Stevens v. Gary

• Decision Date: 20 April 1990
• Citation: Stevens v. Gary, 565 So.2d 73 (Ala. 1990)
• Parties: Frederick H. STEVENS, et al. v. Louise H. GARY. 88-986.
• Court: Alabama Supreme Court

Page 73

565 So.2d 73

Frederick H. STEVENS, et al. v. Louise H. GARY.

88-986.

Supreme Court of Alabama.

April 20, 1990.

Rehearing Denied June 22, 1990.

Frederick H. Stevens, pro se.

James E. Hart, Jr., Brewton, for appellee.

ON REHEARING EX MERO MOTU

KENNEDY, Justice.

This Court's opinion of March 9, 1990, is withdrawn and the following is substituted therefor:

Plaintiffs--Frederick H. Stevens, Ray G. Stevens, Thomas G. Stevens, Guice Stevens, and Elizabeth Stevens Barnes, all of whom are the brothers and sister of L.M. Stevens, Jr., deceased--appeal from a dismissal of their action contesting the will of Ada C. Stevens, who had been the widow of L.M. Stevens, Jr.

L.M. Stevens, Jr., had died intestate on January 17, 1982, leaving a widow but no lineal descendants. Ada C. Stevens died testate in Conecuh County, Alabama, on October 4, 1987. The petition for probate and the will were filed in the probate court on October 22, 1987. On December 7, 1987, the court admitted the will to probate and granted letters testamentary to Louise Gary, the sole beneficiary under the will. On that same date, the plaintiffs filed in the probate court a document that read in pertinent part:

"Re: Probate of Will of

Ada C. Stevens, also known as

Mrs. L.M. Stevens, Jr.

"The siblings of L.M. Stevens, Jr., hereby file notice of contest of the probate of the Will of Ada C. Stevens, aka, Mrs. L.M. Stevens, Jr., insofar as this Will transmits title to any real property on the grounds that testator did not have title or ownership or any rights to inheritance of any real property and therefore cannot transmit.

"Testator's husband, L.M. Stevens, Jr., predeceased her ... and he died intestate.

"L.M. Stevens, Jr., died before 1-1-83 and therefore died under the old Probate Code.

"In Alabama the laws of intestate succession in effect on date of the decedent's, L.M. Stevens, Jr.'s, death are controlling.

"Authority: Stallworth v. Hicks 434 So.2d 229 (Ala.1983)

"Page 1 of 2 pages

"Filed 12-7-87

"Frank T. Salter"

Louise Gary, appellee and the executor of the will, contends that she did not become aware of the filing of the notice of contest until July 1988, at which time she filed a petition for removal of the estate from the probate court to the circuit court. The cause was removed on August 4, 1988. Subsequently, the circuit court granted Gary's motion to dismiss the contest.

In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Code of Alabama 1975, before probate, the contest may be instituted in the probate court or (2) under § 43-8-199, Code of Alabama 1975, 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.

Under either § 43-8-190 or § 43-8-199, an action to contest a will can be brought only by a person interested in the will or by any person who, had the testator died intestate, would have shared in the estate.

The appellants held as tenants in common with their brother, L.M. Stevens, Jr., a large city lot. In its order, the trial court found that the entire estate of L.M. Stevens, Jr., both real and personal, descended to his widow, Ada C. Stevens, pursuant to § 43-3-1(1), Code 1975 (repealed effective January 1, 1983) (see Act 80-764, Ala.Acts 1980 ). The appellants assert standing to contest the will of Ada C. Stevens based on their status as tenants in common with Ada C. Stevens as the successor to her husband's interest.

In the case of Allen v. Pugh, 206 Ala. 10, 89 So. 470 (1921), the Court, in reviewing the right to contest a will, construed the clause "any person interested in any will" to embrace any person who has an interest in the estate disposed of that would be conserved by defeating the probate of the will or jeopardized or impaired by its establishment.

In Braasch v. Worthington, 191 Ala. 210, 213-14, 67 So. 1003 (1915), the Court

stated: "A contestant of a will must have some direct legal or equitable interest in the decedent's...