Whited v. Holmes

• Citation: 816 So.2d 20
• Parties: Sallie WHITED, as executrix of the estate of Glenn H. Holmes, deceased v. Laura Jean HOLMES.
• Decision Date: 05 October 2001
• Court: Supreme Court of Alabama

816 So.2d 20

Sallie WHITED, as executrix of the estate of Glenn H. Holmes, deceased v. Laura Jean HOLMES.

1001002.

Supreme Court of Alabama.

October 5, 2001.

William E. Bright, Jr., Birmingham, for appellant.

Wayman G. Sherrer, Oneonta, for appellee.

HARWOOD, Justice.

Sallie Whited, the executrix of the estate of Glenn H. Holmes, deceased, appeals from a judgment awarding Laura Jean Holmes, the widow of Glenn H. Holmes, an elective share of his estate pursuant to § 43-8-70(a)(2), Ala.Code 1975. We affirm in part, reverse in part, and remand.

Glenn H. Holmes and Laura Jean Holmes were married on August 9, 1980. They were divorced in the spring of 1991, but they remarried in October 1991. Glenn Holmes died on March 18, 1999, and on March 23, 1999, Whited, the decedent's daughter, filed his will in the probate court. On April 9, 1999, Whited was appointed the executrix of the decedent's estate. On April 27, 1999, Holmes filed a "Petition for Homestead Allowance," pursuant to § 43-8-110, Ala.Code 1975, and a "Petition for Exempt Property," pursuant to § 43-8-111, Ala.Code 1975. Both petitions were granted on June 10, 1999. At some point not specified in the record, Whited filed certain claims against the estate, including one for funeral expenses. As stated in her brief, she also petitioned the court "to include certain assets belonging to the decedent's wife [Holmes] in the estate of the deceased." On October 20, 1999, Whited had the action removed to the circuit court. On August 17, 2000, a hearing was held on Whited's claims. After receiving ore tenus evidence, the circuit court issued an order on November 13, 2000. In pertinent part, the circuit court's order stated:

"Glenn H. Holmes and Laura Jean Holmes resided in a marital home located on the following described property. [No property description appears in the order.]

"In November of 1980 Laura Jean Holmes was the grantee of a conveyance of other property from the heirs at law of Willie E. Ashworth, the father of Laura Jean Holmes. However, a life estate was reserved in Ollie Bell Ashworth, the mother of Laura Jean Holmes, reserving to Ms. Ashworth the use and enjoyment of the premises conveyed as long as she lived. Mrs. Ollie Bell Ashworth is still living as of this date, thus giving Laura Jean Holmes a remainder interest only in said property at this time.

"At the time of the conveyance, a mortgage was given with Laura Jean Holmes and husband, Glenn H. Holmes as mortgagor, and Ollie Bell Ashworth as mortgagee.

"Although titled in the name of Laura Jean Holmes with the use and enjoyment reserved in Ollie Bell Ashworth during her life, the Holmeses used the property jointly during their marriage for hay for the cattle. The heirs of Glenn H. Holmes seek, in some way, to have this property included in his estate. The Court knows of no law authorizing the transfer of property titled in a surviving spouse, to the estate of the deceased spouse, solely because the property was used jointly during the marriage. No citation to law authorizing such has been furnished to the Court by either counsel.

"The Court finds the value of the interest in real property of Glenn Holmes in the homeplace of the parties to be $100,000.00

"Personal Property

"The Court finds that the following is a list of personal property owned by Mr. Glenn Holmes at the time of his death:

"Cattle(subsequently sold) $6,800.00 1995 Ford automobile 7,000.00 1983 Ford LTD 500.00 1976 Ford Pickup 800.00 1972 Volkswagen 250.00 Farm Tractor and Equipment 3,000.00 Farm Picture 350.00 Pistol 150.00 Cemetery Lots 250.00 Fireproof Safe 50.00 Wood-burning Insert 900.00 Satellite Dish 400.00 "Value of Personal Property $20,450.00

"Order of the Court

"Based upon the above and foregoing findings, it is therefore,

"ORDERED, ADJUDGED and DECREED that the total value of the Estate of Glenn H. Holmes at the time of his death was $120,450.00.

"It is further ORDERED, ADJUDGED and DECREED that Laura Jean Holmes is entitled, as widow, to the following sums from said estate:

"(1) Pursuant to § 43-8-110 Code of Alabama a Homestead Allowance in the amount of $6,000.00.

"(2) Pursuant to § 43-8-111 Code of Alabama, an Exempt Property Allowance of $3,500.00.

"(3) Pursuant to § 43-8-111 Code of Alabama, 1/3 of the net value of the estate (after the deduction of the Homestead Allowance and Exempt Property), said Elective Share being the amount of $36,983.33.

