Steele v. Sullivan

• Decision Date: 07 February 1986
• Citation: 484 So.2d 422
• Parties: Allen W. STEELE v. C.J. SULLIVAN, as Executor of the Estate of Ira Eugene Steele, deceased. 84-647.
• Court: Alabama Supreme Court

Page 422

484 So.2d 422

Allen W. STEELE v. C.J. SULLIVAN, as Executor of the Estate of Ira Eugene Steele, deceased.

84-647.

Supreme Court of Alabama.

Feb. 7, 1986.

B. Stephen Sansom, Florala, for appellant.

Harold Albritton of Albrittons & Givhan, Andalusia, for appellee.

HOUSTON, Justice.

Allen W. Steele appeals from an order of the Circuit Court of Covington County dismissing, for lack of jurisdiction, his action contesting the document offered as the last will (and codicil) of Ira Eugene Steele. We reverse and remand.

The material facts of this case are best stated in the affidavit of Leland Enzor, which, in pertinent part, reads as follows:

"My name is Leland Enzor. On June 1, 1984, I was Probate Judge of Covington County, Alabama, and had served in that office for many years. On April 23, 1984, C.J. Sullivan filed in the Probate Court of Covington County a Petition to probate the Last Will and Testament of Ira Eugene Steele, dated March 31, 1975, attested by Charlotte J. Brown, Paula S. Tillman and Louise Eiland, and a Codicil to such Will dated November 5, 1981, and attested by John N. Albritton, Thomas S. Mancuso and J. Theodore Jackson. On the same day I set the 1st day of June 1984, at 10:00 A.M. as the day and time for hearing the Petition and gave notice of the day, time and place of the hearing to the heirs at law as listed in the Petition, including Allen W. Steele.

"At 10:00 A.M. on June 1, 1984, no contest had been filed to the Will and Codicil of Ira Eugene Steele being offered for probate and the matter came on for hearing before me. The Petition, Will and Codicil were presented to me, the witnesses whose testimony would establish the Will and Codicil were examined under oath and testified as to all facts required by law to be proved for the Will and Codicil to be admitted to probate, and the Will and Codicil were proved, all before the filing of any contest in the Probate Court. After the Will and Codicil had been proved, but while the testimony of the witnesses was being reduced to writing and a written Order admitting the Will and Codicil to probate was being prepared, and before such documents were signed, I was presented a document purporting to be a contest by Allen W. Steele of the Will and Codicil of Ira Eugene Steele and a motion that the contest be transferred by the Probate Court to the Circuit Court of Covington County for trial before a jury, together with a proposed Order transferring the contest to the Circuit Court. I marked the contest and motion filed and signed the Order transferring the contest to the Circuit Court.

"The contest was filed, and the Order transferring the contest to the Circuit Court was signed, after the Will and Codicil were proved by examination of the necessary witnesses, but before the witnesses' testimony and the order admitting the will and Codicil to probate were signed."

The circuit court, relying upon the authority of Allen v. Pugh, 206 Ala. 10, 89 So. 470 (1921), found that it did not have jurisdiction to hear the contest, and ordered it stricken from its docket. The appellant contends that in so doing the circuit court erred to reversal. We agree.

Section 43-8-190, Code 1975, reads:

"A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury. (Code 1852, § 1634; Code 1867, § 1953; Code 1876, § 2317; Code 1886, § 1989; Code 1896, § 4287; Code 1907, § 6196; Code 1923, § 10625; Code 1940, T. 61, § 52; Code 1975, § 43-1-70.)" (Emphasis added.)

The jurisdiction of the probate court to entertain a proceeding contesting a will is statutory and limited, and after a will is probated, that jurisdiction ceases to exist. Section 43-8-190, supra; Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941). The jurisdiction conferred upon the circuit court by § 43-8-198, Code 1975 (authorizing transfer), is also statutory and limited, and to warrant the exercise of that jurisdiction, a valid contest must be pending in the probate court when the order to transfer is entered. Ex parte Pearson, supra, (construing § 10636, Code 1923), a predecessor of § 43-8-198.

In Allen v. Pugh supra, the Court, construing § 6196, Code 1907, a predecessor of § 43-8-190, supra, stated:

"The probate of a will is defined to be:

" 'The proof before an officer authorized by law that the instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be. 2 Bouv. Law Dict. 378.

"And in providing for the contest of a will before the probate thereof, we think it is clear that the statute requires the filing of the contest before the examination of the witnesses whose testimony would establish the will, the word 'probated' being referable to the proving of the will on the day set therefor, rather than to the mere indorsement of the certificate of probate on the will as evidence of the fact of probate...."

The appellee argues that the contest was filed subsequent to the examination of the attesting witnesses and was, therefore, untimely.

However, the Court in Ex parte Pearson, supra, stated as follows:

"The jurisdiction of the Probate Court to entertain a proceeding contesting a will is a statutory and limited jurisdiction, and after the proceeding to probate the will has eventuated in a final decree admitting the will to probate the court is without jurisdiction to entertain a contest."

In the more recent case of Cagle v. Reeves, 353 So.2d 787 (Ala.1977), the Court explained:

"Appellees say that no valid contests are pending in the probate court because the statute providing for contest before probate requires filing the contest before examination of the witnesses whose testimony would establish the will. In this regard they rely upon the case of Allen v. Pugh, 206 Ala. 10, 89 So. 470 (1921). This court, in using [this emphasized] language in Allen, was merely illustrating that when it had previously reversed the probate court for denying probate of a will it was now saying that its former decision meant the will was probated on the date and occasion it was proved and on which it should have originally been admitted to probate...." ¹

In the present case, it is without dispute that the contest was filed in the probate court subsequent to the examination of the attesting witnesses but prior to the entry of a final decree admitting the will to probate. As previously noted in Allen v. Pugh, supra, the term "probate," when properly defined and strictly used, relates to proving and establishing a will before the officer or tribunal having the jurisdiction to determine its validity. However, as so used, it necessarily includes not only the evidence presented to the court, but also the judicial determination by the court, on that evidence, that the instrument is what it purports to be. In Hooper v. Huey, 293 Ala. 63, 300 So.2d 100 (1974), the Court quoted with approval from Brissie v. Craig:

" 'In its true sense, the probate or proof of a will is the judicial process by which a court of competent jurisdiction in a duly constituted proceeding tests the validity of the instrument before the court, and ascertains whether or not it is the last will of the deceased. (Citations omitted) Thus the probating or proving of wills involves the rejection of void scripts as well as the establishment of valid ones.' " (Emphasis added.)

232 N.C. 701, 62 S.E.2d 330 (1950).

See also Bradley v. Bradley, 119 Md. 645, 87 A. 390 (1913); Reynolds v. Central Health Care Centers, Inc., 669 S.W.2d 74 (Mo.Ct.App.1984), citing Graham v. Graham, 297 Mo. 290, 249 S.W. 37 (1923); In re Will of Lamb, 303 N.C. 452, 279 S.E.2d 781 (1981). Even though the probate judge stated by affidavit that the will had, in fact, been proven and that he intended to enter an order admitting it to probate, our determination in cases such as this, regarding the timeliness of a contest in the probate court, should not be dependent upon such an affidavit. A final judgment is the official and authentic decision of a court of competent jurisdiction and its purpose is to resolve the respective rights and claims of the parties to an action therein litigated and submitted for its determination. Black's Law Dictionary, page 755 (5th Ed.1979). Therefore, in providing for the contest of a will before the probate thereof, we hold that § 43-8-190, supra, requires the filing of the contest in the probate court before a final judgment, order, or decree is rendered admitting the will to probate. ²

Because the contest was timely filed in the...