Thames v. Thames

• Decision Date: 20 March 2015
• Docket Number: 2140052.
• Citation: 183 So.3d 168
• Parties: Mary Elizabeth THAMES et al. v. JaNell Searcy THAMES.
• Court: Alabama Court of Civil Appeals

183 So.3d 168

Mary Elizabeth THAMES et al.

v.JaNell Searcy THAMES.

2140052.

Court of Civil Appeals of Alabama.

March 20, 2015.

Keith S. Miller of Wilkerson & Bryan, P.C., Montgomery, for appellants.

Catherine R. Steinwinder of Steinwinder & Ratliff, LLC, Montgomery, for appellee.

THOMPSON, Presiding Judge.

On March 25, 2014, JaNell Searcy Thames ("JaNell") filed a petition in the Montgomery Probate Court ("the probate court") seeking to probate the will of her late husband, David Whetstone Thames ("the decedent").¹ Regions Bank, the named executor of the decedent's will, declined to serve as executor. In her petition, JaNell sought to be appointed the personal representative of the decedent's estate ("the estate").

In April 2014, Mary Elizabeth Thames ("Mary Elizabeth"), Clinton Moye Thames ("Clinton"), and David W. Thames, Jr. ("David"), the decedent's children from a previous marriage (hereinafter referred to collectively as "the children") filed a petition seeking to appoint David as personal representative of the estate and asking the probate court to deny JaNell's request that she be appointed in that capacity.² The probate court scheduled a hearing for June 26, 2014. The record indicates that David was unable to obtain a bond as security for his serving as personal representative. On June 3, 2014, the children jointly petitioned for Mary Elizabeth's appointment as personal representative of the estate.

The probate court conducted the scheduled hearing on the pending petitions. It also allowed the parties to submit post-hearing briefs in support of their positions. On July 22, 2014, the probate court entered a judgment admitting the decedent's will to probate and appointing JaNell as the personal representative of the estate. On July 29, 2014, the probate court entered an order amending the July 22, 2014, judgment pursuant to Rule 60(a), Ala. R. Civ. P. The children filed a timely postjudgment motion, which the probate court denied. The children timely appealed, raising a number of issues.

Initially, we note that the children have jointly filed a brief on appeal. Several of the arguments set forth in that brief challenge the probate court's determination that Mary Elizabeth was not a resident of Alabama. None of the parties have favored this court with any argument concerning the standing of all the children to assert arguments that pertain to rulings concerning Mary Elizabeth's claims before the probate court. We have first addressed the issues properly raised by Mary Elizabeth alone, followed by those raised by all the children.

Mary Elizabeth first argues that the probate court erred in determining that she was a not a resident of Alabama. The probate court rejected Mary Elizabeth's request that she be appointed personal representative of the estate, finding that she had failed to demonstrate that she is a resident of Alabama. One must be a resident of Alabama in order to serve as an administrator of an estate here;³ § 43–2–22, Ala.Code 1975, provides, in part:

"(a) No person must be deemed a fit person to serve as executor who is under the age of 19 years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence or want of understanding, is incompetent to discharge the duties of the trust. Nor shall any nonresident of the state be appointed as administrator unless he is at the time executor or administrator of the same estate in some other state or territory or jurisdiction, duly qualified under the laws of that jurisdiction."

(Emphasis added.) But see § 43–2–191, Ala.Code 1975, and Ex parte Adams, 168 So.3d 40, 45 (Ala.2014) (holding that an executor named in a will is not "subject to the nonresident restriction set forth in § 43–2–22").

On June 3, 2014, the same day on which the children jointly filed their petition seeking the appointment of Mary Elizabeth as personal representative of the estate, Mary Elizabeth executed and filed in the probate court a notarized statement declaring that, "pursuant to [§ 12–13–23, Ala.Code 1975,] she declares that her place of residence is [an address in Montgomery]." Mary Elizabeth first argues before this court that, for the purposes of § 43–2–22, her June 3, 2014, declaration was sufficient, in and of itself, to establish her status as an Alabama resident. Section 12–13–23(b), Ala.Code 1975, provides:

"(b) Any person who is absent from this state on military duty, eleemosynary journey, mission assignment, or other similar venture may designate any place within the State of Alabama as his or her residence. Upon filing a notarized declaration of residence with the judge of probate of the county in which the designated place of residence is located, the person and his or her dependent children shall thereafter be considered residents of that designated place for all purposes under the law."