"It is further ORDERED, ADJUDGED, and DECREED that the sum of $7,000.00 be deducted from the Elective Share determined herein, as the value owed by the widow for the 1995 Ford Automobile purchased from the estate.

"It is further ORDERED, ADJUDGED, and DECREED that the sum of $39,483.33 shall be paid by the executrix, Sallie Ann Whited to the widow within 42 days of the date of this Order, unless appeal is taken and proper Supersedeas Bond posted."

Whited filed a notice of appeal in the Court of Civil Appeals on December 19, 2000. The Court of Civil Appeals transferred the case to this Court on March 6, 2001, because it lacked subject-matter jurisdiction. Whited's brief presents two general issues that question (1) the trial court's refusal to include certain real property in the estate and (2) the trial court's refusal to allow certain claims by Whited against the estate and to reduce the value of the estate by the value of items allegedly taken by Holmes. Based upon our review of the arguments presented, Whited actually presents four separate contentions on this appeal: (1) that the trial judge improperly excluded from the estate of the deceased real property owned by Holmes; (2) that the trial court erred in failing to deduct from the estate the funeral expenses before calculating Holmes's elective share; (3) that the trial court erred in failing to deduct certain items from the estate before calculating the elective share; and (4) that the trial court erred in failing to deduct certain sums from Holmes's elective share for items she received from the estate.

Whited's first argument is that the real property described by the trial court as that conveyed to Holmes by her father's heirs, subject to a life estate in her mother, should have been included in the decedent's estate because the property had been used jointly by Holmes and the decedent during their marriage. Whited contends that Beck v. Beck, 564 So.2d 979 (Ala.Civ.App.1990)(holding that once an asset has been commingled during a marriage, the asset loses its identity and can be considered joint property); Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981); and Alston v. Alston, 555 So.2d 1128 (Ala. Civ.App.1989)(both holding that when property is used for the benefit of the family during marriage, it becomes subject to the trial court's jurisdiction) apply to make the property in question part of the estate.

Whited's reliance on these cases is misplaced. All three cases concern property divisions as a result of a divorce. They do not govern the distribution of property in an estate. The distribution of property in a divorce proceeding, requiring consideration of the separate estate of the spouse requesting alimony or a division of property, is governed by § 30-2-51(a), Ala.Code 1975.¹See MacKenzie v. MacKenzie, 486 So.2d 1289 (Ala.Civ.App.1986)

(discussing the type of divorce case in which the judge must determine the separate estate of the spouse in order to calculate alimony and property division.) This Code section clearly does not apply to the distribution of property in a decedent's estate.

The deed conveying the property to Holmes contains the following language:

"That in consideration of Ten and no/ 100 ($10.00) Dollars and other good and valuable consideration to the undersigned grantor (whether one or more), in hand paid by the grantee herein, the receipt whereof is acknowledged, I or we, Laura Jean Holmes & husband, Glenn H. Holmes; Joyce Noles & Husband, Wayne D. Noles; Royce Ashworth, a single man; Johnny C. Ashworth & wife, Judy Ashworth; Ollie Bell Ashworth, a widow (herein referred to as grantor, whether one or more), grant, bargain, sell and convey unto Laura Jean Holmes (herein referred to as grantee, whether one or more), the following described real estate....

". . . .

"TO HAVE AND TO HOLD to the said grantee, his, her or their heirs and assigns forever, subject, however, to a life estate in the premises herein conveyed expressly reserved to Ollie Bell Ashworth for so long as she may live.

"And we do for ourselves and for our heirs, executors, and administrators covenant with the said GRANTEES, their heirs and assigns, that we are lawfully seized in fee simple of said premises; that they are free from all encumbrances, unless otherwise noted above; that we have good right to sell and convey the same as aforesaid; that we will and our heirs, executors and administrators shall warrant and defend the same to the said GRANTEES, their heirs and assigns forever, against the lawful claims of all persons."

The deed conveys from the grantors, a group which includes the decedent, the grantors' entire interest in the property to Holmes's mother for life, with a remainder in Holmes. Any property interest the decedent may have had before this deed was clearly conveyed to Holmes and her mother, who continues to reside on the property. Therefore, after this conveyance the decedent had no interest in the property, and nothing in the record shows that he ever regained any interest in the property. Whited's arguments based on divorce jurisprudence cannot apply to change this result, and the trial court did not err in refusing to include the property in question in the decedent's estate.

Whited's second argument is that the amount she paid for funeral expenses, which she paid with funds from the estate, should have been deducted from the gross estate before any exemptions or exceptions were calculated. Holmes argues that Whited failed to make a claim for funeral expenses within the...