, 41 So.2d 395 (1949), have no tendency to support her claim to a right to trial by jury in this probate proceeding. We note also the appellees' argument that a petition for writ of mandamus is the proper method to contest an order striking a request for trial by jury. Whitman v. Mashburn, 286 Ala. 209, 238 So.2d 709 (1970).
Kemp's second argument is that the court erred in granting a motion in limine to preclude her from testifying about statements made by Kroutter about their alleged marriage. The basis of the motion was the Dead Man's Statute, Ala.Code 1975, § 12-21-163:
"In civil actions and proceedings, there must be no exclusion of any witness because he is a party or interested in the issue tried, except that no person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding...."
Kemp cites Hanks v. Hanks, supra, as dispositive in holding that "the estate would neither be increased nor decreased by such testimony." The pertinent language in Hanks is:
281 Ala. at 98-99, 199 So.2d at 175.
Clark v. Glenn, 249 Ala. 342, 31 So.2d 507 (1947), was an action brought by Gladys Clark for revocation of letters of administration that had been granted to E.H. Glenn, the Lee County general administrator. Gladys claimed to be the widow of Bunk Henry Clark, and to be the largest creditor of his estate. The Lee County equity court revoked Glenn's letters, holding that Gladys was entitled to challenge the grant of letters because she was the largest creditor of the estate, but that she was not so entitled as widow of the decedent, there having been no lawful marriage between them. This Court, in affirming, observed that the Dead Man's Statute did not disqualify Gladys from testifying regarding her claim to be the decedent's widow:
249 Ala. at 346, 31 So.2d at 510.
Of course, because Clark simply concerned the grant of letters of administration, the estate obviously was not "interested" within the meaning of the Dead Man's Statute, and the same holding would not obviously apply in Gladys's attempt to be declared the widow so as to take a share of the estate. Upon inspection of this line of cases, however, we find that Clark correctly stated the law, and that Hanks correctly applied it; i.e., the Dead Man's Statute does not bar testimony affecting the manner in which an estate is to be distributed.
The line of cases on point traces to Kumpe v. Coons, 63 Ala. 448 (1879). Kumpe, applying the Act 1 from which the Dead Man's Statute derives, observed that its primary purpose was to repeal common-law rules making a person who was interested in the outcome of the suit incompetent to testify. The Court noted the exception regarding statements by or transactions with decedents, but held that the exception did not bar a proponent of a will who was a beneficiary thereunder from testifying regarding the execution of the will:
63 Ala. at 455-56 (emphasis in original; citations omitted). Note that the Court regarded the statute as remedial and that the quotation from Wharton's Evidence referred to contracts.
The holding in Kumpe was followed in Snider v. Burks, 84 Ala. 53, 4 So. 225 (1887), and in Henry v. Hall, 106 Ala. 84, 17 So. 187 (1895), which noted: "[T]he amendments to the statute have not changed the rule in this respect.--Act of 1890-91, p. 557; Code of 1886, § 2765." 106 Ala. at 101, 17 So. at 193. The cited amendment, 1890-91 Ala.Acts No. 255, brought the Dead Man's Statute to its present form.
Kumpe, Snider, and Henry all concerned will contests. The Court rendered a holding directly on point to the instant case, however, in Nolen v. Doss, 133 Ala. 259, 262, 31 So. 969, 970 (1902):
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