Mary Elizabeth focuses on the second sentence of § 12–13–23(b), contending that because she executed a declaration pursuant to that Code section, she must be considered an Alabama resident. She cites In re Incorporation of Caritas Village v. Fuhrmeister, 152 So.3d 1238, 1245 (Ala.2014), as support for her argument that our supreme court has stated that a declaration made pursuant to § 12–13–23(b) makes one a resident "for all purposes under the law." However, the sentence in which that statement is made in In re Incorporation of Caritas Village, supra, contains a qualifier: "We note that although § 12–13–23(b) provides that a declarant is considered a resident of the place designated in the declaration for all purposes under the law, the statute goes on to provide that the declaration" does not entitle the declarant to be considered a resident under several aspects of the law. In re Incorporation of Caritas Village, 152 So.3d at 1245 (emphasis added). In that case, the petitioners wanted to incorporate a village, and they submitted multiple declarations executed under § 12–13–23(b). Our supreme court held, among other things, that those multiple § 12–13–23(b) declarations did not operate to demonstrate that a sufficient number of residents of the village met the requirements for incorporation of the village.

In arguing that her § 12–13–23(b) declaration establishes her as an Alabama resident, Mary Elizabeth also cites a case from our supreme court as authority for the proposition that § 12–13–23(b) must be interpreted according to its clear language:

" ‘ "The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect." ’ "

Austin v. Alabama Check Cashers Ass'n, 936 So.2d 1014, 1026 (Ala.2005) (quoting Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000), quoting in turn IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992) ).

The language of § 12–13–23(b) clearly states that a person "who is absent from this state on military duty, eleemosynary journey, mission assignment, or other similar venture may designate any place within the State of Alabama as his or her residence." (Emphasis added.) Such a declaration made pursuant to that Code section operates to establish the "person who is absent from this state" as a resident. § 12–13–23(b). "Absence" is "[t]he quality, state, or condition of being away from one's usual place of residence." Black's Law Dictionary 8 (10th ed.2014). Thus, the clear language of § 12–13–23(b) demonstrates that a declaration made pursuant to that Code section is for the purpose of establishing the location of a person's usual place of residence if that person is absent from Alabama for military, charitable, religious, or other, similar reasons. The legislature's express statement of its legislative purpose in enacting § 12–13–23 supports that conclusion. As the title to the act that has been codified as § 12–13–23 reflects, the purpose of § 12–13–23 is

"[t]o authorize persons absent from the state on military duty, mission assignment, or other similar purposes to designate a place of residence in this state; and to specify that the designation would not be effective for the purpose of voter registration or qualification for elected office."

Act No. 2012–408, Ala. Acts 2012, p. 1112. See also In re Incorporation of Caritas Village, 152 So.3d at 1245 ("One of the purposes of this statute is to allow military personnel and missionaries who are on extended travels out of state to declare residency in Alabama.").

Mary Elizabeth has not alleged or presented evidence indicating that she is "absent" from Alabama, i.e., that she is away from Alabama, which is her usual place of residence. Also, she has not alleged or presented evidence indicating that she had been absent for any purpose set forth under § 12–13–23(b), i.e., that she was temporarily living outside Alabama for military, charitable, religious, or similar reasons. Rather, the evidence indicates that Mary Elizabeth has lived and worked, as either an attorney or an accountant, in Atlanta, Georgia, for more than 20 years.⁴ Given the clear language of § 12–13–23(b), the legislative statement of intent regarding § 12–13–23, and the evidence in the record, we conclude that Mary Elizabeth has failed to demonstrate that the probate court erred in finding that her declaration made pursuant to § 12–13–23(b)"was not sufficient in and of itself" to establish that she is a resident of Alabama.

Mary Elizabeth next argues before this court that, assuming that her declaration made pursuant to § 12–13–23(b) was not alone sufficient to establish that she is an Alabama resident, the probate court erred in determining that other...