McElroy v. McElroy

Decision Date15 December 2017
Docket Number1160394
Citation254 So.3d 872
Parties Tomeka MCELROY and Marlon McElroy v. Tracy MCELROY
CourtAlabama Supreme Court

John G. Dana and James A. Stewart of Gordon, Dana & Gilmore, LLC, Birmingham, for appellants.

Rodger M. Smitherman of Smitherman Law Offices LLC, Birmingham; and Wayman Powell III, Birmingham, for appellee.

BRYAN, Justice.

Tomeka McElroy and Marlon McElroy (hereinafter referred to collectively as "the appellants") appeal from a judgment of the Jefferson Circuit Court ("the circuit court") denying their will contest. For the reasons set forth herein, we dismiss the appeal.

Procedural History

On April 14, 2010, Tracy McElroy filed a petition to probate the will of Clifton McElroy, Jr., in the Jefferson Probate Court ("the probate court"). The petition stated that Clifton died on April 11, 2010, and that Clifton's will, which was attached to the petition and which named Tracy as the executrix, was self-proving in accordance with the requirements of § 43–8–132, Ala. Code 1975. On the same day, the probate court admitted the will to probate and issued letters testamentary to Tracy.

On September 16, 2010, the appellants filed a will contest in the probate court, alleging that Clifton's signature on the will was forged and that, therefore, the will was not properly executed.1 The appellants, who were both Clifton's heirs and beneficiaries under his will, demanded that their will contest be transferred to the circuit court pursuant to § 43–8–198, Ala. Code 1975, which provides for the transfer of a will contest by the probate court to the circuit court, or that the administration of the estate, including the will contest, be removed to the circuit court pursuant to § 12–11–41, Ala. Code 1975, because, they said, the estate could be better administered in the circuit court.

Tracy filed a motion to dismiss the will contest, arguing that, because the will had already been admitted to probate, the will contest could not be filed pursuant to § 43–8–190, Ala. Code 1975, and that the only other provision for filing a will contest, § 43–8–199, Ala. Code 1975, required the appellants to file the will contest in the circuit court. Tracy also moved to dismiss the appellants' "petition to remove" the administration of the estate to the circuit court pursuant to § 12–11–41.

The appellants argued that the will contest was properly filed in the probate court because a local act applicable to Jefferson County gave probate courts concurrent jurisdiction with circuit courts to decide will contests. Specifically, Act No. 1144, Ala. Acts 1971, provides that the probate court has "general jurisdiction concurrent with that of the Circuit Courts of this State, in equity, in the administration of the estates of deceased persons." Thus, they argued, because the probate court shared concurrent equitable estate jurisdiction with the circuit court, the probate court had jurisdiction to consider their will contest pursuant to § 43–8–199 and Act No. 1144. They also argued that the circuit court could have jurisdiction over their will contest pursuant to § 12–11–41, which allows for the removal of the administration of an estate from probate court to the circuit court "at any time before a final settlement thereof."

On November 30, 2010, the appellants filed in the probate court a notice of withdrawal of their petition to remove the administration of Clifton's estate from the probate court to the circuit court. In the notice, the appellants specifically asked the probate court to maintain jurisdiction of the will contest. However, on December 14, 2010, the probate court entered an order purporting to remove the administration of Clifton's estate to the circuit court pursuant to § 12–11–41. The probate-court record was certified by the probate court and was filed in the circuit court on June 21, 2012.2 There is nothing in the record before this Court indicating that the circuit court entered an order removing the administration of the estate from the probate court.3

After discovery delays, multiple continuances, and a failed summary-judgment motion filed by the appellants, the circuit court conducted a bench trial on the will contest over three days in December 2016. On December 29, 2016, the circuit court entered a judgment finding that Clifton's will did not meet the requirements of a self-proving will pursuant to § 43–8–132 but that the will was properly executed and, therefore, valid, pursuant to § 43–8–131, Ala. Code 1975. In that judgment, the circuit court, discussing its jurisdiction, stated that "the Probate Court of Jefferson County removed the administration of the Estate of Clifton McElroy, Jr. to the Circuit Court of Jefferson County pursuant to ... § 12–11–41" and that, "[a]fter the Probate Court of Jefferson County removed the administration of the [e]state ... to the Circuit Court of Jefferson County, the Circuit Court ordered the Jefferson County Probate Court to send the certified record (which included the will contest) and documents to the Jefferson Circuit Court." (Emphasis added.) The appellants timely appealed.

Jurisdiction

Although neither party raises a question before this Court regarding the circuit court's subject-matter jurisdiction to consider the appellants' will contest, the absence of subject-matter jurisdiction cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction ex mero motu. See MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393 (Ala. 2011). If the circuit court's jurisdiction to consider the will contest was never properly invoked, then the judgment entered on December 29, 2016, is void and would not support an appeal. MPQ, 78 So.3d at 394 (‘‘ ‘A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.’ " (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) )).

"The jurisdiction of both the probate court and the circuit court over will contests is statutory and limited. Ex parte Stephens, 259 Ala. 361, 66 So.2d 901 (1953). The only jurisdiction a court can take over such cases is that granted by statute. A court cannot depart from the procedures delineated in the statute and still retain jurisdiction."

Kaller v. Rigdon, 480 So.2d 536, 539 (Ala. 1985).

Before both the probate court and the circuit court, Tracy maintained that the will contest was improperly filed because the appellants filed the contest in the probate court after the will had been admitted for probate.

"Alabama law pertaining to will contests is well settled and long-standing:
" ‘In Alabama a will may be contested in two ways: (1) under § 43–8–190..., before probate, a contest may be instituted in the probate court or (2) under § 43–8–199..., after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.’ "

Ex parte Floyd, 105 So.3d 1193, 1195 (Ala. 2012) (quoting Stevens v. Gary, 565 So.2d 73, 74 (Ala. 1990) (emphasis added)).

It is undisputed that Clifton's will was admitted for probate on April 14, 2010, approximately five months before the appellants filed their will contest in the probate court. Accordingly, the will contest could not have been filed pursuant to § 43–8–190. In most circumstances, the will contest in this case would have also been improperly filed pursuant to § 43–8–199 because, although it was filed within six months after the will was admitted for probate, the appellants filed the contest in the probate court rather than the circuit court. See Bond v. Pylant, 3 So.3d 852 (Ala. 2008) (holding that a will contest filed in the probate court after the will was admitted for probate was a nullity and stating that, pursuant to § 43–8–199, the contest should have been filed in the circuit court within six months of the admission of the will to probate). However, in this case, the will contest was properly filed in the probate court pursuant to § 43–8–199 because the probate court, which lies in Jefferson County, has concurrent equity jurisdiction over estates with the circuit court pursuant to Act No. 1144, § 1. In nearly identical circumstances, this Court has held that the Mobile Probate Court, which also shares general equity jurisdiction concurrent with that of the circuit courts of this State in the administration of the estates of deceased persons, see Act No. 974, Ala. Acts 1961, had jurisdiction to consider a will contest filed after the will was admitted for probate based on the concurrent jurisdiction imparted to the probate court by Act No. 974. See Coleman v. Richardson, 421 So.2d 113 (Ala. 1982) (analyzing former § 43–1–79, Ala. Code 1975, which is now codified at § 43–8–199, and holding that the probate court had jurisdiction over the will contest even though it was filed in the probate court after the will was admitted for probate based on the conference of concurrent equity jurisdiction by Act No. 974). Accordingly, we conclude that the probate court had jurisdiction over the appellants' will contest at the time it was filed. See Daniel v. Moye, 224 So.3d 115, 131 n.9 (Ala. 2016) (noting that "there are currently four counties in Alabama—Mobile, Jefferson, Shelby, and Pickens—in which the probate courts have been vested with concurrent equitable estate jurisdiction with the circuit court to try will contests after a will has been admitted to probate" (emphasis added)).

When they filed their will contest, the appellants moved the probate court to transfer the contest to the circuit court pursuant to § 43–8–198 or to remove the administration of the estate, including the will contest, to the circuit court pursuant to § 12–11–41. See generally Ex parte Clayton, 514 So.2d 1013, 1017 (Ala. 1987) ("Administration of the estate is a broad concept involving all matters necessary to reach a final settlement of the...

To continue reading

Request your trial
19 cases
  • Segrest v. Segrest
    • United States
    • Alabama Supreme Court
    • December 4, 2020
    ...court did not have jurisdiction over the case. She argued:"13.) Subject-matter jurisdiction cannot be waived. In McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017), the Supreme Court of Alabama stated:" ‘Although neither party raises a question before this Court regarding the circuit court......
  • Jones v. Brewster, 1170450
    • United States
    • Alabama Supreme Court
    • March 15, 2019
    ...attempted appeal from such a void judgment.’ " (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) ) ).’ " McElroy v. McElroy, 254 So.3d 872, 875 (Ala. 2017)." ‘ "In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Ala. Code 1975, before probate, the contest m......
  • Johnson v. Ala. Sec'y of Labor Fitzgerald Wash.
    • United States
    • Alabama Supreme Court
    • June 30, 2023
    ...merits. See McElroy v. McElroy, 254 So.3d 872, 875 (Ala. 2017). While we must resolve all jurisdictional questions before any merits issues, id., situations where we are faced with multiple jurisdictional questions at once, we may choose to decide them in any order, see Ruhrgas AG v. Marath......
  • Fernando v. City of Chickasaw
    • United States
    • Alabama Supreme Court
    • March 17, 2023
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT